The Problem of Equality in Takings
55 Pages Posted: 9 Nov 2007 Last revised: 10 Mar 2008
The Supreme Court is finally beginning to bring clarity to the law of regulatory takings and in the process is bringing to the fore a previously submerged theme in the jurisprudence: regulatory takings as a question of distributional justice and horizontal equity. This Article argues that this equality dimension is fundamentally problematic. On a theoretical level, privileging norms of equality engrafts political process rationales for heightened scrutiny onto groups defined solely by the differential burden of a regulation, an exercise in circularity. Equally troubling is the inverted political economy of regulatory takings claims that is likely to result: the greatest judicial protection is provided to those most able to navigate the political system. And from a doctrinal perspective, an overly robust equality inquiry housed in the Takings Clause is inherently indeterminate, warping not only the fabric of takings but also of equal protection jurisprudence. Accordingly, this Article argues that concerns about the uneven distribution of regulatory burdens should sound not under the Takings Clause but rather under the Equal Protection Clause, with its deferential standards for the review of ordinary economic and social regulation. Excising the equality dimension of regulatory takings would properly leave the Takings Clause as a guard against those rare regulatory actions that are functionally equivalent to the direct exercise of eminent domain. The result would be a simpler, clearer, and ultimately more egalitarian law of takings.
Keywords: takings, regulatory takings, equality, equal protection
JEL Classification: K11, K00
Suggested Citation: Suggested Citation