Bruce A. Ackerman - Private Property and The Constitution (1977)

Private Property and the Constitution
Private Property and the Constitution
Bruce A. Ackerman
New Haven and London, Yale University Press, 1977

Published with assistance from the foundation
established in memory of Calvin Chapin
of the Class of 1788, Yale College.
Copyright © 1977 by Susan Rose-Ackerman, Trustee.

All rights reserved. This book may not be
reproduced, in whole or in part, in any form
(except by reviewers for the public press),
without wrritten permission from the publishers.
Designed by John O. C. McCrillis

and set in Baskerville type.
Printed in the United States of America by
The Vail-Ballou Press, Inc., Binghamton, New York
Published in Great Britain, Europe, Africa, and Asia (except Japan) by

Yale University Press, Ltd., London. Distributed in Latin America by
Kaiman & Polon, Inc., New York City; in Australia and New Zealand by
Book & Film Services, Artarmon, N.S.W., Australia; and in Japan by
Harper & Row, Publishers, Tokyo Office.
Library of Congress Cataloging in Publication Data
Ackerman, Bruce A
Private property and the Constitution.
Includes index.
1 . Eminent domain— United States. 2 . Property
— United States. 3 . United States— Constitutional
law. I. Title.
KF5 5 9 9 A93 343'-73'°25 76-47667
ISBN 0-300-02065-1
For
Alex Bickel,
who taught me
to disagree
Contents
Acknowledgmen ts ix
1. Tw o Directions for Legal Thought 1
The Problem of Private Property
in an Activist State 1
The Limits of Legal Convention 5
Four Definitions 10
Some Ideal Types *5
The Problem Revisited 21
2. Scientific Adjudication 23
An Overview of the Scientific Argument 23
Scientific Property T alk 26
The General Structure of the Takings Problem 29
Specification of Judicial Role 31
Toward a Scientific Language? 39
3. Utilitarian Adjudication 41
Choosing A Comprehensive View 4i
Of Judicial Role and Comprehensive View 43
The Restrained Interpretation of the Clause 44
The Activist Interpretation of the Clause 49
The Further Reaches of the Activist
Interpretation 54
The Reformist Interpretation of the Clause 57
Pragmatic Interpretations of the Clause 60
A Utilitarian View of Existing Doctrine 64
4. Kantian Adjudication 71
Judicial Restraint 71
The Kantian Tendency toward Activism 77
Reformism 80
Pragmatism 83
Conclusion 84
Vll
V lll CONTENTS
5. Ordinary Adjudication 88
Introduction 88
The Modern American Mind: Its Basic
Legal Structure 90
The Affirmative Mission of Ordinary Observing 93
Ordinary Property T alk 97
T he General Structure of the Takings Problem 100
Specification of Judicial Role 103
First Principles of Role Theory 103
The Structure of Ordinary Role Theory 106
M ixing Policymaking and Observing Modes
ôf Adjudication 110
6. Layman’s Things 113
T he General Incoherence of Takings Doctrine 113
Layman’s Things 116
Social Property and Legal Property 116
Testing the Hypothesis 118
Layman’s T hing Has Been Taken 123
Transfer of Rightful Possession 123
The Destruction of a T hing 129
Rendering a T hing Useless 136
Layman’s Thing Has Been Taken by the State 145
Layman’s Thing Has Been Taken by the State
without Ordinary Justification 150
Legal Property and Social Property 156
7. On the Nature and Object of Legal Language 168
On Excommunication 168
Philosophical Foundations 175
The Future 185
Notes 190
Table of Cases 291
Index 295
t
Acknowledgments
I am deeply indebted to my research assistant, John Borgo,

for an ongoing flow of criticism, as well as to my secretary,
Diane McDougal, for typing a steady stream of second
thoughts. Their work, as well as mine, was supported in part
by the Law and Social Science Division of The National
Science Foundation. The Foundation, howrever, should not be
held responsible for the views expressed in this essay.
I am also very grateful to my many friends at Yale and
elsewhere who helped me with this book. But my debts here
are so numerous and diverse as to defy a comprehensive and
exact accounting.
IX
1 Two Directions for Legal Thought
T he P r o b lem of P r iv a t e P r o p er t y in a n
A c t iv ist S t a t e
Our legal problem arises at the point where capitalist econ;

omy and activist state collide. No longer a night-watchman,
tTTe state surveys the outcome of market processes and finds
them wanting. Armed with a prodigious array of legal tools,
it sets about improving upon the invisible hand— taxing here,
subsidizing there, regulating everywhere. The result of all
this motion may well be something that clearly redounds to
the public good— a cleaner environment, a safer workplace,
a decent home. Nonetheless, these welfare gains can_rarely be
purchased without social cost— though many may gain, some
will lose as a result of the new governmental initiative. And
it is the fate of those called upon to sacrifice for the public
good that will concern us in this essay: When may they justly
demand that the state compensate them for the financial sacri
fices they are called upon to make?
Consider, for example, the position of Howard B. Sibson.1
Along with some associates, Sibson owned a four-acre tract of
marshland which he was preparing to develop for modern
use at the time his plans were upset by New Hampshire’s
water resource board. So far as the state was concerned, any
land-fill activity was “ bad for the marsh” and “ bad for man
kind” ; 2 hence a flat ban on development was imposed on
Sibson’s property. In raising Sibson’s case, we are not in
terested in assessing the merits of the board’s development
ban. Instead, we shall be considering whether Sibson should
be required to bear unaided the financial sacrifice involved
in mankind’s gain.
It is possible, of course, to assume a political position so
lofty that Sibson’s problem seems capable of straightforward
2 TWO DIRECTIONS FOR LEGAL THOUGHT
solution. On the one hand, one may calumniate the activist

state in all its guises and insist upon full compensation for all
those_jxmperXy_ owners who find themselves hapless victims
of the state’s activist pretensions.3 On the other hand, one
may view the political drama as a very different kind of
morality play, with the state invariably cast as the only knight
within earshot capable of saving an already ill-used damsel
from yet another dastardly assault. On this view, anyone who
takes Sibson’s problem seriously thereby signals his own in
sensitivity— for it is only the morally obtuse who can seriously
ask whether a rapist should be compensated for the frustra
tion of his expectations.4
T he question of just compensation, then, becomes some
thing more than a debater’s point only on a rather compli
cated approach to the modern state. One cannot be so taken
with the market that any effort at state intervention seems
morally bankrupt. One cannot be so caught up with the state
that the fate of those who lose by its intervention is invariably
judged of no moral significance. Instead one must move be
yond a simple, all-consuming faith in state or market to a
more skeptical middle position, which concedes a place to
both, giving absolute status to neither. Just because state in
tervention sometimes improves upon the invisible hand does
not mean that activism is without its own moral difficulties.
Just because an individual is not always entitled to pursue
his own best interests does "not inean that he is never entitled
. to complain when" state action "destroys his pre-existing ex>
pectations. Yet to say this is not to say much. It is one thing
to insist, Polonius-like, upon the need to establish ultimate
limits upon the demands placed on the individual by the
activist state; quite another to explain the intellectual meth
ods by which these constraints may be derived. More con
cretely, out of the countless interventions attempted by the
activist state, how are we to isolate those which require com
pensation? More concretely still, should Sibson be required
“To sacrifice for mankind’s gain?
These questions not only provide a fruitful source for
TWO DIRECTIONS FOR LEGAL THOUGHT 3
philosophical speculation and political pronouncement, but
also serve as a focus for judicial perplexity. When all else
fails, those interests that have suffered at the hands of the
activist state may turn to the courts for relief, invoking noth
ing less than the Constitution on their behalf. The Fifth
Amendment warns, “ nor shall private property be taken for
public use, without just compensation,” thereby inviting the
courts to make as much legal sense as they can of a central
problem raised by the modern state.5 Over the past generation,
however, the basic questions raised by the compensation clause
have not occupied the forefront of legal attention. While
there has been an immense quantity of litigation and”decision,
our constitutional preoccupations have been elsewhere as the
Warren Court struggled to give a new meaning to constitu
tional concepts of equality and procedural fairness. Nonethe-
less, recent events assure that the compensation clause will
return to center stage, requiring lawyers and citizens to
address the issues that lie beneath the surface of even the
most prosaic dispute in which the clause is invoked. Sibson’s
case is no sport— the past five years have witnessed a remark
able flood of conservationist legislation that cuts deeply into
traditional notions of property rights. These statutes, for the
most part, have refused to compensate property owners for the
sacrifices imposed upon them, sending them to the courts in
droves in a last effort to obtain relief.
The result has been a set of confused judicial responses,
reflecting the larger intellectual difficulty involved in setting
limits on the activist state. While Sibson, for example, was
denied all relief,6 it is easy to find similar cases coming to the
opposite result, where analogous regulations were invalidated
so long as compensation was not forthcoming.7 More signifi
cant than one or another judicial decision, however, is the
pervasive judicial recognition that compensation law— after
a long period of neglect— is in need of a fundamental recon
sideration. As is often true of the early stages of constitutional
reappraisal, the Supreme Court has thus far been content to
stand serenely aloof from the struggle, permitting the lower
courts to glimpse its future views by consulting Delphic high

