The idea I wish to explore in this Essay is whether the established methods for determining just compensation can shed light on the meaning of other issues that arise in litigation under the Takings Clause. Specifically, is it possible to “reverse engineer” the Takings Clause by reasoning from settled understandings about how to determine just compensation in order to reach certain conclusions about when the Clause applies, what interests in private property are covered by the Clause, and what does it mean to take such property? The proposed exercise is positive or descriptive in nature rather than normative. The hypothesis is that the ability to calculate just compensation, using established valuation techniques, is a necessary condition for finding that the Takings Clause applies. That the compensation constraint is a necessary condition for applying the Clause does not establish that it is a sufficient condition. There may be other factors, not addressed here, that enter into any final determination that government action gives rise to liability under the Clause. The Essay is concerned only with whether the ability to determine the amount of just compensation is a limiting principle on the scope of the constitutional right.
Thomas W. Merrill,
The Compensation Constraint and the Scope of the Takings Clause,
Notre Dame L. Rev.
Available at: https://scholarship.law.nd.edu/ndlr/vol96/iss4/3