Just Compensation, Incentives, and Social Meanings

In Takings and Distributive Justice, I proposed a progressive interpretation of the Compensation Clause. In his response, published in this issue, Professor Lunney challenges the plausibility and the desirability of my interpretation and proposes an alternative. This Essay compares our approaches. It concludes that Professor Lunney’s careful examination of the public choice analysis of takings does refine my theory. Contrary to Professor Lunney’s claims, however, these refinements reinforce – rather than undermine – the viability of a progressive takings doctrine. Parts I and II set the stage by summarizing the principal claims made, respectively, in my original Article and in Professor Lunney’s response. Parts III and IV constitute the core of this Essay, vindicating both the plausibility and the normative desirability of my proposed doctrine. Part V provides two examples. A brief conclusion follows.