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Abstract

This article constructs the concept of “equitable takings”—a new term of art to describe judicially crafted doctrines or decisions that result in a de facto redistribution of property interests without formal legislative authorization or compensation. It argues that the normative foundations of these equitable takings are insufficient to justify their growing influence in property law. This article examines key judicial decisions, surveys scholarly perspectives, and offers a critical evaluation of the principles that courts invoke to justify these takings. It ultimately contends that these equitable takings risk undermining both the rule of law and the stability of property doctrine. Equitable remedies that reallocate property rights should follow standards that answer the questions “why?” and “what for?”—standards that are clear, predictable, and consistent; and that are the result of democratic process. In three appendices, this paper offers proposed legislative language to clarify when civil courts may redistribute property rights for equity reasons. Courts may still resolve disputes in equity, but if an equitable remedy is without legislative authorization, then it would be an “equitable taking.” This article argues that courts’ use of equitable doctrines to reallocate property interests without legislative authorization constitutes a de facto taking, requiring normative and procedural limits comparable to those imposed on eminent domain. Recognizing equitable takings as judicial overreach allows us to have the conversation about when we should allow equitable remedies to reallocate property rights and when, instead, these equitable remedies “go too far.”

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