Fischel on Miller v. Schoene

I'm sure that many readers are familiar with William Fischel's scholarship.  His book The Homevoter Hypothesis is one of my favorite works on land use and local government issues, and his book Regulatory Takings:  Law, Economics, and Politics is an amazing resource for people interested in the political, historical, and economic background of the Supreme Court's leading takings cases.  In the mold of some of the chapters in Regulatory Takings, Fischel has authored a new article titled The Law and Economics of Cedar-Apple Rust: State Action and Just Compensation in Miller v. Schoene, available on-line from BePress.  Here's the abstract:

Miller v. Schoene approved the uncompensated destruction of cedar trees that were alternate hosts to a fungus that damaged apples but not cedars. Supreme Court Justice Harlan F. Stone’s opinion noted that deciding for either cedar or apple growers would amount to action by the state. Scholars have claimed that Miller marked the demise of the public/private distinction in constitutional law. This article presents historical evidence to the contrary. A widely-accepted standard—higher commercial value—commonly decided whose interests should prevail in such controversies. The analysis also shows that moral hazard explains why cedar owners were denied just compensation, which orchardists had originally been willing to tax themselves to pay. Cedar owners whose land actually gained in value when their trees were cut down nonetheless availed themselves of damages.

This is a must-read if, like me, you're a takings geek.

Ben Barros

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