Takings, Efficiency, and Distributive Justice: A Reply to Professor Dagan

Abstract

In a recent article, Professor Hanoch Dagan argues that courts should incorporate the principle of distributive justice into their decisions as to whether a particular property owner should receive compensation in response to a government-imposed redistribution of property. To that end, he proposes a concept called "progressive" compensation that he believes will better serve distributive justice than present doctrine while at the same time improving the efficiency of governmental decision-making. This Essay questions key aspects of Professor Dagan's analysis, proposes as an alternative a uniform few-many rule for resolving takings issues. If funded through progressive taxation, such a rule would better address both the efficiency and the distributive justice concerns associated with government redistributions of private property.