Uncoupling the Law of Takings

Authors

Michael A. Heller, University of Michigan Law SchoolFollow
James E. Krier, University of Michigan Law SchoolFollow

Document Type

Article

Publication Date

1-2000

Abstract

The law of takings couples together matters that should be treated independently. The conventional view, shared by courts and commentators alike, has been that any takings case can be resolved in one of two ways: either there is a taking and compensation is due, or there is no taking and no compensation is due. These results are fine as long as one holding or the other serves the two central concerns of the Takings Clause - eficiency and justice. But a problem arises when the two purposes behind the law of takings come into cordhct, as they readily might. It happens that in some takings cases there are good reasons to require payment by the government, but not compensation to the aggneved property owners. In other cases, the opposite is true - compensation to individuals makes sense, but payment by the responsible government agency does not. What is needed, then, is a set of four possible resolutions, instead of the conventional two; the two new resolutions become available when we uncouple efficiency considerations from justice considerations, or, put another way, when we uncouple "taking" on the one hand from "compensation" on the other. The resulting set of four possible resolutions helps smooth out some of the many wrinkles for which the law of takings is renowned.

Recommended Citation

Heller, Michael A., co-author. "Uncoupling the Law of Takings." J. E. Krier, co-author. Law Quad. Notes 43, no. 1 (2000): 97-104. (Excerpted and adapted from an article originally published as "Deterrence and Distribution in the Law of Takings." Harv. L. Rev. 112, no. 5 (1999): 997-1025)