Takings, Federalism, Norms (review), 105 Yale Law Journal 1121 (1996)
William Fischel's Regulatory Takings launches a surprisingly energetic shove at property law's most Sisyphean rock. The general question of the "takings issue" is the following: Under our federal and state constitutions, by what criteria should we determine that a governmental action is a "taking" of property that requires compensation to the owner, as opposed to an ordinary regulation to which property owners must submit? To be sure, many takings cases are straightforward: When governments acquire title to private property by eminent domain, compensation is uncontested in principle, if not in amount. But the matter is far hazier for purported "regulatory takings," when governments restrict property use without attempting to acquire title.
Law review articles on the subject have never been in short supply, but lately, the takings issue has attracted the attention of other actors. Recently joining the fray are the United States Congress and a number of state legislatures, which have offered up several different proposals to "solve" this hitherto intractable riddle—proposals that could have considerable effect on regulatory regimes ranging from local zoning to national environmental law.
Date of Authorship for this Version
Rose, Carol M., "Takings, Federalism, Norms" (1996). Faculty Scholarship Series. Paper 1810.