Brian Angelo Lee*
Takings law has long contained a puzzle. The Fifth Amendment to the U.S. Constitution requires the government to pay “just compensation” to owners of private property that the government “takes.” In ordinary circumstances, this requirement applies equally whether the property is confiscated or destroyed, and it also applies to property confiscated in emergencies. Remarkably, however, courts have repeatedly held that if the government destroys property to address an emergency, then a “necessity exception” relieves the government of any obligation to compensate the owner of the property that was sacrificed for the public good. Although the roots of this startling principle stretch back for centuries, existing literature offers neither a systematic analysis of the justifications that have been offered for the principle nor a developed normative account of what the correct approach should be. This Article seeks to remedy both of these significant gaps in the current understanding of takings law. The Article identifies three pivotal but commonly overlooked distinctions and explains how they interact to provide a general theory of compensation for emergency takings. First is a distinction among different roles that compensation may play in any given situation. Second is a distinction between two different types of “necessity,” each of which has a different normative implication. Third is a distinction among amounts of compensation that might be owed. Recognizing these distinctions in turn reveals why the main justifications of the necessity exception are unpersuasive, why courts nevertheless so often have been inclined to endorse that exception, and what the correct approach to emergency takings actually is: when the need to destroy property in an emergency is accompanied by grave constraints on the ability to pay compensation, then an obligation to pay “just compensation” for the destroyed property remains, but the amount of that compensation changes. Under such circumstances, what justice requires is partial compensation.
* Professor of Law, Brooklyn Law School. My thanks to Henry E. Smith, Christopher Serkin, Amnon Lehavi, Gregory Keating, and to participants in the Private Law Workshop at Harvard Law School, the Junior/Mid-Career Faculty Workshop at the University of Toronto Faculty of Law, the North American Workshop on Private Law Theory at McGill University Faculty of Law, the Colloquium on Property Law & Theory at George Mason Law School, the Private Law Theory Workshop at William & Mary Law School, and the Midwestern Law and Economics Association annual meeting at Notre Dame Law School for their helpful comments on previous drafts. Any errors are solely my own. The Brooklyn Law School Dean’s Summer Research Stipend provided financial support for this project.