David has been “singled out.” He is the only one in his neighborhood legally prohibited from building a house. In a town full of residences, his lot alone must remain vacant. This is unequal, but is it unconstitutional?
Courts have continually grappled with this sort of question, vigilantly defending against unfair and unjust singling out. So important is this concern that the Supreme Court has emphasized it as the heart of the Fifth Amendment takings jurisprudence, and an entire Equal Protection doctrine has emerged around it.
However, courts and scholars have yet to critically examine the concept of singling-out, and as a result, singling-out protections languish as ineffective and counterproductive. This Article remedies the oversight and presents a solution.
By untangling the different singling-out theories, this Article prioritizes the approaches that best serve their underlying values. Moreover, this Article proposes an easily implementable, though counterintuitive, measure for improving both singling-out protections and Fifth Amendment takings jurisprudence.
76 Md. L. Rev. (2016)