Property Essay 128 Harv. L. Rev. 1630

Anticipatory Remedies for Takings



The Supreme Court has rendered two lines of decisions about the remedies available for a violation of the Takings Clause. One line holds that courts have no authority to enter anticipatory decrees in takings cases if the claimant can obtain compensation elsewhere. The other line, which includes three of the Court’s most recent takings cases, results in the entry of an anticipatory decree about takings liability. This Essay argues that the second line is the correct one. Courts should be allowed to enter declaratory or other anticipatory judgments about takings liability, as long as they respect the limited nature of the right created by the Takings Clause and do not usurp the limited waivers of sovereign immunity for actions to recover compensation from the government. Anticipatory litigation should not be routine. In ordinary condemnation cases and in most regulatory takings cases that turn on the particular facts presented, the action seeking compensation should provide complete and adequate relief. But where remitting property owners to an action for compensation will result in an incomplete, impractical, or inefficient outcome, anticipatory relief about whether a taking has occurred is appropriate and should be permissible. The Essay argues that recognizing the appropriate role for anticipatory remedies under the Takings Clause would help reduce the many pitfalls of litigating takings claims, and provide more consistent and effective enforcement of this constitutional right.

* Charles Evans Hughes Professor, Columbia Law School. I have benefited from advice from John Echeverria, Michael McConnell, Henry Monaghan, and Justin Pidot, and from feedback at symposia at New York University and William and Mary Law Schools where I presented earlier versions of this Essay.