Download this Paper Open PDF in Browser

Deterrence and Distribution in the Law of Takings

29 Pages Posted: 16 Jun 1999 Last revised: 17 Nov 2017

Michael Heller

Columbia University - Columbia Law School

James E. Krier

University of Michigan Law School

Date Written: March 1999

Abstract

Supreme Court decisions over the last three-quarters of a century have turned the words of the Takings Clause into a secret code that only a momentary majority of the Court is able to understand. The Justices faithfully moor their opinions to the particular terms of the Fifth Amendment, but only by stretching the text beyond recognition. A better approach is to consider the purposes of the Takings Clause, efficiency and justice, and go anew from there. Such a method reveals that in some cases there are good reasons to require payment by the government when it regulates property, but not to insist upon compensation to each aggrieved property owner. In other cases, the opposite is true -- compensation to individuals makes sense, but payment by the responsible government agency does not. Uncoupling efficiency and justice would invigorate the law of takings.

JEL Classification: K11

Suggested Citation

Heller, Michael and Krier, James E., Deterrence and Distribution in the Law of Takings (March 1999). Harvard Law Review, Vol. 112, No. 5, March 1999. Available at SSRN: https://ssrn.com/abstract=157696

Michael Heller (Contact Author)

Columbia University - Columbia Law School ( email )

435 West 116th Street
New York, NY 10025
United States

James Krier

University of Michigan Law School ( email )

625 South State Street
1039 Legal Research Building
Ann Arbor, MI 48109-1215
United States
734-764-4701 (Phone)
734-764-8309 (Fax)

Paper statistics

Downloads
2
Abstract Views
868