Exactions and Burden Distribution in Takings Law

Abstract

In the last several decades, there has been a marked shift in local government financing away from the use of general revenue taxes and toward non-tax revenue raising devices such as exactions. We argue that the Supreme Court, in its exaction cases, missed a golden opportunity to slow this troubling trend toward the greater privatization of local government financing. In addition, we explain how the Court's exaction cases are inconsistent with the goal of burden distribution as reflected in the Court's takings jurisprudence. We propose that the constitutional standard applied to exactions be reformulated so as to account explicitly for burden distribution. Such a reformulation will make exactions law more consistent with the purposes of the Takings Clause and will constitute an important first step in restoring a more sensible balance between tax and non-tax revenue devices.