Per Se Non-Takings

Authors

Nestor M. Davidson, Fordham University School of LawFollow
Timothy M. Mulvaney, Texas A&M University School of LawFollow

Document Type

Article

Publication Title

Texas Law Review

Volume

104

Publication Date

2025

Keywords

property rights, supreme court, constitution

Abstract

In the discourse on the Takings Clause, disputes over methodology have long formed a kind of proxy war, with per se rules ordinarily underwriting strong constitutional protection for property rights and ad hoc standards more often vindicating public interests. At a moment when the Supreme Court is increasingly embracing the rules end of this rules–standards spectrum, this Article offers a novel perspective to challenge the conventional link between categorical reasoning and classical liberal conceptions of constitutional property.

To do so, the Article excavates a vast body of law denying takings liability through rule-like reasoning, an approach the Article calls per se non-takings. Examples of this underappreciated phenomenon are legion. Many involve blanket limitations on takings liability for interference with elements in the bundle of property rights, such as use and exclusion, through doctrines that include nuisance abatement, customary access privileges, and forms of reserved public ownership. In other instances, courts deny compensation for harming or expropriating private property because of overriding policy concerns such as emergency, necessity, law enforcement, and national security. And, more fundamentally, the legal system at times finds the Takings Clause categorically inapplicable—as with the appropriation of value that results from taxation—or redefines some property interests as no longer legitimate—as with the abolition of enslavement.

The Article maps the phenomenon of per se non-takings to provide insights into the complex operation of formalist reasoning in constitutional property. Undercutting long-standing convention, it argues that the rich array of normative justifications underlying the various categorical denials of compensation demonstrate that rule-like reasoning can advance social conceptions of property as much as it can bolster the absolutism underpinning the Supreme Court’s recent takings decisions. The Article’s nuanced picture of the contingent interplay of form and substance in takings jurisprudence offers a critical resource for courts, commentators, and advocates facing an era in which contestation over the balance of public imperatives and private rights in constitutional property will inevitably continue—as it must—but be increasingly displaced into per se terms.

Recommended Citation

Nestor M. Davidson and Timothy M. Mulvaney, Per Se Non-Takings, 104 Tex. L. Rev. 103 (2025)
Available at: https://ir.lawnet.fordham.edu/faculty_scholarship/1400

Rights

Copyright Texas Law Review Association.