By Mike Dorf
Last week I expressed skepticism about the validity of the distinction between failure-to-give and taking-away that Judge Reinhardt's opinion draws in Perry v. Brown. I explained that while I understood the motivation of attempting to invalidate Prop 8 on California-only grounds, I didn't think the distinction should make much of a difference in the context in which it was invoked -- except perhaps as a piece of evidence in a case attempting to show that Prop 8 was motivated by "animus" in violation of Romer v. Evans. Similar skepticism has since been expressed by others who share my general view that there ought to be a constitutional right to same-sex marriage. For a nice overview of the issue in political context, see David Cole's essay in the NY Review of Books.
But to say that the failure-to-give/taking-away distinction should not cut much ice in the Prop 8 case is not to deny that it is important in other contexts. Here I want to ask more generally: When does and should the distinction between failure-to-give and taking-away matter in the law? I have three examples in mind but I'd be very interested in additional suggestions from readers.
1) The most fundamental use of the failure-to-give/taking-away distinction in law tracks the act/omission distinction in deontological accounts of morality. Tort law and criminal law provide the most familiar examples. Tort law and criminal law impose very severe prices and penalties, respectively, for deliberately taking away someone's life, health or safety. By contrast, under the law of most American jurisdictions, there is no general duty to rescue a stranger, even if the rescue would cost the rescuer virtually nothing. Even those jurisdictions that impose Good Samaritan obligations punish failure to comply with such obligations much more leniently than they punish intentional deprivations.
2) State action doctrine in constitutional law utilizes the failure-to-give/taking-away distinction in much the same way as tort law and criminal law. Thus, in the DeShaney case the Supreme Court says that while the Due Process Clause forbids the government from depriving people of liberty (or life or property) without due process, government generally has no obligation to give people protection for their liberty (or life or property) against private deprivations. That is a natural (though not inevitable) reading of the language of the Due Process Clause and it extends more broadly to the Court's rights jurisprudence: Rights are rights against deprivations, not rights to assistance.
3) The Takings Clause of the Fifth Amendment embodies a more particularized failure-to-give/taking-away distinction. Suppose that a state had a longstanding common-law property rule making clear that certain categories of beachfront property could not be developed. The State would then be under no obligation to give development permission to any particular owner of a parcel of such beachfront property. However, if the background property rule included a right to develop, then a new regulation denying the beachfront property owner the right to develop could constitute a regulatory taking requiring just compensation. So holds the Lucas case.
Interestingly, none of the foregoing examples necessarily relies on the endowment effect as such. (The endowment effect means that people value things more highly if they already have those things than than if they do not). The normative force of the Takings Clause does not rely on the endowment effect because it only requires the payment of fair market value as just compensation, whereas compensation for the full value of loss might be higher.
In any event, I'd be interested in other instances in which the law already does and/or should draw the failure-to-give/taking-away distinction.