Friday, November 9, 2012

Hudson on the Tension Between the Takings Clause and Public Trust Doctrine

Blake Hudson (LSU) has posted The American Takings Revolution and Public Trust Preservation: A Tale of Two Blackstones (Sea Grant Law & Policy Journal) on SSRN.  Here's the abstract:

The U.S. Constitution was forged out of a revolution that both rejected and embraced aspects of English legal tradition. The Takings Clause and its subsequent jurisprudential interpretation represents a rejection of what the Framers at the time and constitutional Reframers since that time viewed as central government over-reaching and improper interference with private property rights. Though some form of due process had been guaranteed to English property owners since Magna Carta, U.S. takings jurisprudence has sought more stringent protections, relegating government appropriation of property — and even regulation in some cases — to specific circumstances and only after government compensation is paid. This view represents Blackstone’s description of property as the absolute right of every citizen.

On the other hand, the Framers left fully intact—and a different set of constitutional Reframers are increasingly seeking to use — the English common law doctrine of public trust to prevent private property rights from trumping the public’s interest in certain resources, especially in the coastal zone. This doctrine inherently conflicts with the Takings Clause in many cases, for if a resource is protected by the public trust, then any restrictions on property made pursuant to that protection cannot result in a taking — the restrained activity was never part of the property owner’s bundle of property rights to begin with. This represents Blackstone’s description of property as a right that “may be restrained by positive laws enacted for reasons of state or for the supposed benefit of the community.”

This essay highlights the inevitable legal tension between the Takings Clause and public trust doctrine and its implications for coastal zone resources in a time of climate change. Ultimately, our revolution to cast out both English occupiers and aspects of English legal tradition, while embracing and preserving other aspects of that tradition, represents a deeply rooted legal inertia that creates a unique set of challenges for protecting coastal resources in a time of climate change. Understanding this inertia, however, also presents opportunities to explore three implications of the Takings Clause-public trust tension: 1) resolution of future legal controversies related to climate change along the coast; 2) a potential rebalancing of modern takings jurisprudence, which has arguably disturbed the appropriate balance between private property protections and the public good; and 3) the creation of better governance structures through institutional design enhancements and adjustments—in this case focusing on the institution that is U.S. constitutional law.

Steve Clowney

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