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This Article evaluates three interpretations of the Takings Clause capable of generating a regulatory takings doctrine. The first, the Epstein interpretation, puts primary emphasis on what it means to provide “just compensation” for takings; the second, the Penn Central interpretation, centers on what it means to “take” property; the third, which I call the Eagle theory, in honor of Steven Eagle, this year’s Brigham-Kanner prize recipient, focuses on when the government has taken “private property.” The Article argues that the Eagle theory has the most plausible basis in the original understanding of the Takings Clause, rests on a theory about the Clause that enjoys broad contemporary support, and is the most capable of generating predictable outcomes at a reasonable cost. The primary drawback of the Eagle theory is that it cannot serve as a general source of protection for property rights against arbitrary or oppressive government action. If adopted as the basis for the regulatory takings doctrine, therefore, the Eagle theory would have to be supplemented with a second source of constitutional protection for property, such as substantive due process. This, as it happens, is precisely what Steven Eagle has urged.


Law | Property Law and Real Estate


Originally published in the William & Mary Brigham-Kanner Property Rights Journal.