court pronouncements handed down when Warren Harding
and Calvin Coolidge were in the White House.8 As the con
stitutional challenge reaches floodtide proportions, however, it
is only a matter of time before the Court will be drawn into
assessing the constitutional implications of the change in
public values wrought by the environmental revolution. And
as this constitutional moment of truth nears, I hope to con
vince you that there is more at stake in its resolution than
even the future shape of environmental law in this country.
Not for the first time in our constitutional law, it will be
impossible to resolve the legal issues without confronting, and
resolving as best we can, our philosophical perplexities.
My basic thesis about the compensation clause requires the
construction of two ideal types, each of which I take to em
body a basic tendency in modern legal analysis. T o put the
point extravagantly in a single line, I shall argue that, in this
corner of the law at least, almost everything^depends on
wlieitIier one looks at the Constitution with the eyes of a
Scientific Policymaker or those o fa n Ordinary Observer. While
the varieties of Scientific Policymaking are numerous, I shall
suggest that current compensation doctrine makes very little
sense when viewed from any plausible .Policymaking perspec
tive. ,It follows that Scientific Policymakers will think current
law is in need of very substantial revision— though they will
differ among themselves in important ways when it comes to
drawing up more precise blueprints for the legal revolution.
In contrast the Ordinary Observer has very little difficulty
seeing sense in the distinctive contours of established corn-
pensation doctrine. So far as he is concerned, only modest
and interstitial changes are required that do not call into
question the validity of the basic doctrinal structure. My
thesis, then, is this: I n order to decide whether compensation
law is basically sound or ripe for sweeping change it is
necessary first to choose between two fundamentally different
ways nf jLhjnking about Taw, each of which has roots in our
present legal culture.
But this choice between the Scientific Policymaker and the
Ordinary Observer, it will develop, turns on questions that
are generally thought to be philosophical rather than legal.
T o put the point broadly, there can be no question here of
treating philosophy as an arcane cultural product which, if
applied judiciously, will provide the professional lawyer with
a shiny veneer of inteNectual respectability. Nor is it even
proper to think of one solution to the compensation problem
as legally sound while another is recognized as philosophically
sound. Instead, it is only after replying rertain philosophical
issues that one can make sense of the constitutional question,
let alone pretend to expound a correct constitutional answer.
Philosophy decides cases; and hard philosophy at that.
Now this, I confess, represents my general view of the
proper relationship between philosophy and constitutional
law. It is, moreover, a view that accords a role to theory far
greater than that grantecTgenerally by the profession. Never
theless, I wilUToT now attempt to defend my thesis in the
abstract, thinking it wiser to explore it first by demonstrating
in terms of a concrete constitutional issue that analysts must
become philosophers if they wish to remain lawyers.
T he L im it s of L e g a l C o n v en t io n
It is plain that my thesis about the compensation clause

will require a good deal of hard conceptual work before it
can be understood, let alone evaluated. None of my key terms
— neither Scientific Policymaker nor Ordinary Observer— are
currently familiar in legal discourse. As a consequence, if I
am to persuade you they provide the key to the mystery of the
compensation clause, their meaning and implications must be
elaborated quite carefully. The prospect of a long and difficult
conceptual journey, however, should be enough to raise
doubts. Why blaze new trails when more familiar pathways of
legal analysis beckon?
My answer is simple: however smooth and wide the con
ventional highways, they lead to one or another dead-end—
with the principles of compensation law no less mysterious at
journey’s end than they were when the easy road was first
taken. T o see this, it is only necessary to launch a brief scout
ing expedition down each of the three lines of conventional
inquiry that sometimes, but not always, permit lawyers to
arrive at an unproblematic legal conclusion to their constitu-
tional quest. Consider, then, how much of a sense of legal
direction we can obtain, first, from the language of the clause
itself; second, from the relevant history; and third, from the
long series of cases in which the courts, both Supreme and
inferior, have attempted to give the clause a determinate
meaning.
Doubtless there are occasions even in constitutional law
where the canonical words state a clear rule whose mean
ing leaves little room for fair dispute. Like many other
fundamental provisions, however, the compensation clause is
couched in language of such abstraction as to strike terror
in the hearts of the literalists who imagine that the consti
tutional text will somehow reveal its secrets without the
further intervention of human minds: “ nor shall private
property be taken for public use, without just compensation.”
At best, these words set out a number of basic questions that
must be answered: when does an interest qualify as private
property? under what conditions should the state be said to
have “ taken” the interest? when does justice demand compen
sation and how is the adequacy of payment to be assessed? It
should be plain that there are many different ways of answer
ing these questions— staring at the text will not assist one in
choosing among them.9
This, of course, is no new discovery. Indeed, it is precisely
because they have learned to distrust appeals to the “ plain
meaning” of highly abstract concepts that constitutional law
yers have developed other conventional techniques to resolve
questions that arise when reading the constitutional text.
Most important is the idea that one’s interpretative difficulties
may dissolve if the abstract text is read in the light of the
concrete history in which the words were conceived and writ
ten. This appeal to history can occur at two quite different
levels. First, one may search the record to find out what one
or another Framer said on the very issues that perplex us to
day, and then argue that this grab-bag of utterance should be
accepted as binding in contemporary constitutional interpre
tation. While I myself have very little sympathy with this
approach, it is not necessary to go deeply into the question
here. For the fact of the matter is that the legislative history
of the compensation clause is quite unilluminating, with
hardly a recorded word bespeaking sustained reflection.10
Nor will many, I trust, be attracted to the notion that what
ever the practitioners of the common law called a “ taking of
property” at the time of the passage of the Fifth Amend
ment 11 should be treated as within the scope of the compen
sation clause while newfangled notions should be excluded.12
In brief, there is no indication that any individual Framer (let
alone the whole bunch) had worked out a particular theory
of compensation law that would suggest a determinate way of
separating out those contexts in which compensation was re
quired from those in which losers should be left to tend their
wounds without communal assistance.13
But it is possible to appeal to history in a far more discern
ing spirit. Instead of searching for the final solution to our
present dilemmas, one may look to history as the source of
abstract principles that may provide a promising beginning
for further analysis. When approached at this level the his
torical record speaks loud and clear. There can be little doubt
that the Framers thought the protection of property rights a
very important thing indeed, and that a reading of the Con
stitution which would render the compensation clause a dead
letter would be contrary to their intentions.14 It is, however,
equally plain that the Framers were neither blind worshipers
of the market nor principled opponents of active government
in all its forms. Indeed, their new constitutional structure
established a continental government which immediately be
came far more powerful than any that had come before. At
this level, then, we are worthy children of the Founding
Fathers. Our fundamental problem is the same as theirs: to
reconcile the competing demands of state and market in a

