James E. Krier

Deterrence and Distribution in the Law of Takings

Supreme Court decisions over the last three-quarters of a century have turned the words of the Takings Clause into a secret code that only a momentary majority of the Court is able to understand. The Justices faithfully moor their opinions to the particular terms of the Fifth Amendment, but only by stretching the text beyond recognition. A better approach is to consider the purposes of the Takings Clause, efficiency and justice, and go anew from there. Such a method reveals that in some cases there are good reasons to require payment by the government when it regulates property, but not to insist upon compensation to each aggrieved property owner. In other cases, the opposite is true -- compensation to individuals makes sense, but payment by the responsible government agency does not. Uncoupling efficiency and justice would invigorate the law of takings.

Risk and the Legal System

“Risk” and the “legal system” are ambiguous terms. Here they are clarified, then considered from the standpoint of the objectives, methods, and problems of legal intervention in a world of inevitable risk.

Facts, Information, and the Newly Discovered Record in Pierson v. Post

Unlike Professors Fernandez, Banner, and Donahue, I am not a legal histo rian; like them, however, I am much interested in the comings and goings of the famous old case about the fox. It figures significantly in my course on property and in my co-authored book on the subject. The background of the case is noted in the book and will be updated in the next edition to take account of Fernandezs discovery of the hitherto lost judgment roll in the case.1 Her find yields many facts, but, in my judgment, virtually no information. Facts are necessary to information, but not sufficient. A fact without purpose is useless; coupled with purpose, it becomes information. The information itself might be trivial, as it is in trivia games. Suppose you are playing a game, a trivia game, where stating the right fact wins you points. Suppose the name of William Blackstones tailor was Jonas Maybird, and this is a fact you happen to know. Suppose you are asked, What was the name of William Blackstones tailor? You answer correctly and win points. Outside the game, the name of Blackstones tailor is just a fact; inside the game, it is information. Change the game to a scholarly one concerned with illuminating Blackstones Commentaries on the Laws of England, and we are back to the name of Blackstones tailor being just a worthless fact. For purposes of understanding Blackstone, I presume that

Courts, Agencies, and Social Risk Assessment*

The recent development of new technologies in the health and medical areas has not occurred without cost. Progressive technologies to treat or prevent disease or discomfort may create new risks, even as they reduce risks attributed to “natural” conditions. Selective aversion to the manmade risks of advanced technologies can be counterproductive. A world with vaccines or pharmaceuticals is not perfectly safe, for example, but might be safer than a world without. The objective should not be to eliminate risk, but to reduce it to the minimum overall level by employing new technologies only when they promise to displace a greater amount of risk than they create.

Making Something out of Nothing: The Law of Takings and Phillips v. Washington Legal Foundation

Phillips v. Washington Legal Foundation held that interest on principal amounts deposited into IOLTA accounts is the property of the various clients who handed over the money but expressed no view as to whether the Texas IOLTA program worked a taking, or, if it did, whether any compensation was due. The debates among the justices about the meaning of private property, argued in terms of contextual and conceptual severance, are unlikely to prove fruitful. We elaborate a better approach in terms of the underlying purposes of just compensation. We conclude that efficiency and justice are best served by uncoupling matters and methods of deterrence from matters and methods of distribution.