The Mandate Issue

When Cyber Threats Loom, What Can State and Local Governments Do? Josephine Wolff (bio) and William Lehr (bio) State and local governments in the United States often struggle to muster sufficient funds and technical expertise to tackle the cybersecurity threats they face. A 2016 survey of 464 state, local, tribal, and territorial government entities conducted by the Multi-State Information Sharing and Analysis Center (MS-ISAC) found that these groups "show slow growth in their cybersecurity maturity" and are hindered primarily by a lack of resources.1 Allocating more resources for cybersecurity is therefore a crucial step for governments, but given the budget constraints public sector institutions face, it is not realistic to expect them to tackle every component of a comprehensive cybersecurity strategy on their own. Ideally, state and local governments would receive support from the federal government and regularly partner with federal agencies to address these threats and augment their limited resources. However, instead of fostering productive partnerships, these different levels of governments have found themselves at odds in the aftermath of serious cybersecurity incidents, hindering the ability to work together toward defending critical cyber infrastructure against attacks and mitigating the impacts of computer security breaches. Nevertheless, local, state, and federal governments should prioritize their strategic strengths when it comes to cybersecurity and invest their resources accordingly, relying on other levels of government to reinforce their weaknesses and provide additional funding and expertise as needed. For instance, in 2012, after the South Carolina Department of Revenue's (SCDOR) [End Page 67] computer systems were breached by intruders who stole 3.5 million tax records containing personal information of more than 75 percent of the population of South Carolina, the state government of South Carolina placed blame for the incident on a federal government agency, the Internal Revenue Service. Then-governor of South Carolina Nikki Haley insisted at the time of the breach, "There wasn't anything where anyone in state government could have done anything to avoid it."2 Instead of taking responsibility on the state government, she faulted the IRS for failing to require state revenue departments to encrypt their sensitive tax records, calling the IRS rules for data protection "archaic."3 The IRS, in turn, lashed out at South Carolina for failing to follow security standards recommended by the National Institute of Standards and Technology (NIST).4 This back-and-forth captures some of the challenges of promoting strong cybersecurity partnerships between the federal government and state or local governments: despite a common goal, they are often suspicious of each other's motives and eager to cast blame for failures and breaches because of both political and liability issues. More recently, this dynamic has given rise to tensions around the protection of voting systems, with some states rejecting the help proffered by federal government agencies such as the Department of Homeland Security (DHS) in 2018 to help assess and secure their voting technology.5 Government officials in several other states expressed suspicion in 2016 when DHS considered reclassifying voting technology as "critical infrastructure" for the purposes of enhanced protection.6 While all levels of government presumably share the goal of administering secure elections, their wariness of any interference and sense of mutual distrust has hindered attempts to partner effectively and pool their resources and expertise. In this paper, we consider how state and local governments can better leverage their particular strengths and capabilities to help mitigate the economic impact of cybersecurity incidents and data breaches. The first section identifies cybersecurity strengths and weaknesses of different levels of government and recommends how they should invest their resources and when they should look to other government entities for assistance. The second section focuses on the emerging classes of threats in cyberspace that state and local governments need to be better prepared to address, especially in light of the weaknesses identified in the first section. We emphasize how criminal business models are changing with the rise of threats such as ran-somware, extortion, and insurance fraud, and the ways in which state and local governments must adapt their policing and defensive efforts to these new types of threats and the associated schemes for monetization of stolen or compromised data...