way that gives absolute priority to neither. Yet when we press
beyond a perception of a common problem and demand that
our Fathers provide a definite solution, they fall quite re
markably silent—requiring us to resolve the puzzle of the
compensation clause in our own terms, for want of any that
bear the express seal of parental approval.
This leaves the lawyer with one final hope before he must
resign himself to the need for sustained reflection. It remains
possible that, despite the failure of the Framers to resolve the
hard questions raised by the compensation clause, generations
of judges between then and now have built a doctrinal struc
ture that will serve the purpose admirably. As has already
been suggested, however, the present legal scene is of quite
a different kind. Not that there aren’t some rules announced
in one case or another. The problem is that even the most
devoted rule-fetishist would like to have a glimmer as to the
reasons we have the rules we have. And it is this which is
quite absent from the prevailing understanding. Moreover,
in constitutional law at least, the present generation is weak
on rule-fetishism. Indeed, in many conversations on the sub
ject, I have not encountered a single lawyer, judge, or scholar
who views existing case-law as anything but a chaos of con-
fused argument which ought to be set right if one only knew
how. It is difficult to imagine a setting more inhospitable to
those who would invoke “ settled precedent” to forestall sus
tained consideration of doctrinal underpinnings.
We have, then, come to the moment of truth much rhapso
dized by Legal Realists of an earlier generation: the conven
tional techniques have failed to lead the conscientious judge
beyond his starting point. Indeed, thanks largely to the R eal
ist movement, nobody is now taken in by the claim that the
Constitution’s “ plain meaning,” together with history and
precedent, will inevitably dictate answers to the basic ques
tions of compensation law. T he real question is the direction
we should take once this point has been made. For the old-
fashioned Realist, the answer was a straightforward one. Hav
ing established that the standard techniques were unequal to
the task at hand, he would suggest that the conscientious
judge had no choice but to resolve his legal problem on the
basis of intuition— in which personal, professional, and politi
cal factors were inextricably intertwined. I shall argue, how
ever, that this Realist view leaves far too much room for
intuition because it has altogether too narrow a notion of
legal culture. A well-trained lawyer, in America at least, need
not concede defeat upon reaching the analytic limits of the
pitifully small number of techniques the simple Realist allows
within the conventional canon. Without in the least offending
the limits of professional legal discourse, the judge may take
recourse to two very different methods, each of which will cast
a powerful light upon his exegetical problem. The only trou
ble is that these two forms of legal thought— forms that I shall
associate with the Scientific Policymaker, on the one hand,
and the Ordinary Observer, on the other—suggest very dif
ferent ways of resolving our legal perplexities. Moreover, the
different legal solutions advanced by the Scientific Policy
maker and Ordinary Observer are merely symptoms of more
fundamental differences in approach to compensation law.
Not only will our two ideal types differ as to their legal
answers to the compensation question; they will formulate
the question itself in very different ways. Indeed, the choice
between analytic styles runs even deeper than rival formula
tions of the substantive problem before the court. It alters the
judge’s understanding of the forms of thought appropriate to
his own role. Thus, a restrained judge in one tradition will
think very differently from, and may look with disdain upon,
a restrained judge in the other; similarly, different sorts of
judicial innovators will look upon one another with some
thing nearing incomprehension. And the most remarkable
thing of all is that lawyers (and especially sophisticated law
yers) are so adept in both styles of thought that they move
effortlessly between them as suits their interest, seldom find
ing it necessary as advocates to reflect upon deeper analytic
inconsistencies— a thoughtlessness that is carried forward to
the bench when the hand of fate transforms a lawyer into a

judge.
It follows that our present predicament is quite different
from the one so casually attributed to the judge in the name
of Realism. Instead of inhabiting an exhausted legal culture
in which personal intuition reigns supreme, the sophisticated
judge confronts an embarrassment of analytic riches. If he is
to make sense out of the compensation question, not to speak
of the compensation answer, it will be necessary to confront
self-consciously a deeply rooted conflict in our present legal
culture and make a choice between Scientific Policymaking
and Ordinary Observing. Without clear thought on funda
mental matters, the crowd of compensation cases coming to
court will crush even the most refined judicial intuition—
generating a mass of arbitrary decisions that will make it in
creasingly unclear whether there are any constitutional foun
dations for private property in the modern activist state^
F our D e f in it io n s
I shall define my ideal types along two different, if related,

dimensions. T he \firstTr^sis for comparison will be the exis-
tence of a divergenT~understariding of the nature- of legal
language. It is this difference that I seek to capture by calling
one type an (Ordinary ObservTrjThe other d(^Scientific Policy-
Trtaker^ According^ to theTirst approach, legallanguage can-
not be understood unless its roots in the ordinary talk of
non-lawyers are constantly kept in mind. While legal special
ists, naturally enough, will sometimes be called upon to make
refinements generally ignored in ordinary language, recourse
to everyday, nonlegal ways of speaking can be expected to
reveal the basic structure and animating concerns of legal
analysis— stripped of the excessive technicality generated by
special pleading and adversary confrontation. In contrast, the
Scientist conceives the distinctive constituents of legal dis
course to be a set of technical concepts whose meanings are
set in relation to one another by clear definitions without
continuing reliance upon the way similar-sounding concepts
TWO DIRECTIONS FOR LEGAL THOUGHT II
are deployed in nonlegal talk.15 While the practitioner of

Ordinary analysis will find that nonlegal discourse will pro
vide a useful perspective upon basic concepts that may other
wise be lost in a sea of legalism, the Scientist will look upon
such an appeal to ordinary talk as the surest sign of muddle.
T o this first contrast, I wish to add aêcon3 T)relatedôm-
parison that deals with the ultimate objective of legal analysis,
ft isTheir divergence on this issue that I wish to emphasize
by calling one group Policymakers, the other, Observers. On
the Policymaking side, I shall place all those who understand
the legal system to contain, in addition to rules,16 a relatively
small number of general principles 17 describing the abstract
ideals 18_which the legal system is understood to further. It is
this statement of principle, presumed by the Policymaker to
form a self-consistent whole,15' which I shall call a Compre
hensive View. The rules of the system are understood to be
the product of legislative and judicial efforts to implement the
Comprehensive View in the best practical way. Hence, the
function of the Comprehensive View is to provide j i setôf
standards by which Policymakers may determine the proper
content of legal rules and evaluate the performance of the
legal system as a whole? Hf iollowsThat when a Policymaker is
forced to judge the merits of competing rules in the course
of making a legally binding decision, he will select the rule
which— in his best judgment— best conforms to the Compre
hensive View he has imputed to the legal system.20 T o fore
stall misunderstanding, I do not want you to think a Policy
maker must impute to the legal system a Comprehensive View
of a Highly Moral variety— like that imagined by Immanuel
Kant or Myres McDougal. For present purposes, it will be
enough for the analyst to worship a more mundane— if not
more intelligible— God, like Bentham’s Utility or Posner’s
Efficiency. For the central feature of my definition is not the
substantive character of the Policymaker’s vision but its form:
its aspiration to view seemingly disparate legal issues within
a common framework provided by a relatively 21 small num
ber of abstract and general principles that are assumed to
permit the consistent evaluation of all the disputes the legal

system is called upon to resolve.
It is this effort to evaluate particular legal rules in terms of
a Comprehensive View that sets the Policymaker apart from
his idealized opposite. From the Observer’s point of view, it
seems extraordinary to begin analysis by supposing, with the
Policymaker, that legal rules ought to satisfy the demands of
a Comprehensive View. This is not to say that our Observer
is an old-fashioned Realist who argues that judges inevitably
decide hard (or easy) cases on the basis of personal predilec
tion. Rather than dealing with straw men, we shall impute a
more sophisticated point of view to our ideal type. For him
the test of a sound legal rule is the extent to which it vindi
cates the practices and expectations embedded in, and gen
erated by, dominant social institutions. It follows that when
an Observer is forced to judge the merits of competing rules
in the course of making a legally binding decision, his view
of the task will be quite different from that adopted by his
Policymaking brethren. Rather than grounding his decision in
a Comprehensive View stating the ideals the legal system is
understood to serve, the Observer will instead seek to iden
tify the norms that in fact govern proper conduct within the
existing structure of social institutions. Having articulated
the existing pattern of socially based expectations as sensi
tively as he can, the Observer~will then select the legal rule
which, in his best judgment, best supports these institutionally
based norms.
In order to make the contrast between the two ideal types
clearer, it should be emphasized that the Observer is not
necessarily committed to deny what the Policymaker affirms
and to repudiate the notion that legal rules should be under
stood as organized around a Comprehensive View. The rela
tionship between the types is a bit more subtle than that—
what the Policymaker asserts must necessarily be the case, the
Observer is only willing to say may possibly be the case. For
the Observer is quite willing to concede the possibility of a
society in which institutionally based expectations formed a
TWO DIRECTIONS FOR LEGAL THOUGHT *3
larger pattern which could best be understood as organized
around a set of highly abstract and general principles that
qualified as a Comprehensive View. If, for example, the
Benthamite program had ever been thoroughly institutional
ized in a concrete historical society, the Observer in such a
place would be happy to accept the notion that the only so
cially legitimate expectations were those that could be justi
fied by a sound utilitarian calculus. Similarly, if he lived in a
Kantian Kingdom of Ends, the Observer would be prepared
to concede the propriety of testing each proposed legal rule
by the categorical imperative, since this basic principle served
in fact as the foundation for all established social practices.
It seems quite obvious, however, that no modern society
has institutionalized any single Comprehensive View with
anything like this degree of success. Instead of each important
social institution marching obediently to the sound of a single
drummer, different clusters of social practice may often be
organized along very different principles and yet coexist with
one another for very long periods of time. While each of
these institutional clusters may influence one another over
time, it is not at all obvious that this mutual influence will
result in the victory of one Comprehensive View over another
as the principle for organizing all social institutions. It is also
quite possible that the result of this mutual influence will be
the accentuation of different Comprehensive Views in differ
ent areas of social life; or the development of social institu
tions organized on the basis of Comprehensive Views quite
different from those that came before. Thus it would be a
most remarkable coincidence if all important social institu
tions existing during any single generation could best be
understood as organized around any single set of principles
that would qualify as a Comprehensive View. It follows that,
in real societies, Observers should be expected to disagree
with Policymakers as to the degree legal principles ought to
be abstract and general, as well as the extent to which con
sistency criteria should be used to test the soundness of a
particular legal outcome. For a Policymaker, of course, the
mere fact that social practices do not as a whole conform to a

