Making Something out of Nothing: The Law of Takings and Phillips v. Washington Legal Foundation

Heller, Michael A.; Krier, James E.

Phillips v. Washington Legal Foundation held that interest on principal amounts deposited into IOLTA accounts is the property of the various clients who handed over the money but expressed no view as to whether the Texas IOLTA program worked a taking, or, if it did, whether any compensation was due. The debates among the justices about the meaning of private property, argued in terms of contextual and conceptual severance, are unlikely to prove fruitful. We elaborate a better approach in terms of the underlying purposes of just compensation. We conclude that efficiency and justice are best served by uncoupling matters and methods of deterrence from matters and methods of distribution.


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Supreme Court Economic Review

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University of Chicago Press
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October 12, 2015