Reviewed by: Antigay Bias in Role-Model Occupations by E. Gary Spitko Sandra F. Sperino (bio) E. Gary Spitko, Antigay Bias in Role-Model Occupations (University of Pennsylvania Press 2017), ISBN 978-08-12248-70-8, 272pages. In Antigay Bias in Role Model Occupations, Professor E. Gary Spitko discusses how employers regularly exclude people from role model occupations based on their sexual orientation and why such exclusion matters. The book’s central theme is “that employment discrimination on the basis of sexual orientation with particular respect to role-model occupations has served as a means to exclude gay people from the public social spaces that identify and teach whom our society respects and whom members of society should seek to emulate.”1 This book comes at an important time and makes a real contribution to the existing literature on anti-discrimination law. In the United States, Title VII is the federal law that prohibits discrimination because of sex. There is currently a circuit split about whether Title VII prohibits employment discrimination based on a person’s sexual orientation. In Hively v. Ivy Tech Community College of Indiana,2 the Seventh Circuit Court of Appeals recently held that Title VII’s prohibition on sex discrimination encompasses sexual orientation discrimination. However, several other circuit courts have held that Title VII does not prohibit sexual orientation discrimination.3 While there is a rich literature about why federal law should prohibit employment discrimination, Professor Spitko provides another compelling reason. His book demonstrates how employers have long excluded gay people from being lawyers, from serving in the military, from being teachers, and from playing professional sports once their sexual orientation became known. Professor Spitko convincingly argues that excluding people from these role model occupations has a host of consequences, including making it difficult for gay people to see themselves in role model occupations [End Page 986] and robbing them of the opportunities to publicly demonstrate the qualities that people often associate with role models. As Professor Spitko notes: For the contemporary gay aspiring lawyer, politician, or athlete, therefore, a ‘lavender ceiling’ caps expectations. It is impossible to know and difficult even to imagine what the other side of that lavender ceiling looks like. For the straight person as well, the lack of such gay pioneering role models hems in the concept of what it means to be gay.4 Many of the examples Professor Spitko examines are cases in which federal, state, and local governments prohibited individuals from serving in role model occupations because of their sexual orientation. The book tells the story of a woman who was fired from a job as a state lawyer because she married another woman. It details how the military excluded people from serving. It also discusses how local governments discriminated against gay teachers. Thus, the book shows how the government played a significant role in denying opportunity and also in creating the social norms about what kinds of people belong in certain jobs of authority. The government’s critical role in creating a climate of exclusion, calls for a special response from it to remedy its past role. As Spitko notes, “Gay people . . . have long been targeted for employment discrimination on the basis of their sexual orientation or sexual behavior. In the United States, the federal government was for many years the most prominent perpetrator of this discrimination.”5 Federal and local governments also maintained for decades that gay people were not fit for these role model occupations and made many arguments to support this claim. These arguments were enshrined in court cases and other government records. Spitko notes that while many people are aware of the “Red Scare” and the federal government’s efforts to exclude Communists from employment, they know very little about the “Lavender Scare.” Quoting from the book, “By the 1960s, the federal government had fired thousands of employees because of their alleged homosexuality and had denied employment to thousands more applicants on the same grounds.”6 A 1953 federal executive order that expressly listed sexual perversion as a basis for denying federal employment blocked employment in the private sector for openly gay individuals who needed a federal security clearance. Professor Spitko also critiques...

What impact have unfunded environmental mandates had on local governments? Carol Cimitile, Victoria Kennedy, Henry Lambright, Rosemary O'Leary, and Paul Weiland's two-pronged research studied seven local governments in New York State in 1994. First, they examined if and how these local governments prioritized risks (such as environmental and public health problems) to decide what environmental areas should have priority. Second, they examined how local governments were paying for the implementation of environmental mandates. The division of responsibility for environmental programs differs dramatically among the seven local governments studied. Common themes, however, were discovered and are discussed. The authors conclude that the problems posed by unfunded environmental mandates are the result of a number of factors including fragmentation (institutional, scientific, legal, and political), lack of information, and the rigidity of laws and regulations. They call for a national reexamination of environmental regulation. One of the first bills passed by Congress during the 1995 session and signed into law by President Clinton was P.L. 104-4 which addresses the issue of unfunded mandates. The passage of this law came on the heels of a number of other actions that called attention to a multitude of unfunded mandates being passed from the federal government to the states and from the states to localities. In 1993 and 1994, numerous resolutions were introduced in both the United States Senate and the House of Representatives to limit the passage of unfunded federal mandates. In 1993, President Clinton signed Executive Order 12875 (President Clinton, 1993) calling for a reduction in unfunded mandates. And October 27, 1993, was declared National Unfunded Mandates Day by the U.S. Conference of Mayors and the National Association of Counties. One purpose of all these actions was to call attention to the growing number of environmental mandates handed down from federal and state governments to local governments. Increasingly, the duty to implement environmental laws is falling on local governments. Environmental responsibility has shifted downward but without the needed funds to implement the programs mandated by the laws (ACIR, 1990., Fix and Kenyon, 1990; Schwartz and Peck, 1990; Zimmerman, 1992). Unfunded environmental mandates affect many of our nation's governments (DiLorenzo, 1993; U.S. Conference of Mayors/Price Waterhouse, 1993). Although much has been written on federalism and environmental policy (Fitzgerald, McCabe, and Foltz, 1988; Peretz, 1992; Tobin, 1992), little attention has been paid to the issue of how local governments are dealing with unfunded environmental mandates. The cost of federally mandated environmental programs has been estimated by the Environmental Protection Agency (EPA) to be $99 billion for 1990 alone (Pompilli et al., 1992). Yet there is little information on the impact of environmental mandates on individual local government entities. In one of the few studies on the subject, officials in Columbus, Ohio, estimated its portion of those costs to be $1 billion from 1992 to the year 2000 (Environmental Law Committee, 1991). In another study, the overall impact of environmental mandates on Anchorage, Alaska, was estimated to be $430 million from 1992 to 2000 (Municipality of Anchorage, Alaska, 1992). To gather further empirical evidence to understand better how local governments are coping with the unfunded environmental mandates facing them, we studied seven local governments in New York State. The focus of the research was two-pronged. First, we examined if and how these local governments prioritized risks (such as environmental and public health problems) in order to decide what environmental areas should have priority. Second, we examined how local governments were paying for the implementation of environmental mandates. Researchers asked the questions: Are risk and finance balanced by these local governments? …

All sources of funds--including federal state and local government plus patient fees and private contributions--spent for medical family planning in fiscal year 1974 are summarized. A minimum of $205 million was spent during the time for United States organized family planning services and Medicaid payments to private doctors who provided such services. About 80% of this came from the federal government; 14% was accounted for by private contributions and patient fees; 7% was provided by state and local governments. In Arkansas Mississippi North and South Dakota and Wyoming all family planning expenditures came from the federal government. Only in Alaska and California did funds from state and local governments exceed 20% of the total. In the District of Columbia about 1/2 the funds spent were from private contributions and patient fees. Federal funds were provided in the following form: 1) nearly 2/3 from project grants under Title X of the Public Health Service Act and Title V of the Social Security Act; 2) 19% from reimbursements under Medicaid; 3) 11% from Title IV-A of the Social Security Act; and 4) 5% from Title V grants to states. Charts with breakdowns by states and by type of federal funding are included. There are discrepancies in the figures used since over-reporting and under-reporting render the figures inexact.

Federal, state and local government budgets are being strained during recovery from the deep recession of 20089. Revenues to governments fell dramatically as a result of employment losses and the collapse of the real estate market. Concurrently, automatic stabilizers combined with expansionary federal fiscal policy and increased outlays con tributed to a deepening federal budget deficit. State and local governments generally must balance their budgets, but many benefited from the American Recovery and Re investment Act of 2009 and its now-disappeared stimulus funding. Federal debt and solutions to it will place fiscal stress on all levels of government. Federal transfers of funds to state and local governments are already falling and many states are increasing local government responsibilities for program spending. Stress will also result from cuts in public transfer programs to households as the federal government struggles to reduce its debt burden. The “twin transfer” threat—concurrent cutbacks in transfers to households and to local governments—has particularly strong implications for rural communities. These communities are highly dependent on transfers of public funds and this dependence has grown over time. A confluence of long-term trends has created a perfect fis cal storm and rural localities are finding themselves at its center. Demographic changes such as aging and outmigration of younger workers leave remaining rural households more dependent on transfers. In general, and particularly in the Southeastern United States, rural economies have gradually diversified out of agriculture and manufactur ing, and steep cutbacks in manufacturing and construction employment during the recession created a jump in rural unemployment rates that will likely take a number of years to reduce. Rural communities are vulnerable to cuts in funding for social services, education, and infrastructure at the same time that local demands for these services are growing. Rural households are vulnerable to potential declines in transfer payments and, as a result, find themselves less able to pay for locally provided services. In today’s legislative climate, state governments are transferring funding responsibilities to local governments. In Virginia, local governments are increasingly responsible for funding employee retirement programs, state support for education spending is dwindling, and transportation funding is being taken from general fund revenues, implying fewer dollars for local governments.

PurposeAmerican taxpayers heavily subsidize professional sports leagues and teams through direct and indirect public funding to build professional sports stadiums. Today, the proportion of public funding to build professional sports stadiums is greater than private contribution. In last 20 years, almost all of the 100 professional stadiums opened have received some form of direct or indirect financial assistance from local, state and federal government. The paper aims to discuss these issues.Design/methodology/approachThis paper investigates and documents most often used methods of stadium financing in recent years along with the historical shift from privately built stadiums to public funded stadiums in the span of 65 years. This paper also briefly reviews the literature evaluating the impacts of public spending for professional sports stadiums. The vast literature on the topic reveals that economists and city planners agree that public subsidy to build expensive professional sports stadiums cannot be justified on the grounds of perceived economic development.FindingsOver the years, funding mix to build professional sports facilities has changed dramatically. Local government has been coming up with various financing strategies involving new and old instruments.Originality/valueThe findings also suggest that share of local and state government has gone up in recent years compare to federal government share.

Throughout most of 2020, state and local governments faced severe budget crises as a result of the COVID-19 pandemic. Increased demand for state welfare services and rising state expenses related to controlling the spread of COVID-19 stretched state and local budgets to their breaking points. At the same time, layoffs, business closures, and social distancing measures reduced states’ primary sources of tax revenues. The traditional practice of American fiscal federalism is for the federal government to step in to provide aid during a national emergency of this magnitude, because state and local governments lack the federal government’s monetary and fiscal powers. But during the 2020 national emergency, the majority coalition in control of Congress was skeptical of this traditional practice, leaving federal aid limited and insufficient. Late in the day, and after a change of Presidents and in partisan control of the Senate, the federal government did eventually step in to provide substantial aid to state and local governments at the beginning of 2021. But, during 2020, it was not at all clear that this would occur. Regardless, due to heightened partisan polarization and related factors, it seems highly likely that future national emergencies will occur during times in which the federal government is again controlled by a majority coalition skeptical of the federal government’s traditional role of providing aid to state and local governments during downturns. This Article thus proposes a series of innovative state tax reform measures and other related reform proposals for modernizing states’ outdated tax bases and crisisproofing American institutions of fiscal federalism. These proposals were initially designed as reforms to mitigate the harmful state and local budget consequences of the COVID-19 pandemic. But a central role of legal scholarship should be to develop law reform solutions for legislatures and for other policymakers to prepare for future emergencies when those solutions may be urgently needed. To that end, this Article elaborates on and memorializes proposals initially developed for the 2020 crises, so that these proposals might be further developed to be ready as potential responses for future crises in which the federal government might once again prove unwilling to act sufficiently.

Proponents of federal environmental standards argue that competition for industrial development creates a “race to the bottom” in which states relax their own environmental standards to avoid losing businesses to states with more “business‐friendly” regulations. This article presents results from a unique survey of state clean air programs that show—contrary to the race to the bottom—a substantial number of states exceed federal EPA standards in a broad variety of clean air programs. Multivariate analyses of these state policies indicate that states strengthen their environmental programs in response to citizen demands rather than weaken their programs in deference to economic pressures.

Coastal communities are becoming increasingly aware of the risks to local infrastructure from more frequent and severe flooding, more extreme storm surges, and sea-level rise. As local governments are responsible for the lion’s share of land use decision-making and infrastructure development in coastal communities in the United States, local governments in the coastal zone will play a key role in adapting to the changing climate. Local decision-makers are facing hard questions about whether to build new infrastructure, adapt existing infrastructure to new standards, continue maintaining existing infrastructure as is, or abandon infrastructure altogether. Monroe County, Florida, for example, has begun to factor sea-level rise considerations into decisions related to road improvement projects, creating specific design standards addressing elevation and working to weigh the benefits and costs of different adaptation options such as elevating roads. Local governments are making these decisions in the context of increasingly unreliable and aging road systems, all while meeting current stormwater criteria which may require drainage improvements. Local decision-makers also are recognizing that crucial infrastructure decisions that directly affect their adaptation success are sometimes out of their control. In the case of the City of Tybee Island, Georgia, for example, tidal flooding restricts access to U.S. Highway 80 on an ever-increasing basis—yet the highway, the only road leading to the island, is not under the city’s jurisdiction but that of the Georgia Department of Transportation. To further complicate matters for local governments, both taking action and failing to act could result in either tort or “takings” liability in cases where a poorly maintained road results in harm to life or loss of property value from diminished access. Using the duty of state and local governments to maintain roads as a focus, this Article explores the complexity of adaptation at the local level as the impacts of climate change become more pronounced. Specifically, this Article presents an analysis of coastal communities in four South Atlantic states—Florida, Georgia, South Carolina, and North Carolina—that are currently facing questions about how to protect property and infrastructure as sea levels rise and flooding increases. This Article distills the findings of an interdisciplinary research project funded by the National Oceanic and Atmospheric Administration (“NOAA”), Florida Sea Grant, Georgia Sea Grant, South Carolina Sea Grant Consortium, and North Carolina Sea Grant. It also consists of a regional analysis comparing how tort and local government law can both further and hinder climate change resilience planning and climate adaptation efforts across these four states. Given that the federal government has offered little in terms of legislation, policy, or funding to direct or support climate adaptation activities, local efforts—and the litigation that inevitably results—are on the forefront of establishing the framework for defining adaptation policy more broadly and influencing the contours of tort and land use law. This Article, therefore, fills an important research gap in existing climate change literature, as it discusses how increased flooding at the local level is putting pressure on traditional conceptions of government duties, immunities, and authorities. This Article also uses roads as a case study to explore how sea-level rise is altering planning, maintenance, and funding for public infrastructure. This discussion focuses on local duties and responsibilities to build, rebuild, modify, or maintain existing roads for two primary reasons: (1) it is a widely shared function among jurisdictions and is the most obvious and visible type of infrastructure to the public, and (2) roads and highways, which are crucial to trade, defense, and nation-building, have long been under the purview of government regulation and funding in the United States. Recently, roads have also become a focal point in local government efforts to address rising sea levels and increased flooding. While sea-level rise may seem like a distant threat, many of its effects are being felt now, as low-lying coastal areas such as Norfolk, Virginia; Brunswick, Georgia; and Monroe County, Florida are experiencing increased nuisance or “sunny day” flooding occurring during seasonal or average high tides. Such flooding typically affects roads, temporarily closing them and increasing maintenance and repair costs. Residents who rely on these roads, often find themselves cut off from their homes, businesses, workplaces, schools, and local hospitals. In this way, sea-level rise and the flooding associated with it have become increasingly familiar and imminent, making roads the “climate change canary in the coal mine” for local governments. Part I of this Article briefly discusses recent sea-level rise issues and coastal science most relevant to the South Atlantic states—North Carolina, South Carolina, Georgia, and Florida. Part II analyzes and compares each state’s road ownership and maintenance duties, first by addressing the threshold question of ownership and jurisdiction, and then by explaining the multi-step analysis that governments must take to evaluate their duties to maintain roads in order to avoid liability. Part II also outlines the wide differences among the four states in our study area and observes a common thread, namely, that in almost each instance, local governments are faced with conflicting pressures that are likely to reward inaction over action and favor short-term political compromises over strategic investments in adaptation. This Part then details how counties and municipalities can discontinue their duties to maintain roads through the process of abandonment and how abandonment can lead to takings liability. Part III offers three proposals for encouraging coordinated adaptation action and protecting local governments that take action to address climate impacts: (1) redefining the scope of the duties that define reasonable conduct for governments in making decisions about public infrastructure in an era of rising sea levels; (2) defining the scope of sovereign immunity protections in a way that encourages innovative and creative decision-making in an era of climate uncertainty; and (3) calling for consistent adaptation duties and authorities at the state level as a crucial first step in mending the regulatory patchwork that currently exists at the state, county, and city levels in our four-state study area. Part IV concludes with a summary of observations and recommended next steps.

Regulation of assisted reproductive technologies in the United States

Few things in this world are inevitable. The notable exceptions are death, taxes, and debates about American federalism. Although the critical task of balancing the responsibilities among the federal, state, and local governments predates the American Constitution, the essential questions of American government remain: What should be the role of different levels of government in domestic policy? What is the appropriate balance of authority between the Federal Government and the 50 states? The Reagan Administration's proposal of a New Federalism is simply the most recent effort to sort out governmental roles. While discussions of federalism date back to our early history, the debate has intensified in recent years to a large degree because of the proliferation of federal grants-in-aid. Between 1965 and 1980, grants to state and local governments increased from $11 billion, or 9.2% of the federal budget, to $91 billion, or 15.8% of the budget. In elementary and secondary education, the increases were from about $2.1 billion to $8.7 billion over this same period (ACIR, 1981 p. 5; ECS, 1981, p. 30). As important as the dollar amount of grants is the fact that many of the programs developed in the last two decades have been designed to carry out federal purposes rather than assist state and local governments in carrying out their own priorities. Most grants have been categorical in nature and have included extensive regulations controlling program design and administration, finance, and the delivery of services. Layered on top of program requirements are a set of cross-cutting requirements, estimated by the Advisory Commission on Intergovernmental Relations

Nigeria is a decentralised federation with a three-tier system of federal, state and local governments. Arising from this decentralisation, local governments are empowered to exercise certain powers and responsibilities in areas relating to grassroots development, local democracy and service delivery. Hence, local government plays a pivotal role in local governance. This paper synthesises studies on local government in Nigeria within the broader context of decentralisation and local governance. It takes a careful look at the emergence of local government in Nigeria as well as the debate on local government autonomy. The paper reveals that Nigeria’s decentralisation policy has largely failed to deliver autonomy to local governments, whose funds, functions and activities are controlled by state governments. Key challenges to the effective performance of local government include inadequate funding, constitutional ambivalence, abuse of state control, political instability and corruption. The paper ends with recommendations for improving the functioning of local government to enhance local governance.

