Picturing takings.

Author:Fennell, Lee Anne
Position:Takings doctrine - Introduction through II. Wrongs and Remedies, p. 57-88

Takings doctrine, we are constantly reminded, is unclear to the point of incoherence. The task of finding our way through it has become more difficult, and yet more interesting, with the Supreme Court's recent, inconclusive foray into the arena of judicial takings in Stop the Beach Renourishment. Following guideposts in Kelo, Lingle, and earlier cases, this essay uses a series of simple diagrams to examine how elements of takings jurisprudence fit together with each other and with other limits on governmental action. Visualizing takings in this manner yields surprising lessons for judicial takings and for takings law more generally.


The Supreme Court's recent decision in Stop the Beach Renourishment (1) intrigued and unsettled legal commentators by raising, but not resolving, the question of judicial takings. (2) Like Kelo (3) before it, the case has prompted a resurgence of scholarly interest in takings. And, like the less famous but equally important Lingle v. Chevron, (4) it implicates core questions about the scope and bounds of the Takings Clause. Property scholars and students now face fresh challenges in understanding how different elements of takings jurisprudence fit together with each other and with other limitations on governmental power.

In puzzling through this set of questions, I found myself turning again and again to iterative graphical representations. These pictures soon became more than just a way to pin down what I thought I knew about takings. Rather, they turned into vehicles for asking new questions and for seeing aspects of the takings field--including, but not limited to, the question of judicial takings--from new angles. The result was this essay, written around a series of simple diagrams. The analysis proceeds in three steps. Part I provides a visual primer on (nonjudicial) takings law that lays the groundwork for what follows. Part II introduces some puzzles about wrongs and remedies, again sticking with legislative and administrative takings. Part III examines the implications of this analysis for judicial takings.

The diagrammatic approach pursued here illuminates three underappreciated features of takings law that can help fit judicial takings into the existing doctrinal framework. First, it draws attention to the two distinct doctrinal boundaries implicated in takings law and the ways that institutional competencies influence the strategies for policing them. Second, it emphasizes a category of confiscatory acts that are not deemed to be takings. Third, it highlights the fact that traditional takings law slots governmental acts into three "zones"--dubbed here the "free zone," the "pay zone," and the "no-go zone"--a taxonomy that suggests a fourth possibility, (5) and one that turns out to have interesting implications for judicial takings. I show (without endorsing) how these features could plausibly combine to render judicial takings a nearly null set, occupying even less conceptual space than the set of legislative or administrative takings that flunk the Supreme Court's public use test.

This is an essay about the architecture of takings doctrines and the limiting principles built into their structure, not an effort to explicate or advocate a new theory of takings, judicial or otherwise. My goal throughout is analytic rather than normative. I start with takings doctrines as they currently exist, try to find the best conceptual and diagrammatic characterization of them, and then see where judicial takings might fit into the story.


    Setting aside the enticing topic of judicial takings for the moment, we can begin with takings doctrine as it has been applied to actions emanating from the legislative and executive branches, which I will refer to in this essay collectively as "nonjudicial" takings.

    1. Three Zones

      Our story starts simply enough. There are some things that the government (6) can do, and other things it is prohibited from doing. For now, we need not worry about why it cannot do the things it cannot do, or how we can tell whether a given act lies inside or outside the realm of legitimate government action. We need only assume that there are some fixed limits on government action. That lets us define an area within which the government may act if it so chooses, as shown in Slide 1.


      We can then identify the surrounding space as the realm of impermissible governmental acts. Now we can start to think about "takings." The Takings Clause in the U.S. Constitution reads: "nor shall private property be taken for public use, without just compensation." (7) The category of "takings" includes exercises of eminent domain (where the government admits it is engaging in a taking) as well as certain other physical and regulatory incursions that are found to rise to the level of a taking. (8) The doctrines are complex, but the universe of "takings" can nonetheless be represented by Slide 2's simple square.


      Next, we must consider how this square of governmental takings intersects with the respective realms of legitimate and impermissible government actions depicted in Slide 1. That relationship is illustrated in Slide 3.


      As this intersection suggests, a governmental "taking" may or may not be a legitimate governmental act. In order for it to be legitimate, two criteria must be met. First, it must be for "public use." (9) Second, it must ultimately be accompanied by "just compensation." (10) If both these criteria are met, the taking falls within the realm of legitimate government action. This is represented by the overlapping area shown in Slide 3. Conversely, takings that fail to meet either the "public use" or "just compensation" criteria would fall into the realm of impermissible governmental acts represented by the portion of the takings square that does not overlap with the oval of legitimacy. (11)

      At this point, we can identify three functional zones in our picture. First, there is a "free zone" (the part of the oval that does not overlap with the square). In this area, which includes ordinary exercises of the police power, the government can go about its business without paying just compensation. (12) Second, there is a "pay zone" (the overlap between square and oval), where just compensation is required. Finally, there is a "no-go zone" (everything else, including the non-overlapping portion of the takings square). (13) Slide 4 shows these zones, with the entire no-go zone, including the impermissible portion of the takings square, rendered as black space. (14)


      Note that, as represented here, the "pay zone" falls entirely within the area of legitimate governmental action. (15) To be sure, impermissible takings can occur (consider the non-overlapping part of the takings square) but these acts do not qualify for the liability rule regime established by the Takings Clause; the appropriate judicial response is injunctive relief, not just compensation. (16)

    2. In and Out of the Pay Zone

      How does a governmental actor end up in the "pay zone" shown in Slide 4? There are two ways in: purposeful exercises of eminent domain, and regulatory actions that are deemed by the court to be the functional equivalent of eminent domain. I will discuss each of these paths into the pay zone before turning to some interesting territory that lies outside that zone.

      1. Eminent Domain

        The first way into the pay zone is to consciously undertake a condemnation. There is no question that exercises of eminent domain are takings; the only question is whether the taking is for public use. If so, it falls within the oval of legitimate governmental conduct. Here, public use operates like a door that lets governmental entities enter into the pay zone on purpose.


        In other words, the Takings Clause establishes a liability rule regime in which the government unilaterally accomplishes transfers from private parties to itself upon the payment of just compensation--but only if the taking is for public use. The gray squiggles surrounding the door in Slide 5 represent this limiting principle; the government must enter through the "public use" door in order to qualify for the liability rule regime. The Supreme Court has held that this portal allows in all takings that are rationally related to a public purpose. (17) This standard gives a great deal of deference to governmental determinations that a particular taking constitutes a public use. Nonetheless, the Court has warned that purely pretextual takings--ones that accomplish a naked transfer from private party A to private party B, accompanied only by a thin and...

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