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A particularly striking example is the protection of nonconforming uses under zoning laws. Uses established before the imposition of zoning have generally been allowed to continue, with some state courts requiring compensation for their abolition. Since 1950, many zoning ordinances have attempted a gradual phase out (“amortization”) of such nonconforming uses.21 In addition, retroactive legislation continues to be disfavored. The Supreme Court has held that retroactive laws that interfere with property rights require a double justification under the Due Process Clause— one justification for the interference, and a separate justification for making the law retroactive.22 And the Court has held that ambiguities about whether a statute applies retroactively are generally to be resolved in favor of the statute applying only prospectively.23 These understandings, cumulatively, provide additional security for property rights.
Stare Decisis
The understanding that courts should follow previous decisions unless they have a strong justification for overruling—known generally as stare decisis—serves also to protect expectations about property rights. It has long been held that “[c]onsiderations in favor of stare decisis are at their acme in cases involving property and contract rights, where reliance interests are involved.”24 Whether courts in fact are more faithful to precedent in matters implicating property rights is difficult to say. Certainly during the “rights revolution” of the 1970s, courts overturned a number of older
21.See, e.g., William B. Stoebuck & Dale A. Whitman, The Law of Property § 9.17 (3d ed. 2000).
22.See, e.g., Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 15–16 (1976).
23.Landgraf v. USI Film Products, 511 U.S. 244 (1994).
24.Payne v. Tennessee, 501 U.S. 808, 828 (1991).
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property doctrines as “vestiges of feudalism.” Landlord-tenant reforms, such as the adoption of the implied warranty of habitability, the duty to mitigate damages, and increased freedom for tenants to sublet or assign are examples of judicial reforms of this era. Still, the perpetuation of old forms of ownership, like the defeasible fees, as well as the resistance to Restatement-inspired reforms in the law of servitudes, suggest an enduring judicial caution about upending property law too much.
Note that the doctrine of stare decisis applies only to the courts, not other branches of the government. The functional significance of strong adherence to precedent in matters of property (assuming it exists) is that this channels law reform toward the legislature, where change can be made prospective. Such a channeling, of course, furthers general rule of law values of predictability and notice.
Waivers of Sovereign Immunity
Common law courts were originally royal courts, answerable to the King. Perhaps out of prudence, the courts decided the “King could do no wrong,” and hence could not be sued without his consent. Modern courts have perpetuated this understanding in the form of the doctrine of sovereign immunity: The government cannot be sued without its consent, which must be clearly given. If we are interested in promoting government forbearance through a rule-of- law strategy, sovereign immunity is potentially a serious barrier. The government cannot be held to account for the legality of its behavior unless it can be haled into a court of law, where a judgment directing the government to comply with the law can be rendered.
Fortunately, enough inroads have been made into sovereign immunity to allow the rule-of-law strategy to take hold. Under the Administrative Procedure Act, the federal government has broadly waived sovereign immunity for claims against government
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agencies for other than money damages.25 This allows courts to review and potentially set aside a broad array of government actions alleged to be contrary to law. Claims for money damages can be brought against the federal government under the Tucker Act either for breach of contract or a taking of property without just compensation.26 The waiver for contract claims has been held to include claims for reliance damages based on the government’s breach of a promise to forbear from certain kinds of regulations.27 The recognition of this cause of action could evolve into an important check on government policy reversals that undermine property rights. The waiver for takings claims has allowed the Takings Clause (considered below) to be given teeth insofar as it applies to the federal government.
State governments also enjoy sovereign immunity; indeed, the Supreme Court has held that the states enjoy a particularly powerful form of sovereign immunity that cannot be abrogated by Congress under its general Article I powers such as the Commerce Clause.28 Nevertheless, express constitutional limits on state power, such as the Contract Clause and the Takings Clause (which applies to the states through the Fourteenth Amendment) are recognized as overriding any sovereign immunity that subordinate state units, such as municipalities, might claim,29 and possibly even the immunity of states themselves. The Court has diluted the accountability of states under the Takings Clause by imposing an elaborate set of requirements of exhaustion of state remedies before plaintiffs can turn to federal courts for relief.30 Still, these exhaustion requirements shield the states only to the extent that they have
25.5 U.S.C. § 702.
26.28 U.S.C. § 1346.
27.United States v. Winstar, 518 U.S. 839 (1996).
28.Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996).
29.See First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304 (1987).
30.See San Remo Hotel v. San Francisco, 545 U.S. 323 (2005).