The Public Claim on Private Property (WP-23-34)
David Dana
How much are private property rights subject to a public claim? In the United States’ legal tradition, this question is often addressed in the context of Takings Clause decisions. In recent decisions, the Supreme Court has reiterated that there is no Taking of private property if “background limitations” on title apply. But neither the courts nor legal academics have actually explained the concept of “background limitations.” This article explicates three plausible approaches to background limitations: originalism, consensus, and notice. The article illustrates these approaches with examples that are the subject of Takings disputes, including public access to private beaches, eviction moratoria during the COVID-19 pandemic, and wildlife habitat protection requirements for private land. If the courts explicitly used these three approaches to reach and explain their background limitations decisions, the case law would be more transparent and defensible. The three-approaches framework also might assist legal advocates and legislatures who want to have some say as to what courts will deem background limitations. Courts cannot be expected to clearly demarcate the public/private divide in property law in a way that fits all cases. But they can do better. Above all, this article is a call on, and a detailed roadmap for, courts to do better.