Getting Back the Public’s Money: The Anti-Favoritism Norm in American Property Law

American property law contains an anti-favoritism norm prohibiting government transfers of public funds or assets to private parties on favored bases. Martinez examines how this principle limits government ability to bestow public largesse unequally, addressing concerns that such favoritism constitutes robbery under law. The article discusses the Storyrock case, where Congress proposed $5 million earmarks to a private video company on noncompetitive basis, illustrating anti-favoritism concerns. Just Compensation Clauses in federal and state constitutions prohibit taking private property without just compensation, protecting individual rights against government extraction. The anti-favoritism norm functions inversely, preventing improper government enhancement of particular individuals' property rights. Martinez explores multiple settings where anti-favoritism doctrine operates: government regulatory conduct favoring certain industries, government grants distributed on favored bases, and infrastructure improvements benefiting specific properties. The article proposes anti-favoritism legal doctrine allowing government or individuals to claim recapture of improper public transfers. American property law should prevent government from systematically favoring particular parties through inequitable distribution of public resources.

Topics: Property · Administrative Law · Constitutional Law

Keywords: anti-favoritism norm · government contracts · Just Compensation Clause · public funds · property rights · regulatory favoritism · infrastructure