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

Davidson, Nestor M., The Problem of Equality in Takings. Northwestern University Law Review, Vol. 102, p. 1, 2008; U of Colorado Law Legal Studies Research Paper No. 07-29. Available at SSRN:

Nestor M. Davidson (Contact Author)

Fordham University School of Law ( email )

140 West 62nd Street
New York, NY 10023
United States

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