single determinate Comprehensive View does not count as a
reason for giving up the enterprise of thinking about the legal
system as if it were so organized.22 In contrast, the Observer
will insist that appropriate legal principles should be couched
at a level of generality and abstraction no greater than that
attained by a non-lawyer who reflectively and disinterestedly
j ought to identify the expectations of each social actor which
have a legitimate basis in dominant institutional practices.23
This is not to say that consistency has no role to play in the
Observer’s conception of sound legal analysis. Once the Ob
server has articulated the principles that best characterize the
structure of socially based expectations, he is happy to insist
that they are to be applied consistently to all cases in which
they may be invoked with equal force. T hat is, the Observer
— like the Policymaker—will condemn a decisionmaker who
breaches the most elementary principle of formal justice and
discriminates between seemingly like cases without explaining
why they should be treated differently by the legal order. It
is only when the Policymaker uses the consistency argument to
try to force the Observer to organize disparate socially based
expectations into a determinate Comprehensive View that the
consistency issue is joined. So far as the Observer is concerned,
the Policymaker’s willingness to press his concern for consis
tency, generality, abstraction beyond the structure of existing
social expectations marks him out as an immature mind in
sisting on a clarity and comprehensiveness intrinsically un
suited for the subject.24 Such lawyers will be said to lack
something called “ good judgment,” consistently failing to
take into account the endless complexity of social reality in
their overly abstract formulations. In contrast, the Policy
makers among us will look upon their rivals as rather superfi
cial types who rely on their sense of the social proprieties
instead of trying to ground their relatively concrete notions
of socially legitimate expectation in a deeper, more abstract
account of the social objectives worthy of legal support. For
the Policymaker, “ good judgment” comes only after deep and
TWO DIRECTIONS FOR LEGAL THOUGHT *5
systematic thought about the ultimate objectives of the legal
order.25
S o m e I d ea l T ypes
Thus far we have developed two conceptual polarities in

isolation from one another— Scientific has been opposed to
Ordinary; Policymaker to Observer. T o construct the ideal
types that will serve as the principal tools for analysis, it re
mains only to consider the ways in which our elements may be
combined to form stable compounds with interesting proper
ties. T o begin with the fundamentals, it is not very difficult
to define the two ideal types that will preoccupy us in the
present essay. Thus, a Scientific Policymaker is an analyst who
(a) manipulates technical legal concepts so as to illuminate
(b) the relationship between disputed legal rules and the Com
prehensive View he understands to govern the legal system.
In contrast, an Ordinary Observer is an analyst who (a) elab
orates the concepts of nonlegal conversation so as to illuminate
(b) the relationship between disputed legal rules and the struc
ture of social expectations he understands to prevail in dom
inant institutional practice.
We shall, of course, be making a great deal of these defini
tions; and it is precisely because they play a central role that
one should avoid placing a weight upon them they will not
bear. Most important is to avoid the fallacy of misplaced
concreteness. An ideal type is not a concrete person who speaks
with a single voice on every question. Simply because two law
yers may be classed as Scientific Policymakers, for example, it
does not follow that they will agree on all legal issues or even
on most important questions of legal method. T o the con
trary, disputes within the family are often of the bitterest
kind. Thus, proponents of one technical language may con
demn Scientists who use a different specialized vocabulary in
legal analysis; advocates of one Comprehensive View may
vigorously dispute Policymakers who rely upon a different set
of substantive principles to evaluate a legal conflict. On a
deeper level, different groups of Scientific Policymakers may
i6 TWO DIRECTIONS FOR LEGAL THOUGHT
disagree about the criteria which should govern the selection

of a legally relevant Scientific language or Comprehensive
View. Nonetheless, so long as they agree that good legal
analysis requires some form of specialized language and some
determinate Comprehensive View, they will qualify as Scien
tific Policymakers in our sense of the word.
Similarly, a slow second reading of the definition of an
Ordinary Observer should reveal any number of questions
upon which members of this camp may come to blows: what
is the best way to elaborate the structure of nonlegal conversa
tion? what is one to do with the fact that laymen do not all
talk alike? to what extent do social expectations have a struc
ture? how is one to identify dominant institutional practices?
and so forth. My point is not that these questions are easy; it
is simply that they are different from the equally perplexing
methodological questions which preoccupy Scientific Policy
makers as they seek to justify their choice of specialized lan
guage and Comprehensive View. In short, rather than pro
viding a detailed map of the legal terrain, our definitions
serve merely to mark out two very different directions a law
yer may travel in his search for a legally satisfactory solution
to his problem of constitutional interpretation. While we shall
have occasion to fill in the road map as we continue our in
vestigation, vast empty spaces will remain even at the end of
the journey. In this essay we are interested in theory only so
far as it directly illuminates the path to the practical solution
of a pressing constitutional problem. If, in the end, I convince
you that this particular trip was worth taking, there will be
time enough to dream about other far-away places.
Before beginning to travel the paths to compensation law
taken by Scientific Policymakers and Ordinary Observers,
however, there is one final point of orientation that must be
established. Thus far we have spoken of these two ideal types
without trying to locate them more precisely on the larger ter
rain of legal discourse. Do our two models represent the only
viable ways of moving beyond the simple Realist’s dilemma?
If there are others, are we justified in plunging headlong
down only two trails, ignoring the others that may be even
more fruitful?
Happily, a basis for answering these cjuestions has already
been laid by our earlier discussion of the two conceptual op
positions—Scientific v. Ordinary, Policymaking v. Observing
— that provide the foundations for our two ideal types. As the
simple matrix below suggests, we have in reality selected
our two models from a larger scheme that defines four distinct
analytic possibilities:
T able i
Objective of
Legal Analysis
,--------------------- A
--------------------- »
Policymaker v. Observer
Scientific Scientific Scientific
Nature of Legal
< v. Policymaker Observer
Language
Ordinary Ordinary
Ordinary Policymaker Observer
Given this larger framework, we can gain some added insight

into our methodological premises by contrasting the two
favored ideal types with the two that will remain in the back
ground throughout this essay. Consider first the nature of the
disagreement between the Ordinary Observer and the Scien
tific Observer inhabiting the upper right-hand cell. These two
types do not disagree about the ultimate objective of good
legal analysis, but rather about the kind of legal language
that will best assure attainment of the goal. While the Scien
tific Observer agrees that the objective is to identify the legal
rules that best support dominant social expectations, he thinks
the patient elaboration of the structure of ordinary discourse
a most unlikely means to this end. Condemning Ordinary
language analysis as the idle sport of speculative dilettantes,
he will propose that legal concepts be based upon a Scientific
understanding of socially based expectations. Now, for present
i8 TWO DIRECTIONS FOR LEGAL THOUGHT
purposes, it is not a matter of great importance which of the

