Compensation and the Interconnectedness of Property

Merrill, Thomas W.

Professor Joseph Sax's scholarship on the Takings Clause combines the craft of a first-class lawyer with the passion of a visionary. His scholarship reflects a deep understanding of Supreme Court case law, legal history, and the practical dimensions of various kinds of land use disputes. Yet his work on takings is not animated by any desire for mere doctrinal tidiness. It is driven by a distinctive vision -- one in which the earth's resources are becoming increasingly interconnected and in which there is an increasing need for the government to resolve conflicts regarding the use of these resources. Each of his writings on the Takings Clause, be it a law review article, speech, or book review, offers fresh insights in response to unfolding developments in compensation law. This Article proceeds as follows. First, I describe Professor Sax's scholarship on the Takings Clause, organizing that work into four clusters defined both chronologically and by institutional affiliation. Then I examine certain recurring themes in the scholarship and consider how those themes develop (or fail to develop) over time. Finally, I focus more closely on Professor Sax's conviction that a proper understanding of the Takings Clause requires a redefinition of "property" and suggest that this premise may not be necessary to promote some of his underlying objectives.


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Ecology Law Quarterly

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November 11, 2015