Givings.

AuthorBell, Abraham
PositionGovernment distributions of property
  1. INTRODUCTION

    Eclipsed by their celebrated twin, takings, givings occupy a crucial yet barely visible role in the universe of constitutional property law. While takings--government seizures of property--have been the subject of an elaborate body of scholarship, (1) givings--government distributions of property (2) -- have been largely overlooked by the legal academy. (3) Givings are ever-present and yet not discussed. They can be found in almost every field of government endeavor related to property. Every time the government "upzones," or changes a zoning ordinance to the benefit of certain property owners, it has executed a giving. (4) Similarly, when the government relaxes environmental regulations, a giving occurs. (5) The same occurs when the government grants a license to engage in a certain business or transfers title to land or a lesser property interest to a private actor. (6) Other examples are legion. (7)

    Like a reflection in a mirror, the massive universe of takings is everywhere accompanied by givings. For every type of taking, there exists a corresponding type of giving. In a recent article, (8) we argued that takings come in three varieties: physical takings, regulatory takings, and derivative takings. A physical taking occurs when the state seizes a property interest in order to put it to public use. A regulatory taking occurs when the state does not seize the property interest, but regulates its use in a manner that unduly diminishes its value. A derivative taking occurs when a taking (or a giving) diminishes the value of surrounding property. (9) In the same manner, givings come in three varieties. (10) A physical giving occurs when the state grants a property interest to a private actor, such as when it grants broadcasting rights (11) or easements to cable and cellular phone companies. (12) In a regulatory giving, the state uses its regulatory power to enhance the value of certain private properties. This occurs, for instance, when the state eliminates development restrictions in wetlands. (13) Finally, a derivative giving is present whenever the state indirectly increases the value of property by engaging in a physical or regulatory giving or taking. Instances of derivative givings include the building of a park or the shutting down of a power plant in a residential area. (14) In both of these cases, the value of nearby property increases as a result of the government action, even though the government action had no direct physical or regulatory effect on the nearby property.

    Given their importance and ubiquity, how have givings eluded scholarly attention? To the textualist, the answer is straightforward. The Fifth Amendment bars only uncompensated takings; (15) there is no "Givings Clause." But the textualist's answer cannot carry the day. (16)

    First, takings and givings are so inextricably related that one cannot have a coherent takings jurisprudence without an attendant givings jurisprudence. Consider the seminal takings case of Poletown Neighborhood Council v. City of Detroit. (17) The City of Detroit seized a number of private lots in order to transfer them to General Motors for building a new factory. The court's decision focused on the question of whether the seizure satisfied the public use requirement of the Takings Clause. (18) Lacking any background understanding of the role of the state in givings, the court preferred effectively to read the public use requirement out of the Takings Clause. (19) One imagines, however, that the court's decision would have been quite different had it been able to call on a body of givings law. Instead of dealing solely with the question of whether landowners' property could be seized, the court could have addressed the question of whether the government's action could properly be seen as a giving and whether General Motors would properly be required to pay for the giving.

    Second, once one recognizes that relative wealth is a potentially relevant baseline for examining state actions vis-a-vis property, one realizes that the barrier between givings and takings is far from clear. (20) When the state takes from Jane Smith, it has made her poorer relative to the rest of the world. When the state gives to everyone but Jane Smith, it has similarly made Jane Smith poorer. Yet, current takings jurisprudence is predicated on the assumption that the relevant baseline against which the government action is measured is absolute wealth rather than relative wealth; only diminutions in property value in absolute terms trigger compensation. Once relative wealth is considered, there is no longer any justification for continuing to ignore givings. Indeed, in the area of unconstitutional conditions, constitutional law already recognizes that failure to confer a benefit may be functionally equivalent to taking away a right. (21)

    Third, the same vices of the political system that give rise to constitutional protection for property in the Takings Clause also require protection against unfettered givings. The Takings Clause is meant, at least in part, to ensure that an organized "faction," in the Madisonian sense, (22) does not use its power to enrich itself at the expense of the unorganized public. (23) In the context of takings, the principal concern is that the faction will enrich itself by converting the private property of unorganized property owners and bringing it into the public domain. (24) In the context of givings, the major concern is that the faction will enrich itself from the public purse at the expense of the unorganized public. (25) Whether the faction organizes a taking or a giving, there is reason to worry about the public's ability to defend itself from the faction's predations.

    Finally, fairness and efficiency, the concerns animating takings jurisprudence, (26) mandate a givings jurisprudence as well. The efficiency rationale for the Takings Clause is to ensure that the state exercises its eminent domain power only when the aggregate benefit exceeds the aggregate cost. (27) Compensation for takings, on this view, forces the state to take into account the cost of its actions. (28) However, the efficiency rationale for takings compensation also dictates that the state properly measure the benefits of its actions. Just as the state's failure to internalize the cost of takings creates fiscal illusion and inefficiency, the state's failure to internalize the benefit of givings creates fiscal illusion and inefficiency. (29) Takings, when uncompensated, generate negative externalities; givings, when unaccounted for, generate positive externalities. From an economic standpoint, neither type of externality should remain outside the state's calculus. (30)

    The fairness principle embodied in the Takings Clause is that it is inequitable to "forc[e] some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole." (31) By the same token, it is inequitable to bestow a benefit upon some people that, in all fairness and justice, should be given to the public as a whole. In a giving, a small group is able to force the public as a whole to subsidize the group's preferential treatment. For example, when the state permits logging companies to chop down trees in national forests for lumber, it is forcing the public as a whole to surrender natural resources for the private profit of the logging companies. (32)

    Like current takings jurisprudence, a givings jurisprudence must focus primarily on two questions. First, when does a giving occur? And second, when must the state collect a "fair charge" in exchange for the giving? This two-step inquiry parallels the two cardinal questions of takings jurisprudence. Translating the concept of givings into a coherent law thus requires many of the same compromises as the law of takings. Just as not every "taking" in the broadest sense is legally cognizable as such, not every "giving" need enter the law of givings.

    In this Article, we sketch out a framework for analyzing givings. Rather than shoehorn all givings into a uniform regime, we devise four conceptual clusters--each embodying a distinct aspect of the givings jurisprudence we seek to develop. These criteria may be applied by policymakers in determining whether a giving has occurred and which givings must be accompanied by a charge to the recipient. We list our proposed criteria by the order in which the inquiry should proceed.

    First, policymakers must determine whether the government act that bestows a benefit (and potentially constitutes a giving) could be characterized as a taking were it reversed. For example, if a downzoning of a certain magnitude would not have been considered a regulatory taking, an upzoning of the same magnitude should not be seen as a giving. Similarly, if a demand for a certain amount of funds from a given sector would be considered a tax or a penalty, rather than a compensable taking, the rebate of funds in the same amount should be considered a nonchargeable subsidy or a prize, rather than a chargeable giving. (33) Since wealth redistribution is often seen as a legitimate goal of government (34) and constitutes the cornerstone of programs such as unemployment benefits, it would not be proper to see all cash distributions as properly chargeable givings.

    Second, policymakers must determine the extent to which the recipients of the giving constitute a readily identifiable group and the degree to which the giving is available to the public at large. Here, too, the givings analysis can echo the takings analysis. The provision of public land and subsidized use of a public arena to a professional sports franchise in a for-profit, oligopolistic sports league looks very much like a giving. (35) The provision of public education to the public at large on equal terms looks much less like a giving.

    Third, policymakers must determine whether the giving can be clearly associated with a taking...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT