Governmental Forbearance: Myth or Reality? 

James W. Ely, Jr.

In their thoughtful book, Property,Thomas W. Merrill and Henry W. Smith posit that various factors induce governments to forbear from unduly undermining the expectations of property owners and, as a result, operate to safeguard the security of property rights.1 This Essay seeks to explore this hypothesis, and questions whether one can realistically expect governmental forbearance to provide meaningful support for the rights of individual property owners.

Can modern government be induced to forbear from making policy changes that unreasonably and unpredictably impair the value of property? Or to quote the Georgia Supreme Court in 1851, is the security of private property "confined to the uncertain virtue of those who govern?"2   I submit that the answer is far from obvious. There are, of course, a number of constitutional restraints on government, such as the Contract Clause,3 the Takings Clause, and the due process requirement.4 These are important provisions, but they have received such checkered enforcement in modern law that they can hardly be expected to compel governmental respect for the rights of property owners.5

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3 BRIGHAM-KANNER PROPERTY RIGHTS CONF. J. 125 (2014)