In this essay, the authors explore trends in intergovernmental relations (IGR) by analyzing recent education policies—No Child Left Behind Act, Common Core State Standards, and local empowerment policies. Identifying a resurgent role for local actors in education policy, the authors argue that recent federal efforts to exert more control have in many ways strengthened the influence of local actors by providing avenues for school districts and other local “non-system” players to challenge traditional governance arrangements. In a similar vein, because the federal government’s ability to achieve its goals rests primarily on actions of local players, federal policies have in the course of implementation strengthened the hand of many local actors. Based on their analyses, the authors stress that IGR is not a zero-sum game. As one level gains power in certain domains, other levels may simultaneously acquire power in the same or different domains. The authors further argue that relations among federal, state, and local governments are bidirectional. Federal policy often requires states and districts to alter local policies, and conversely, decisions made by states and districts can also influence federal decisions. The authors begin the essay with an overview of the intergovernmental landscape, followed by an analysis of current education policies to illustrate the ways in which local actors have retained and asserted significant control over schooling, despite the expanded federal role in education policy. The essay concludes with questions for future research and practice.

INTRODUCTION Litigating takings claims under the U.S. Constitution involves pitfalls not encountered in ordinary constitutional litigation. With respect to takings claims against the federal government, just compensation can ordinarily be awarded only by the Court of Federal Claims (CFC), an court located in Washington, D.C. (1) The CFC, however, has no authority to grant equitable or declaratory relief. (2) Consequently, claimants who wish to advance claims enforced by injunctions or declaratory judgments (for example, that the government action was arbitrary and capricious) must seek relief in an Article III court. This means claimants must often split their claims between two courts, giving rise to tricky questions of timing and preclusion. If they file in the wrong court, or get the sequencing wrong, consideration of the takings claim may be foreclosed. (3) Congress could clean up the mess by rewriting the relevant jurisdictional statutes, but has failed to act. (4) With respect to federal takings claims against state and local governments, the Supreme Court has held that such claims must be initially presented to state courts before they can be heard in federal court. (5) Any legal and factual issues that are resolved by the state courts, however, cannot be relitigated in a subsequent challenge in federal court. (6) Since federal and state takings clauses are generally interpreted the same way, this gives rise to what has been aptly called a trap. (7) Although federal constitutional claims ordinarily can be tried in federal court under 42 U.S.C. [section] 1983, (8) takings claims, because they must be initially presented to state courts, are generally barred from being considered by any federal court other than the U.S. Supreme Court on certiorari from the final state court decision, which is rarely granted. This Essay argues that these pitfalls of litigating federal takings claims rest, in significant part, on an erroneous understanding about the scope of federal judicial authority under the Takings Clause. Starting from the premises that the Constitution does not prohibit takings but only requires that they be compensated, (9) and that compensation can be awarded only in a court in which the government has waived its sovereign immunity, (10) the Supreme Court has concluded--sometimes--that federal courts of general jurisdiction have no authority to consider takings claims as long as an action for compensation is available elsewhere. On other occasions however--and usually without acknowledging the inconsistency--the Court has reviewed takings claims without requiring that they first be submitted to the court having authority to award just compensation. The latter line of authority, although poorly theorized by the Court, is the correct one. There is no rule of law that prevents federal courts of general jurisdiction from adjudicating claims that arise under the Takings Clause --as long as they confine themselves to the question whether there has been a taking that entitles the owner to compensation. Given sovereign immunity, however, any actual award of compensation against the federal government or one of the states (as opposed to a local government) must be made by a court having jurisdiction to render such a judgment. The vehicle for allowing federal courts to consider takings claims, even if they have no authority to award just compensation, is what I call an anticipatory remedy. (11) The primary type of remedy I have in mind is a declaratory judgment, authorized by the Declaratory Judgment Act of 1934. (12) In appropriate circumstances, federal courts of general jurisdiction should be able to entertain claims that a federal or state government unit is proposing to engage in action that would constitute a taking, and if so, to issue a declaration that compensation would be required if the government persists. Anticipatory remedies could also take other forms besides declaratory judgments. …

Abstract