Wednesday, April 4, 2012
Fennell Helps us Picture Takings
One of my (few) disappointments this semester was that I was out of town the day Lee Fennell (Chicago) came to ND Law to present a really interesting paper broadening legal theory's view of resource-allocation-relevant costs beyond the conventional focus on "transaction costs." I did have the consolation of hearing many terrific papers at the ALPS Conference at Georgetown on the day she presented here in South Bend. Hopefully, that paper, Resource Access Costs, will be finding its way to SSRN and this blog soon.
In the meantime, she has posted Picturing Takings, 88 Notre Dame L. Rev ___ (forthcoming 2012), an article that makes visual sense of a doctrine that has so successfully defied textual explanatory efforts. Here's the abstract:
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. [Note: a PowerPoint version of the diagrams is available on the author's faculty webpage or can be obtained by emailing the author].
I am very hopeful that this article will be helpful not only to my understanding of takings but also to my (first-time) teaching of Land Use Planning next spring. Here is a link to the PowerPoint presentation referred to at the end of the abstract.