The Stanford Law Review has been doing a good job lately of talking takings. Last week, it published a note about judicial takings and the Stop the Beach Renourishment case. Now comes the Law Review’s online edition with a new essay by Professor Richard Epstein, “Physical and Regulatory Takings: One Distinction Too Many,” about the New York City rent control case up before the Supreme Court on a cert petition. (We posted the cert petition and the amicus briefs in support in the Harmon case here.) Professor Epstein writes:
Unfortunately, modern takings law is in vast disarray because the Supreme Court deals incorrectly with divided interests under the Takings Clause of the Fifth Amendment … The Supreme Court’s regnant distinction in this area is between physical and regulatory takings. …
Thus, under current takings law, a physical occupation with trivial economic consequences gets full compensation. In contrast, major regulatory initiatives rarely require a penny in compensation for millions of dollars in economic losses. The distinction has been defended on the ground that the Court’s cases have consistently offered higher protection to physical takings given the historical importance of protection against occupation. It is also, as Justice Thurgood Marshall wrote, that a physical taking “is perhaps the most serious form of invasion of an owner’s property interests. To borrow a metaphor, the government does not simply take a single ‘strand’ from the ‘bundle’ of property rights: it chops through the bundle, taking a slice of every strand.”
This metaphor notwithstanding, the arguments are not sufficient to defend the distinction. Quite simply, the distinction between physical and regulatory takings does not pay its own way, which becomes more evident when we ask two key questions: Why draw this line? How should we draw this line?
64 Stan. L. Rev. Online at 101 (footnotes omitted). His essay then goes on to try and answer these questions, in Professor Epstein’s distinctive voice.
Indeed, we dare you to read the essay and not literally hear his voice talking to you.