PointofLaw.com
 Subscribe Subscribe   Find us on Twitter Follow POL on Twitter  
   
 
   

 

 

Richard Epstein: The Supreme Court's tortured takings jurisprudence

| No Comments


The October 3, 2012 argument before the Supreme Court in Arkansas Game & Fish Commission v. United States revealed a grumpy Supreme Court that was struggling with a long-standing tangle in its own takings jurisprudence: just where should it draw the elusive line between a tort and taking. To most people that question has a nonsensical quality, because many torts involve the taking of the property of another person, even if others do not.

To orient the discussion, it is best to see how this distinction plays out in private disputes. Where property has been taken by the defendant, the plaintiff can sue on a theory of restitution for compensation equal to the benefits that the wrongdoer has received, if that amount exceeds the dollar value of the plaintiff's harm. But if those benefits are not easily calculable, the plaintiff can always recover full damages for the property damage sustained.

The question is what happens when the government takes actions that could be described as torts, takings, or in some cases both. The easy answer under the Takings Clause should be that the government can never be required to compensate the aggrieved property owner for the benefit it received. After all, the whole purpose of the Takings Clause is to prevent any landowner from holding out for the benefits that otherwise accrue to the state. The proper approach thus always awards the aggrieved property owner a sum equal to its actual losses. At that point, all the incentives are in the right place. The requirement of compensation has two singular virtues. First, it means that no one person has to bear all the costs of government-sponsored projects intended to benefit the public at large. Second, by making the state pay the freight, it incentivizes the government not to go ahead with those projects whose social costs exceed their social benefits.

Continue reading Richard Epstein's new column.

Leave a comment

Once submitted, the comment will first be reviewed by our editors and is not guaranteed to be published. Point of Law editors reserve the right to edit, delete, move, or mark as spam any and all comments. They also have the right to block access to any one or group from commenting or from the entire blog. A comment which does not add to the conversation, runs of on an inappropriate tangent, or kills the conversation may be edited, moved, or deleted.

The views and opinions of those providing comments are those of the author of the comment alone, and even if allowed onto the site do not reflect the opinions of Point of Law bloggers or the Manhattan Institute for Policy Research or any employee thereof. Comments submitted to Point of Law are the sole responsibility of their authors, and the author will take full responsibility for the comment, including any asserted liability for defamation or any other cause of action, and neither the Manhattan Institute nor its insurance carriers will assume responsibility for the comment merely because the Institute has provided the forum for its posting.

Related Entries:

 

 


Isaac Gorodetski
Project Manager,
Center for Legal Policy at the
Manhattan Institute
igorodetski@manhattan-institute.org

Katherine Lazarski
Press Officer,
Manhattan Institute
klazarski@manhattan-institute.org

 

Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.