Academic

Treanor on Epstein on Takings

By Lawrence Solum

William Michael Treanor (Fordham University School of Law) has posted Supreme Neglect (107 Michigan Law Review, Forthcoming 2009) on SSRN. Here is the abstract:

n Supreme Neglect, Professor Richard Epstein has produced a clear and elegant synthesis for the general reader of his lifetime of thinking about the Takings Clause and, more broadly, about the role of property in our constitutional system. Appealing to both history and constitutional text, Epstein argues that the Takings Clause bars government regulations that diminish the value of private property (with the exception of a highly constrained category of police power regulations). This essay shows that neither the text of the clause nor original understanding support Epstein's broad doctrine of regulatory takings. Indeed, both text and the early history of the clause indicate that the clause did not apply to regulations at all; it applied only to physical seizures by the government- situations where the government physically take[s] property by, for example, building a road or a school on it.

Highly recommended.

Full post as published by Legal Theory Blog on February 13, 2009 (boomark / email).