Document Type

Article

Publication Date

2018

Abstract

Can Congress pick and choose when it must follow the Constitution? One would expect not, and yet the Supreme Court has allowed it to do so. In multiple statutory programs, Congress has disclaimed constitutional property protections for valuable interests that otherwise serve as property. The result is billions of dollars’ worth of “disclaimed property” that can be bought, sold, mortgaged, or leased, but that can also be revoked at any moment without due process or just compensation.

Disclaimed property already represents a great source of value, and property disclaimers are at the core of major recent policies ranging from natural resource management to intellectual property governance. As legislatures continue with market-based regulations for environmental concerns or licensing arrangements for the sharing economy, the use of disclaimed property is poised to expand even further.

As a relatively recent phenomenon, property disclaimers have gone largely unconsidered by courts and scholars, but their increased importance now calls for closer study. Accordingly, this Article offers a practical and theoretical analysis of disclaimed property. It begins by examining property disclaimers arising in contexts that range from natural resources to intellectual property. It then synthesizes the judicial treatment of these interests and offers a model for valuing constitutional property protections. Building upon this background, it evaluates the constitutionality of property disclaimers as well as the policy justifications for such provisions. After a doctrinal and economic analysis, it ultimately concludes that while property disclaimers raise significant political process concerns, they may be constitutional nonetheless. However, the Article also concludes that property disclaimers are apt to be ineffective in their pursuit of legislative flexibility. Thus, this Article counsels that despite the current use and likely expansion of property disclaimers, they do not represent a beneficial or desirable policy tool.

Publication Citation

42 Harvard Environmental Law Review 391 (2018).

Disciplines

Constitutional Law | Environmental Law | Land Use Law | Law | Property Law and Real Estate | Public Law and Legal Theory

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