Monday, April 14, 2014

A Question on Teaching Takings

Here's a question that came through the inbox.  Any thoughts, property profs??

I'm considering switching to teaching takings first instead of last; I've heard of people who do it and I can see the appeal.  But what I'm wondering is how you deal with what seems like the embedded concept of nuisance as background principle.  Does that have to come first? Do you tell students to just go with it and figure out nuisance later? Any thoughts would be much appreciated.

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For me, it depends on how you conceptualize takings. If one thinks just of eminent domain, takings might be a good place to start the course. It introduces the role of property in exchange and the relationship between governmental power and private property. If, as I do, you conceptualize eminent domain as protecting the right to exclude, then eminent domain introduces exclusion rights as well. On the other hand, I would find it tough sledding to teach regulatory takings through land use regulation early in the course. Because it is a doctrinal quagmire and (as I claim in my book Property Law and Social Morality) without a solid justification, I doubt that it would give students confidence that there is something called property. And the idea that the government can regulate land use to prevent nuisance but not to otherwise greatly diminish value, seems to be an empty idea. Of course, were it left to me, I would replace regulatory takings with a doctrine of equal treatment of owners that avoids the current quagmire.

Posted by: Peter M. Gerhart | Apr 15, 2014 6:39:01 AM

Thanks for this thought. I hadn't thought of such a split.

Posted by: Rebecca Tushnet | Apr 22, 2014 2:47:02 PM

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