The Strand not Taken

Takings jurisprudence is struggling with a constant paradox. It is conventionally portrayed as chaotic and “muddy,” and yet attempts by the judiciary to create some sense of order in it by delineating this field into distinctive categories that apply to each a different set of rules are often criticized as analytically incoherent or normatively indefensible.

This Article offers an innovative approach to the taxonomic enterprise in takings law, by examining what is probably its starkest and most entrenched division: that between takings and taxings. American courts have been nearly unanimous in refusing to scrutinize the power to tax, viewing this form of government action as falling outside the scope of the Takings Clause. Critics have argued that the presence of government coercion, loss of private value, and potential imbalances in burden sharing mandate that the two instances be conceptually synchronized and subject to similar doctrinal tests.

The main thesis of the Article is that this dichotomy, and other types of legal line-drawing in property, should be assessed not on the basis of a “pointblank” analysis of allegedly-comparable specific instances, but rather on a broader view of the foundational principles of American property law and of the way in which takings taxonomies mesh with the broader social and jurisprudential understanding of what “property” is.

Identifying American property law as conforming to two fundamental principles—formalism of rights and strong market propensity—but at the same time as devoid of a constitutional undertaking to protect privately-held value against potential losses as a self-standing “strand” in the property bundle, the Article explains why prevailing forms of taxation do seem to be disparate from other forms of governmental interventions with private property. Focusing attention on property taxation, the Article shows why taxation is considered a “lesser evil” type of government coercion, how the taxing/taking dichotomy better addresses the public-private interplay in property law, and why taxation is often viewed as actually empowering property rights and the control of assets.

This type of systematic inquiry is very timely. American property law is nowadays located at a crucial crossroad, with its longtime foundational premises and convictions being vigorously reexamined in the face of the domestic and global economic crisis. Although it remains to be seen whether government measures taken in the months and years to come will create a major upheaval in the fundamentals of property law, it should be clear that any such major shifts will have inevitable profound influences on what may be wrongly viewed as “isolated” legal doctrines, including the taking/taxing taxonomy.