Tuesday, October 16, 2012

Kuo on the Public Necessity Defense in Takings Law

KuoSusan Kuo (South Carolina) has posted Disaster Tradeoffs: The Doubtful Case for Public Necessity (Boston College Law Review) on SSRN.  Here's the abstract:

When government takes private property for a public purpose, the Fifth Amendment requires just compensation. However, courts have long recognized an exception to takings law for the destruction of private property when necessary to prevent a public disaster. In those circumstances, unless the state accepts an obligation to pay damages, individuals must bear their own losses.

This Article contends that the public necessity defense should be rejected. First, the tight timeframe and limited options typical in a disaster response threaten to obscure the crucial role of government in planning for disasters and mitigating vulnerability. Second, and more fundamental, the deliberate infliction of harm remains wrongful, even if all available alternatives are worse and the situation could not have been averted or ameliorated through proper advance planning. A just-compensation rule — whether instituted via statute or judicial reinterpretation of the Fifth Amendment’s Taking Clause — would preserve the government’s emergency powers while reaffirming the rule of law and advancing the interests of social justice.

Steve Clowney


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