Brady on the "Damagings" Clauses

Maureen (Molly) E. Brady University of Virginia School of Law has posted The Damagings Clauses, which is forthcoming in the Virginia Law Review:

Twenty-seven state constitutions contain a clause prohibiting the “damaging” or “injuring” of property for public use without just compensation. Yet when compared to its relative, the Takings Clause of the federal constitution—which says that private property cannot be “taken” for public use without just compensation—the ways in which state courts interpret and apply their “damagings clauses” have remained opaque and virtually unstudied.

This Article provides the first comprehensive analysis of state damagings clauses. It traces the clauses to the threats to private property posed at the turn of the twentieth century as a result of rapid infrastructural improvement. These state constitutional provisions were meant to fix perceived inequities resulting from strict application of takings law: many jurisdictions would not recognize a right to compensation when public works affected use rights and drastically devalued property but did not physically invade or appropriate it. Drafters envisioned the damagings clauses as a powerful bulwark for property owners whose livelihoods and homes were affected yet not touched by public works. However, as state courts were tasked with the brunt of the interpretive work, their rulings coalesced around a variety of doctrinal limitations that severely undercut the clauses’ potency. As a result, modern interpretations of the clauses mainly provide coverage in a variety of contexts where the offending activity would already qualify as a physical-invasion taking under most federal precedents.

This Article argues that the damagings clauses deserve broader applications in condemnation law. Damagings comprise a more limited and historically supported category than regulatory takings, for which courts have long awarded compensation. Moreover, courts already try to mandate compensation for some of these types of injuries by manipulating ordinary takings law, leading to unnecessary doctrinal confusion. As a new wave of infrastructural growth looms, it is time for professors and practitioners to return their attention to these forgotten provisions of the state constitutions.