discipline(s) the Scientist selects as the source of his superior
insight— anthropology, history, psychology, and sociology are
all plausible candidates. T he point here is that the concepts
proffered by the Scientific Observer do not gain their warrant
from ordinary contemporary discourse but from a specialist’s
claim that his particular methods will generate superior in
sight— for it is this claim that distinguishes the Scientific from
the Ordinary view of legal language in our theory.
It should be emphasized, moreover, that in the history of
American law the viewpoint of the Scientific Observer has
had many important proponents. During the half century be
tween 1870 and 1920, legal scholarship was dominated by a
group of scholars who believed that the disciplined investiga
tion of the historical common law tradition would reveal
the basic principles defining legitimate social expectations.26
Hence the Scientific challenge to the Ordinary Observer is
not a lifeless theoretical possibility but a very real force in
deed. Nor can it be said that proponents of Ordinary methods
in law have seriously considered, let alone resolved, the ques
tion of the proper relationship between Ordinary and Scien
tific methods in elaborating the structure of institutionally
based expectations. Indeed, even if we move to the main
stream of philosophical debate, this issue is surprisingly un
developed— though here it is at least possible to find some
stimulating and suggestive efforts.27
Despite the potent claims of the Scientific Observer to at
tention, however, I have chosen to slight his contribution.
While this gap might trouble the compleat interdiscliplinar-
ian, it is not a serious difficulty given our purpose of dem
onstrating to constitutional lawyers the practical necessity of
philosophical argument. For recall that it is our present thesis
that the conceptual tools of Ordinary Observing are suffi
ciently powerful to illuminate the existing structure of com
pensation doctrine in a way that a lawyer would find most
revealing. And if true, this would mean that the contributions
of the Scientific Observer to the practical task of interpreting
the compensation clause will probably be rather limited. For
if the Scientist only succeeds by his more complex and ex
pensive procedures in telling the Ordinary analyst what he
already knows, this cannot count as an important contribution
to substantive constitutional law, however important it may
be to the development of one or another form of legal science.
It is always possible, of course, that a Scientific Observer
would not simply confirm his Ordinary counterpart’s under
standing of social reality, but instead provide a very different
account of the structure of social expectations. Nonetheless,
I think this theoretical possibility sufficiently unlikely that I
shall postpone its serious consideration until one or another
Scientific Observer presents an account that makes the latent
tension between the two forms of Observing a concrete prob
lem for just compensation law. We shall have enough work
in developing the Ordinary Observer’s approach that we can
not afford the potentially pointless labor involved in studying
his Scientific counterpart— at least until some Scientist comes
forward with inconsistent findings about social practice that
trumpet the coming of Judgment Day.
So much for the Scientific Observer. There is, I think, much
less to say on behalf of the Ordinary Policymaker who stands
in an analogous relationship to the Scientific Policymaker on
the left side of our matrix. Once again these two ideal types
agree as to the objective of sound legal analysis and disagree
as to the kind of language that promises best to serve this goal.
Only this time it is the proponent of Ordinary analysis who
will be ignored in the following discussion. According to this
ideal type, deep reflection upon ordinary language and prac
tice will reveal that it can best be understood as organized
around a set of self-consistent principles and policies suffi
ciently abstract and general to qualify as a Comprehensive
View. If this were true, then it might be unnecessary to de
vise a Scientific vocabulary for the purpose of clearly and
systematically developing the implications of the governing
Comprehensive View to each kind of dispute brought before
the legal system. One could then operate as an effective Policy
maker by thoughtfully employing the concepts of ordinary

discourse in evaluating each particular dispute.
I shall, however, ignore this view because it requires certain
empirical assumptions about existing social practices that
seem to me to be plainly false. While, as we have seen, it is
possible to imagine a Utilitarian or Kantian paradise in
which all important social practices were in fact organized
around a particular Comprehensive View, I cannot believe
that I live in such a world. And if social practices are not
organized around a single Comprehensive View, it would be
most surprising if ordinary language could be so organized.
After all, ordinary talk makes sense within ordinary social
structures; if these structures do not form a larger, consistent,
normative pattern, there is every reason to think that common
speech will reflect this underlying social disarray. Hence, I do
not believe Ordinary Policymaking is a coherent mode of le
gal analysis in the social world as it is presently constructed.28
If the law is to further a determinate Comprehensive View,
lawyers will require a language organized on clearer norma
tive lines than the talk generated by laymen having to deal
with the tensions and inconsistencies of their common forms
of life. It should be emphasized, however, that mine is a con
troversial view. One of our leading theorists, Ronald Dworkhi,
has adopted a manner of talking that sometimes— though not
always— makes it seem as it he thought Ordinary Policymak-
ihg”fo be an intellectually sound analytic possibility.29 Until
a convincing and systematic presentation of such a view is
forthcoming, however, I cannot renounce my deep skepticism
on this score. At any rate, as one surveys the present legal
scene, it remains true that no important Policymaking work,
has adopted an Ordinary vocabulary, while Scientific efforts
multiply, indeed, as I shall suggest in the concluding chapter,
TtTs the conflict between Scientific Policymaker and Ordinary
Observer that promises to provide one of the fundamental
intellectual problems confronting the legal profession in the
years ahead.
TWO DIRECTIONS FOR LEGAL THOUGHT 2 1
T he P r o b l e m R evisited
Having selected our analytic tools, it is time to test their

practical utility on a concrete problem. I imagine a conscien
tious judge confronting the Realist’s dilemma as he attempts
to give meaning to the abstract pronouncements of the com
pensation clause. None of the standard professional techniques
— neither the “ plain meaning” of the text, nor the “ intent”
of the Framers, nor the “ settled” principles of judicial deci
sion— mark out a general method of analyzing compensation
problems, much less a way of resolving particularly trouble
some cases. What, then, is to save the judge from simply rely
ing on his personal preferences when called upon to resolve
the complaints pressed on him by the crowd of petitioners
now streaming to the courts for relief?
Our two ideal types may be understood as alternative ways
of answering this question, each marking out a distinct dimen
sion of the present legal culture. On the one hand, a judge
may respond to his perception that the standard legal cues
have failed to resolve his problem in constitutional interpre
tation by relying on a more rigorously developed set of legal
concepts than those with which he was previously content—
if this path is taken, Scientific Policymaking has an obvious
attraction. On the other hand, when confronted with the
failure of the standard legal cues, the judge may despair of
finding a solution in more elaborate forms of explicit legal
analysis, exploring instead the implications of the larger pat
tern of social expectation and evaluation— this is the path of
the Ordinary Observer. In short, the judge may seek to re
solve his initial legal perplexity either by moving far more
deeply into a specialized legal culture or moving away from
self-consciously legal norms into the more general culture.
This essay, then, is grounded on the unsurprising hypothesis
that the first step a judge takes in resolving his legal doubts
carries with it commitments far more significant than may at
first appear. In the next three chapters, we shall travel the

road toward legal specialization with the Scientific Policy
maker. We shall then follow the opposite path with the Or
dinary Observer, before attempting, in the final chapter, some
tentative reflections on the nature of the conflict that has
been revealed.
2 Scientific Adjudication
A n O v e r v ie w of th e S c ie n t if ic A r g u m e n t
Scientific Policymaking, as we have defined it, merely marks

out an abstract possibility for legal thought— it is possible to
imagine a society in which not a single soul has ever thought
of resolving legal disputes by consulting a Comprehensive
View with the aid of a specialized language; it is equally
possible to imagine a world in which the entire legal corps
manipulates a single technical vocabulary to further a definite
Comprehensive View. As constitutional lawyers, however, we
are not interested in abstract possibilities. What is important
is the state of the present legal culture in America. Are today’s
lawyers in fact familiar with forms of Scientific Policymaking
which will cast a powerful light on the fundamental problems
of compensation law?
It is true, of course, that the Scientific Policymaker is hardly
a figure that American lawyers have been taught to identify
by name. But this failure of explicit recognition cannot con
clude the matter. It would not be the first time that lawyers
have begun to build a structure of argument long before they
have felt the need to understand the larger implications of
their practical activities. Consequently, we cannot draw any
conclusions whatever from the admitted fact that only blank
stares will reward the hardy soul who, without further ex
planation, drops the name of Scientific Policymaking in the
middle of a legal conversation. Instead of demanding instant
professional recognition, we must instead take our inspiration
from Moli£re and consider the possibility that American
lawyers— like the good bourgeois gentlemen they are— have
come to speak like Scientific Policymakers without becoming
fully aware of it.
This will be the task of the first half of the book. In the
23
24 SCIENTIFIC ADJUDICATION
present chapter we shall focus upon the Scientific side of legal

