Fischel on Miller v. Schoene

BE Press's on-line Review of Law and Economics has published William A. Fischel's The Law and Economics of Cedar-Apple Rust: State Action and Just Compensation in Miller v. Schoene.  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.

I read a version of this article a few months ago, and, like all of Fischel's work, it is outstanding.  If you are interested in regulatory takings, this is a must-read.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]