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Series

SSRN

Columbia Law School

1999

Constitutional Law

Articles 1 - 3 of 3

Full-Text Articles in Law

Deterrence And Distribution In The Law Of Takings, Michael Heller, James E. Krier Jan 1999

Deterrence And Distribution In The Law Of Takings, Michael Heller, James E. Krier

Faculty Scholarship

Supreme Court decisions over the last three-quarters of a century have turned the words of the Takings Clause into a secret code that only a momentary majority of the Court is able to understand. The Justices faithfully moor their opinions to the particular terms of the Fifth Amendment, but only by stretching the text beyond recognition. A better approach is to consider the purposes of the Takings Clause, efficiency and justice, and go anew from there. Such a method reveals that in some cases there are good reasons to require payment by the government when it regulates property, but not ...


The Boundaries Of Private Property, Michael Heller Jan 1999

The Boundaries Of Private Property, Michael Heller

Faculty Scholarship

The American law of property encourages people to create wealth by breaking up and recombining resources in novel ways. But fragmenting resources proves easier than putting them back together again. Property law responds by limiting the one-way ratchet of fragmentation. Hidden within the law is a boundary principle that keeps resources well-scaled for productive use. Recently, however, the Supreme Court has been labeling more and more fragments as private property, an approach that paradoxically undermines the usefulness of private property as an economic institution and Constitutional category. Identifying the boundary principle threads together disparate property law doctrines, clarifies strange asymmetries ...


Making Something Out Of Nothing: The Law Of Takings And Phillips V. Washington Legal Foundation, Michael Heller, James E. Krier Jan 1999

Making Something Out Of Nothing: The Law Of Takings And Phillips V. Washington Legal Foundation, Michael Heller, James E. Krier

Faculty Scholarship

Phillips v. Washington Legal Foundation, 118 S Ct 1925 (1998), held that interest generated by the Texas Interest on Lawyers Trust Account (IOLTA) program is the "private property" of the clients who handed over the principal; the Court did not decide whether the IOLTA program worked a "taking," or, if it did, what "just compensation" was due. The debates among the justices about the meaning of private property, argued in terms of contextual and conceptual severance, are unlikely to prove fruitful. We elaborate a better approach that looks to the underlying purposes of just compensation: efficiency and justice are best ...