The takings-puzzle puzzle.

• Author: Krier, James E.
• Position: Defining Takings: Private Property and the Future of Government Regulation

Regulatory takings are widely regarded as a puzzle. Whether from the standpoint of merely trying to describe judicial doctrine, or from the more ambitious standpoint of trying to normalize the doctrine in some way--finding the theory that can "rationalize the cases," or the theory that should--the opening cliche in most of the scholarly commentary is that the law in this area is a bewildering mess. We can go back thirty years, more-or-less, and find statements to that effect in classic articles by Joe Sax and Frank Michelman.(1) We can skip forward to recent work and observe the same.(2) We can also take it on faith (trust me) that most of the scholarly literature in between shares the sentiment.(3)

My aim here is to unpack the regulatory takings problem in a way that suggests why it is intractable. The idea is to reveal some of the different types of ambiguity necessarily entailed in takings cases. Seeing these ambiguities, we readily can understand why the doctrine in this area is so confused and confusing; why there is, in short, a "takings puzzle." To my mind, it is much more difficult to understand why anyone would expect matters to be otherwise. This oddity I call the "takings-puzzle puzzle."

It seems to me that takings cases routinely give rise to at least three different kinds, and different levels, of ambiguity and uncertainty. The first and most superficial kind was suggested in an article by Douglas Kmiec.(4) Professor Kmiec claimed that the Supreme Court, thanks to several of its recent decisions, "largely has solved the takings puzzle."(5) He didn't mean by this that all of the uncertainties about regulatory takings doctrine have suddenly vanished; what he meant, instead, is that the Court has, in his view, settled on general principles. Kmiec acknowledged, however, that the uncertainty of applying those principles remains intact. "The takings puzzle has been solved," he said, but "especific applications always will remain contentious."(6)

I don't believe that the takings puzzle has been solved in the sense that Kmiec meant, but put that aside. The point remains that even very clearly settled principles commonly will give rise to uncertainty, and thus to some degree of unpredictability, about how to apply the principles. For example, standard takings doctrine plainly holds that government regulations resulting in permanent physical occupations are always takings.(7) But when is an occupation "permanent"? Indeed, when does a government regulation even work an occupation or invasion that is cognizable for takings purposes? The answers to these questions are not at all obvious, so the questions themselves present something of a puzzle.(8)

To cite another example of the same problem, it is clear that government regulations are takings if they effectively wipe out the value of regulated land, unless the land uses targeted by the regulations amount to nuisances under the terms of a state's common law.(9) As Kmiec noted, however, "[n]uisance law is imprecise,"(10) so substantial uncertainty arises even in the course of applying settled doctrine.

We need not belabor the obvious. Takings doctrine simply cannot escape this first kind of uncertainty and confusion that I have been discussing, even when takings principles are settled and clear. Consider now a second kind and level of ambiguity and uncertainty, one having to do with arguments about what our general principles of law in this area should be. Here, uncertainties arise that are more fundamental than those found in the first kind of ambiguity that I identified, more fundamental in the sense that one initially needs to settle on the frame within which to ponder the more mundane issues of applying the general to the particular. Carol Rose has discussed this problem in the context of regulatory takings:

In takings doctrine, the tradition of property's civic responsibility is

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