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Tennessee Law Review

Renee Burbank

Document Type

Article

Abstract

Illegal exactions, or unlawful exactions, are an amorphous category of government activities with two unifying characteristics: (1) the government acts in its sovereign capacity but beyond its authority, and (2) its action enriches the government at a person's or organization's expense. The law of illegal exactions has developed through infrequent clusters of cases over 150 years, without substantial academic evaluation or discourse. The case law, thus, often lacks theoretical coherence. Lacking a single defining framework to use, courts have borrowed from torts, Fifth Amendment takings, and due process claims to define the scope of illegal exactions. Although it is an ill-defined cause of action, illegal exactions provide rich possibilities for holding the government accountable and promoting social justice in a variety of areas of law.

This Article outlines the history of the claim and its gradual expansion in federal courts. It then identifies open questions in illegal exaction law, including whether plaintiffs' and government officials' intentions should affect the outcome of such cases and how to measure damages or payment to prevailing plaintiffs. Next, the Article argues that, contrary to the prevailing case law, courts should evaluate illegal exaction claims as federal common law claims rather than illegal takings or due process claims. Last, this Article suggests new areas in which advocates could use illegal exaction claims to hold the government accountable and make clients whole.

Publication Date

2020

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