discourse. Have lawyers developed a specialized vocabulary—
independent of ordinary language— that may be used to
clarify the Delphic command of the compensation clause? Here
I mean to do more than establish that Scientific concepts are
in fact deeply rooted in the talk of competent lawyers. I also
wish to begin the development of the larger point that these
concepts, once accepted in legal analysis, will significantly
shape the lawyer’s perceptions both as to the nature of his
constitutional problem and the character of its satisfactory
legal solution. Having established the Scientific foundations
in Chapter 2, we turn to consider the Policymaking aspect of
present legal discourse in Chapters 3 and 4. Here, I shall
build on the work of two scholars—Frank Michelman and
Joseph Sax—who are generally understood to have made the
mostTrhpbffanT~contributions to compensation law in” theTpast
quarter-century/My aim will be to show that by thinking self
consciously like a Scientific Policymaker, it is possible to refine
and broaden the existing body of compensation theory and
thereby lay the basis for a body of compensation law that is
"both powerfuP and deeply grounded.
By tEe end of Chapter 4, then, I mean to convince you that
Scientific Policymaking is in fact, if not in name, an emerging
intellectual force of the first importance on the American legal
scene. Yet at the same time, I mean to suggest that it is not
the only cultural reality with which constitutional lawyers
must deal. For when we turn to consider the compensation
doctrine that is generated by the use of our shiny tools, the
result cannot help disturb the sensibilities of anyone familiar
with conventional approaches to compensation law. Although
the methods of Scientific Policymaking seem familiar, and its
doctrinal conclusions seem sensible, the harsh fact is that they
bear very little relationship to the rules that are presently ap
plied by the judges in the name of the Constitution. From this
it follows either that the judges have been strikingly inept or
that they have been thinking about compensation law in a
way that is strikingly different from that characteristic of the
SCIENTIFIC ADJUDICATION 25
Scientific Policymaker. It is this second hypothesis that will

provide the inspiration for our exploration, in the second half
of the book, of the legal methods of the Ordinary Observer.
But I have been getting ahead of myself. It is time to get
down to Srientifir business. If we are to make good on the
promise of Scientific method in compensation law, we must
develop a technical vocabulary adequate to deal with two im-
portant, but quite different,
enough, is the concept of property and what is involved in a
the property-talk ot laymen and insists that protessional talk

about property be grounded instead on a special vocabulary?
estly sophisticated lawyer is. I think, well acquainted with the

techmcaTproperty-talk discussed in the following pages. While
I have not run any empirical studies on the point, I should be
very much surprised if any of the lawyer-readers of this book
will respond to my account of professional property-talk as if
it were a report from an alien legal culture.
The second subject for analysis, however, will make some
what greater demands on the scientific imagination of the
reader. The need arises because a judge’s understanding of
the proper limits of his own role will control his doctrinal
response just as much as his perception of the substantive
problem before him. Thus, even if two Scientific judges hold
the same Comprehensive View, their soIuTi<3lls to compensa
tion problems wi 11 differ if one is a ju d icial innovator while
tHe other is an advocate of judicial restraint. Indeed, the ques
tion of the institutional competence of the judiciary has served
as the central preoccupation of constitutionalTiebate ever since
The unhappy days— now almost half a century distant—when
The Old Court did battle with the New Deal. Despite the
length of the debate, however, even leading scholars and
judges still use labels like “judicial activism’’ and “ judicial
restraint’’ without often giving a precise idea of what they
mean. As a consequence, it will be necessary to break some
Scientific ground and define with care a conceptual scheme
which will, I hope, permit the clearer expression of familiar

but vague arguments dealing with the extent to which judges
may legitimately invoke the Constitution to revise the judg
ments of officials who are also responsible to an electoral check.
We shall, in short, be developing a vocabulary adequate for
dealing first with substance and second with process. On, then,
to the fundamental substantive problems raised by the com
pensation clause, as they are seen by contemporary Legal
Science.
S c ie n t if ic P r o p e r t y T alk
There are, I am sure, many Scientific languages that may

be proposed with the aim of providing a perspicuous frame
work for the analysis of legal problems. Indeed, I am per
sonally acquainted with several competing ones that differ
from one another quite remarkably.1 For present purposes,
however, it will not be necessary to consider the merits of
competing paradigms. For in dealing with the concept of
property it is possible to detect a consensus view so pervasive
that even the dimmest law student can be counted upon to
parrot the ritual phrases on command. I think it fair to say
that one of the main points of the first-year Property course is
to disabuse entering law students of their primitive lay no
tions regarding ownership. They learn that only the ignorant
think it meaningful to talk about owning things free and clear
of further obligation. Instead of defining the relationship be
tween a person and “ his” things, property law discusses the
relationships that arise_between .people w ith respect J o
things. More precisely, the law of property considers the way
rights to use things may be parceled out amongst a host o f
competing resource users. Each resource user is conceived as
holding a bundle of rights vis-a-vis other potential users; in
deed in the modern American system, the ways in which user
ljg lu T m a y jh e Je ^ lly packaged and distributed are wondrously
diverse. And it is probably never true that the law assigns to
any single person the right to use any thing in absolutely any
way he pleases. Hence, it risks serious confusion to identify
any single individual as the owner of kny particular thing. At

best, this locution may sometimes serve as a shorthand for
identifying the holder of that bundle of rights which contains
a range of entitlements more numerous or more valuable than
the bundle held by any other person with respect to the thing
in question. Yet, like all shorthands, talk about “ the” property
owner invites the fallacy of misplaced concreteness, of reifica
tion.2 Once one begins to think sloppily, it is all too easy to
start thinking that “ the” property owner, by virtue of being
“ the” property owner, must necessarily own a particular bun
dle of rights over a thing. And this is to commit the error that
separates layman from lawyer. For the fact (or is it the law?)
of the matter is that property is not a thing, but a set of legal
relations between persons governing the use of things.
Indeed, so far as the Scientist is concerned, it would be
much better (but for the inconvenience involved in abandon
ing shorthand) to purge the legal language of all attempts to
identify any particular person as “ the” owner of a piece of
property. And ordinary language too would profit from a
similar purification if that could only be accomplished. At the
very least, lawyers must be taught to translate with ease from
shorthand to the Scientifically correct legal language. When
ever a judge says Jones rather than Smith is “ the” property
owner, he should be understood to mean: “ in one or another
resource conflict between Jones and Smith, the legal system
places an entitlement in Jones’s bundle of rights rather than
Smith’s bundle.” Simply because Jones won in the battle
over resource use X , it does not follow that he will win in the
battle over use A. It is perfectly possible that the court will
locate the right to use A in Smith’s bundle rather than Jones’s.
Both bundles are bundles of property rights, though one may
be more ample than the other. The real question for the law
—Scientifically understood— is not to identify “ the” rights of
“ the” property owner through some mysterious intuitive pro
cess but to determine in whose bundle one or another right
may best be put.3
It follows that when the Scientific eye scans the constitu
tional text, it will have little difficulty interpreting the first

part of the clause which commands “ nor shall private property
be taken. . . .” Scientifically understood, this phrase can only
have an extraordinarily wide application. Whenever the state
takes any user right out of Jones’s bundle and puts it in any
other bundle, private property should be understood to have
been taken. For it is precisely the Scientist’s main point to
deny the propriety of a muddled search amongst the diverse
bundles of user rights in quest of those that contain “ the”
rights of property. Even if Jones’s bundle contains but a single
user right, it is nonetheless protected against a taking by the
clause. And surely others should not be disadvantaged simply
because their bundles contain more user rights than does that
of poor Jones. It follows that a taking has occurred whenever
the law removes any user right formerly resident in one bundle
and places it in any other. Q.E.D.
If, then, the Framers had simply let the compensation clause
stand complete at the end of its sixth word, the modern Sci
entist would have no choice but to conclude that he was con
fronting one of the most resounding affirmations of the status
quo ever to be uttered in the history of mankind—not a single
pre-existing user right would then be subject to redistribution;
government would be constitutionally limited to the role of
watchman state.
But of course the clause does not end at the sixth word; in
stead it forbids takings only when they occur “ without just
compensation.” And it is this caveat which permits the Scien
tist to escape a “ literal” construction of the clause that would
transform him into an implacable foe of the modern state. So
long as one properly emphasizes the phrase “ just compensa-
tionT^Tt no longer appears thatTthe clause may be successfully
invoked by any old Jones whose user rights have been modified
through law. I nstead, the clause, when read as a~~whole, sug
gests that payment is constitutionally required only when it
~w ill serve the purposes of justice. The diverse task then be
comes one of systematically working out the implications of
the very abstract idea of just compensation in the wide variety

