A couple of years ago, I was working on a series about regulatory takings cases… Then I started my job at Southeast, and my time was taken up with other work. I’m back at it, though, and so I’ll be revisiting a few of the old posts as I work on my some new ones. Happily, this is coinciding with lecturing on these topics in my undergraduate constitutional law class — always a favorite time of my semester! So, from 2014:
Why, precisely, did I have so much trouble with takings cases, particularly regulatory takings all those years ago? Why do I still heave a heavy sigh whenever I am faced with a new one? Well, back in the 1980s, when property movements were really getting their litigative feet under them, Carol Rose of Yale Law School wrote a wonderful essay titled, “Mahon Reconstructed: Why the Takings Issue is Still a Muddle.” (52 S. Cal. L. rev. 561, 1983-1984). Indeed, after I read this essay I ended up reading a lot of Professor Rose’s work. This essay, and one of her books in particular, Property and Persuasion: Essays on the History, Theory, and Rhetoric of Ownership shaped my thinking about takings quite a lot (Westview Press, 1994 — it’s out of print now, but if you can find a used copy, I recommend it!).
Since I am not…
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