Two very interesting law review articles (essays) by well-known property experts are now available in the Notre Dame Law Review:
- Thomas Merrill, The Compensation Constraint and the Scope of the Takings Clause, 96 Notre Dame L. Rev. 1421 (2021). Professor Merrill asks "whether the established methods for determining just compensation can shed light on the meaning of other issues that arise in litigation under the Takings Clause." This idea is worth exploring in much greater detail, and amplifies a thought we've long had: instead of trying to forge new ground when trying to figure out whether a government action results in a taking, might it not be simpler and more consistent to look at an established body of law that truly informs the subject, valuation and just compensation? For example, see our thoughts on Murr v. Wisconsin, in which we suggested that instead of a new federal test for what qualifies as "property" in regulatory takings, that the Court simply could have looked at Wisconsin's "larger parcel" law for a well-worn answer.
- Richard Epstein, Valuation Blunders in the Law of Eminent Domain, 96 Notre Dame L. Rev. 1441 (2021), in which Professor Epstein scores some good points (naturally): "To rely on the fair market value for a property that is not for sale necessarily eliminates the owner’s surplus derived from his subjective enjoyment of the property. The resulting undercompensation thus leads to a distorted choice between public and private uses. Awarding compensation for subjective value, however, presents distinct valuation problems of its own. Hence, the gap between use and exchange value creates a constant crimp on any valuation system. The second glitch in valuation arises from an emphasis on the value of the 'property . . . taken.' Although that formulation looks expansive, it is not. If literally followed, it removes compensation for incidental or consequential damages from government takings, including, for example, site-specific goodwill, and litigation and appraisal fees, which now have become 'legislative grace,' not constitutional obligation."
It is somewhat rare that legal scholars focus on the just compensation and valuation parts of property law and takings. Especially scholars of this stature. We think they should do it more often.
We suggest you read both of these articles; they are short, and to the point.