of disputes in which it will come into play.
Yet this is precisely the mission of Scientific Policymaking.
T o put the point more generally, the constitutional text has
been conceived as a mandate for the analyst to, first, impute a
Comprehensive View to the legal system so as to determine
the substantive principles of just compensation and, second,
work out those compensation rules that will further the Com
prehensive View in all litigated cases involving the taking of
property rights, Scientifically understood. Thus the constitu
tional language serves as the foundation for a proud juridical
edifice the Scientific Policymaker is apt to call the Law of Just
Compensation.
And surely it is not a foundation that will seem intrinsically
flawed in the eyes of a wTell-trained lawyer of the present day.
In saying this, I do not mean to suggest that a contemporary
craftsman would absolutely refuse to look at a competing set
of blueprints if they were offered to him. Instead, I am making
the weaker claim that we have said nothing which would
arouse the suspicions of the competent lawyer, inducing him
to look elsewhere in his search for solid ground for compensa
tion doctrine. Indeed, American law has learned to live con
tentedly with structures based on foundations far shakier than
these. So let us suspend a premature scrutiny of dark cellars to
explore the upper stories of the Scientific structure. Even a
cursory glance will reveal that the rooms seem livable
enough; and the furniture is not unfamiliar.
T he G e n e r a l Str u ct u r e of th e T a k in g s P r o b le m
Consider, then, the following scenario: At the beginning of

the tale (Tim e One), observe Jones happily claiming a bundle
of rights (X,Y,Z) over a particular thing that has been pre
viously vouchsafed him by the legal system. Something has
just happened, however, which has induced those in control
of the state to consider again whether it best serves society's
objectives to distribute property bundles in the way that has
3° SCIENTIFIC ADJUDICATION
been done in the recent past. Having considered the matter

afresh, they have rendered a negative answer: it appears that
the world will be better, given the Comprehensive View held
by the state in question, if right Z is removed from Jones’s
bundle and reassigned to Smith (who may be a private citizen
or a state official). So a law is passed rearranging the bundles
in the way indicated at Tim e Two.
Needless to say, Jones is disappointed by this turn of events,
and comes to court at Tim e Three to demand his just com
pensation. As a result, the Policymaker is obliged to determine
the best way in which the costs involved in moving to a better
world are to be distributed among the citizenry: Should Jones
be left bearing the entire loss associated with the legal change
or should this loss be spread among some or all of his fellow
citizens?
This, it seems to me, is the general form the compensation
question assumes so long as the prevailing form of Scientific
Policymaking remains unchallenged. It will, however, help us
later if we devised a particular illustration of the general
problem that will serve to indicate more clearly the concrete
doctrinal implications of one or another form of Scientific
Policymaking. While any number of scenarios could serve this
purpose, it seems best to avoid presenting a dramatic incident
— like the virtual confiscation visited upon Sibson— to serve as
a primary illustration. T o focus the issue in this way would
foster the impression that compensation law is concerned only
with extreme situations, far removed from the mainstream of
social life, when in fact we are dealing with a common prob
lem with which everyone is familiar. Consequently, while I
shall present a hypothetical situation that suggests the char
acter of the real cases now flooding the courts, the story I will
tell is far tamer than some that can be told.
Imagine that, at Tim e One, Jones is “ the” owner of some
marshland who finds that his bundle of rights includes the un
fettered right to fill in the marsh for the purpose of residential
development. Imagine further that at Tim e Tw o the legisla
ture determines that if Jones and the other owners of marsh
land (“ the Marshans”) are permitted to exercise this right, they

will impair existing marine ecological systems in serious— if
unquantifiable—ways. As a consequence the legislature passes
a statute which redistributes property bundles, requiring the
Marshans to preserve a goodly proportion of the marsh un
touched as a condition for obtaining approval for develop
ment. These limitations upon the Marshans’ rights serve to
depress the value of their property bundle from $25,000 to
$5,000 an acre. The new law, however, does not make all resi
dential development impossible; nor does it modify any of the
other user rights to be found in the Marshans’ bundles.
We are now at Tim e Three: the disappointed Marshans
seek to deflect the cost of the legal change from themselves to
others by demanding compensation. The task before us is to
determine the way in which a judge who thinks of himself as
a Scientific Policymaker would evaluate the Marshans' claim.4
S p e c if ic a t io n of J u d icia l R o le
While just compensation decisions are in fact made by a

wide variety of official actors, we shall be primarily concerned
with the problem as it appears to judges—judges called upon
to act in their priestly capacity as champions of property rights
guaranteed by the Constitution. Given this special focus, it is
particularly important to keep in mind that every compensa
tion claim that comes before a judge has already been rejected
by somebody else in government—indeed, many claims have
been rejected many times by different officials occupying dif
ferent parts of our elaborate governmental machine. It follows
that before he may proceed to one or another Policymaking
solution of his Scientific problem, a judge must come to terms
with his peculiar position as constitutional decisionmaker of
last resort: to wrhat extent, and in what ways, is he entitled to
make an independent judgment on the merits of the dispute
before him? how much should he defer instead to the earlier
decisions made by other officials who found the Marshans’
demand for compensation to be unwarranted?
These questions, of course, go to the heart of constitutional
theory. Yet, even apart from their intrinsic difficulty, it would

be a mistake to attempt an answer here. For it is hardly my
goal to establish any single doctrinal solution to the compen
sation question as the revealed truth to be recognized by all
right-thinking Scientific Policymakers of the present day. In
stead, I shall be trying to mark out in a relatively dispassionate
way the lines of Policymaking argument that seem plausible
within the existing limits of the American legal culture. Con
sequently, if there is an ongoing dispute as to the proper
meaning and value of judicial restraint in constitutional ad
judication, I am not interested in papering over this fact by
pretending to advance a solution which will miraculously
silence the contending factions. My goal is to create a Scientific
vocabulary that will fairly state the institutional views of
each important force in the legal culture. In this way it will
be possible to express, rather than suppress, the current struc
ture of plausible constitutional opinion when viewed from the
perspective of a Scientific Policymaker. Instead of pretending
that all judges understood their role in the same way, we could
then speak of the way (various sorts of) restrained judges dif
fered from (different kinds of) more innovative judges in their
treatment of the compensation question— thereby fulfilling
our objective of providing a sophisticated account of the range
of Policymaking argument open to today’s lawyers as they
attempt to make sense of the Constitution.
Yet the achievement of even this modest objective will seem
no easy matter to those who have spent some time with the
voluminous legal literature having to do with the proprieties
of the judicial role. It is a tribute, I suppose, to the adversary
character of our culture that so much passion can be invested
in a debate whose general outlines have been so poorly defined
as the one which opposes judicial restraint to judicial innova
tion. While there have been a number of distinguished con
tributors to the discussion,5 almost all have approached it as
if they were advocates arguing before some imaginary court of
last resort. Each presentation resembles a learned kind of ad
vocate’s brief, in which competing views are treated in the way
that most readily justifies their easy rejection. As a conse

quence, while there is much that could be said about the
particular opinions of particularly important judges or schol
ars, it is not easy to propose a more general framework in
which to accommodate the existing diversity of views within
the same intellectual structure.
It is true, of course, that if we limit our gaze to any concrete
constitutional case, we will often find it possible to get a sense
of the players even without a scorecard. Generally speaking,
the “ activist” is the fellow who wants to overturn the statute
in the name of the Constitution, while the “ restrained” judge
is willing to let the legislative will be done. Nevertheless, even
this rule-of-thumb is hardly an unerring guide to judicial be
havior— it is easy to think of cases in which, quite mysteri
ously, roles are reversed and judges whose conceptions of
judicial role seem well known come out just on the side where
their presence is least expected. In any event, even if this
result-oriented approach were far more successful than it is
in fact, it woidd not serve our purposes here. We are not
merely interested in the fact that restrained judges intervene
less frequently (and on somewhat different occasions) than
their more innovative counterparts, but seek to explain the
kinds of argument that an innovative judge will find congenial
but which will be ruled out of court by his restrained brethren.
I have no doubt that, given the confused nature of the de
bate, it is possible to distinguish between the forms of innova
tive and restrained argument in a variety of ways. Indeed,
when we turn to consider the Ordinary Observer in the second
half of this book, I shall argue that his preconceptions will
lead him to understand the distinction between judicial re
straint and innovation in terms very different from—and in
consistent with— the distinction that will commend itself to
the Scientific Policymaker. Nonetheless, it will be enough for
present purposes to characterize the ongoing debate about
judicial review in a way that clarifies the variety of plausible
Scientific Policymaking approaches to compensation law. Is
there something about the way we have defined the Scientific
Policymaker which will lead this ideal type to understand the

