Deterrence and Distribution in the Law of Takings

Authors

Michael A. Heller, Columbia Law SchoolFollow
James E. Krier

Document Type

Article

Publication Date

1999

Abstract

Supreme Court decisions over the last three-quarters of a century have turned the words of the Takings Clause into a secret code that only a momentary majority of the Court is able to understand. The Justices faithfully moor their opinions to the particular terms of the Fifth Amendment, but only by stretching the text beyond recognition. A better approach is to consider the purposes of the Takings Clause, efficiency and justice, and go anew from there. Such a method reveals that in some cases there are good reasons to require payment by the government when it regulates property, but not to insist upon compensation to each aggrieved property owner In other cases, the opposite is true – compensation to individuals makes sense, but payment by the responsible government agency does not. Uncoupling efficiency and justice would invigorate the law of takings.

Disciplines

Intellectual Property Law | Law | Property Law and Real Estate | Supreme Court of the United States

Recommended Citation

Michael A. Heller & James E. Krier, Deterrence and Distribution in the Law of Takings, 112 Harv. L. Rev. 997 (1999).
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/478