E. Garrett West (Yale Law School) and Tyler B. Lindley (BYU Law School), The Takings Clause Cause of Action, 79 Stan. L. Rev. (forthcoming 2027) on SSRN. Here is the abstract:
Does the Takings Clause create a self-executing cause of action for deprivations of property without just compensation? Many courts, judges, and commentators have concluded that it does, but the argument for a cause of action draws contestable inferences from the text of the Clause and the history of takings litigation. Historically, takings litigation proceeded either through inverse-condemnation proceedings made available by state or federal legislatures or through common-law claims against officials (and other persons). We offer three potential interpretations of that historical model for modern constitutional litigation: (1) that the remedies available for a taking of property depend entirely on the frameworks established by state and federal legislatures (a “legislative enforcement” model); (2) that the Takings Clause requires a constitutional cause of action (a “constitutional damages” model); and (3) that legislatures may craft the procedural mechanisms for takings litigation if those mechanisms remain generally adequate to protect the interests of property owners (an “adequacy” model). The adequacy model best fits the history, and under this approach courts should reject a Takings Clause cause of action but require governments to provide adequate remedies for takings claims. This doctrinal dispute about the Takings Clause also underscores the broader challenges for jurisprudential theories that look to history to determine constitutional doctrine, including theories which require courts to follow the Constitution’s original public meaning, to follow the original law as lawfully changed, or to turn to history and tradition when constitutional text is under-determinate. The discontinuities between historical and modern constitutional litigation require interpreters to exercise judgment about how best to maintain fidelity with a legal system different from ours.
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