Just Compensation, Incentives, and Social Meanings: A Rejoinder

Abstract

Can takings and Just Compensation law be progressive? Can it take into account social responsibility and equality? This Essay answers these questions in the affirmative. It defends my progressive theory of takings law against Professor Lunney's claim that the realities of public choice analysis render this theory implausible. This Essay shows that Professor Lunney's refined understanding of the role that normative reasons play in public planning decisions supports the need for a progressive legal counterbalance to ensure unbiased governmental decisions. It further explains that this understanding of public choice reinforces the importance of grafting social responsibility and equality onto takings law, and thus onto our conception of property. Therefore, this Essay concludes that Professor Lunney's challenge does not threaten the progressive theory of takings law; rather, it helps vindicate its viability.