1999 Articles

Deterrence and Distribution in the Law of Takings

Heller, Michael A.; Krier, James E.

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.