main issues raised by the dispute about judicial restraint and
innovation in a special sort of way?
T o make some headway on this question, it is necessary to
reflect a bit on the definition of a Policymaker. However they
differ in other respects, all Policymakers agree that the work-
product of each legal institution should be evaluated in terms
of the extent to which it satisfies the requirements of the Com
prehensive View the Policymaker imputes to the legal system
as a whole. A Utilitarian Policymaker, for example, would
criticize every decision insofar as it fails to maximize utility;
a Kantian would criticize it in terms of the categorical impera
tive; and so forth. It follows that a Policymaker (whatever his
particular Comprehensive View) would understand a per
fectly functioning set of institutions in the same way:
D e f in it io n i : A perfectly functioning set of legal insti

tutions is one which always generates a decision that best
furthers the Comprehensive View guiding the legal
system.
Now imagine a judge of the Scientific Policymaking persuasion

whose task is to review the output of a set of perfectly func
tioning legal institutions. It should be plain that he would
be a paradigm of perfect restraint, since he would never have
reason to upset the decisions rendered initially by other insti
tutions.
But, of course, our world is hardly any Policymaker’s utopia;
all sorts of decisions are being made that seem questionable
under one or another Comprehensive View. Nonetheless, it is
quite easy to advance a notion of judicial role that would lead
a judge to act a part no different from the perfectly restrained
judge of Utopia:
D e f in it io n 2: A perfectly restrained judge is one who

always reviews the challenged decision before him as if it
had been generated by a set of perfectly functioning in
stitutions.
This is not to say, of course, that a perfectly restrained judge

necessarily would believe that our society is one which is in
fact well ordered. He might, as a sophisticated advocate of
restraint, stand ready to recognize the existence of systematic
malfunctioning; nonetheless, he may justify his refusal to take
the flaws into account in his decisions by contending that the
correction of injustice is a proper task for the political
branches rather than the antidemocratic judiciary. Hence,
there need be nothing at all wrong in having the court define
its role in terms of a proposition that may not only be false,
but obviously so. Indeed, it is precisely the counterfactual
character of the role definition which permits one to account
for the classic case posed by the political activist who trans
forms himself into a paragon of restraint upon ascending the
bench. Before taking on his judicial role, the activist thought
it perfectly proper to view the world in all its manifold im
perfection and so took aggressive steps to remedy its failings;
it is only because he believes his judicial role compels a dif
ferent, though factually inaccurate, view of the world that
restraint seems the proper course.
Nonetheless, it is doubtless true that, except for a few ex
tremists like Learned Hand,6 it is difficult to point to influ^
ential figures who come~cIose to believing in perfect judicial
restraint, as we have defined the term. If we hope to capture
the mainstream of restrained opinion, then, we must come up
writh an idea of judicial role that is not quite so unbending.
T o do this, I shall make use of an idea that I owe to John
Rawls. In his recent book, Rawls imagines a “ well-ordered
society” which stands at some indeterminate point between the
present sorry reality and Utopia. Such a society has not been
freed of injustice; nevertheless basic social, legal, and economic
institutions have been structured in a way that is consistent
with the prevailing Comprehensive View. Thus, while indi
viduals may well act improperly in a particular case, the
system generally performs consistently with basic principles.7
This notion of a well-ordered society permits one to specify
a notion of realistic restraint that will better answer to our
purpose of describing the present state of legal culture. In

contrast to the perfectly restrained judge, this more moderate
judicial type merely believes that judges should decide dis
putes as if they were living In a society with well-ordered,
rather than perfectly functioning, institutions. Given this less
extreme definition of his role, our moderately restrained judge
will have no difficulty carving out a modest place for himself
in constitutional adjudication. While he is obliged, by defini-
tion, to concede the legitimacy of basic economic, social, and
political institutions, he may nevertheless invoke the power of
judicial review as an appropriate remedy for those occasional
failings that may be expected even in a well-ordered society.
It is this modest role, I think, that encompasses the beliefs of
that numerous band of restrained lawyers who simply wish
to deny the court’s right to fashion legal doctrine for the
purpose of leading society down the road to Utopia. This
aspiration can, by definition, never be indulged by the judge
who acts as if he were already in a well-ordered society. For
him, there is nothing left but to do his bit in trying to undo
the inevitable mistakes committed by others who are striving
to implement a particular Comprehensive View—with due rec
ognition that courts too may often err.
It is this notion of realistic restraint that will play a central
role in our essay. For, once it is accepted, it does not seem
difficult to define an opposing conception of judicial role,
which I shall attribute Unlike his
restrained counterpart, the innovator thinks it appropriate for
a judge to take into account the fact that, in one respect or
another, t-hp_yrorJH Hp roafrnnfs folk short of a “ well-ordered
society.” Hence, after defining the respects in which the world
falls short of the “ well-ordered” ideal, he will see nothing
wrong in using his ju dicial office to improve the existing legal
ate of affairs.
Having marked a general contrast between two different
ideas of judicial role, only the task of refining our concepts
remains before we can employ the distinction in Scientific
legal discussion. Refinement is required because the existing
judicial corps exhibits many different kinds of restraint, many

different forms of innovation—variations on a grand theme,
each with its own particular implications for compensation
law. T o provide a structure that will permit us to grasp these
important differences, we shall break up Rawls’s notion of a
well-ordered society into three component parts and clearly
mark the way restrained and innovative judges view each
component. The first element to which we shall give special
treatment involves a proposition that deals with distributive
justice:
Proposition A. Judges are to assume that the distribu
tion of property rights prevailing at Tim e One is generally
consistent with the Comprehensive View they impute to
the legal system, as would be the case in a well-ordered
society.
It follows from our definitions that a restrained judge will
affirm Proposition A, while an innovator will deny it. We
shall, however, reserve special labels that describe more pre
cisely judges’ perspectives on the distributional issue: insofar
as he affirms Proposition A, a judge will be called a conserva
tive; insofar as he denies it, he will be called a reformist.
A second basic feature of a well-ordered society deals with
the operation of other governmental institutions:
Proposition B. Judges are to assume that nonjudicial
organs of government generally act consistently with the
Comprehensive View they impute to the legal system, as
would be the case in a well-ordered society.
Once again, restrained judges affirm, and innovators deny,
Proposition B. More specifically, judges who are restrained
along this dimension will be called deferential, while innova
tors will be called activists.
Finally, the third feature of a well-ordered society involves
a proposition of social psychology which deals with the atti
tude of citizens to their government. On the one hand, society
may contain large groups who deny the value of the Compre
hensive View invoked by the judges and so respond with a

deep sense of grievance whenever their interests are denied
legal protection. On the other hand, a society may be composed
of citizens who— by and large— accept the values enshrined in
the Comprehensive View and generally behave like “ good
losers” when they lose a lawsuit. It should be clear that the
second state of affairs would be characteristic of a well-
ordered society:
Proposition C. Judges are to assume that the litigants,

as good citizens, recognize that they are living in a well-
ordered society and so will accept disadvantageous official
decisions without a deep sense of grievance, unless they
have special reason to believe that they are involved in
one of the exceptional cases in which the system has mal
functioned.
The restrained judges who accept Proposition C will be called
principled to denote their refusal to permit the hurt feelings
of “ bad losers” to alter a decision they think is otherwise re
quired under the prevailing Comprehensive View. In contrast,
the innovators who deny Proposition C will be called pragma
tists, since they think it legitimate to reject a decision they
would otherwise find legally binding in order to check the
disaffection of a significant social group which rejected the
reigning Comprehensive View.
While I take no particular joy in this proliferation of labels,
it seems to me that they are essential to a sophisticated under
standing of the range of options open in the Scientific inter
pretation of the compensation clause. For it should be ap
parent that constitutional doctrine need not be modeled
exclusively upon the theory of restraint or innovation. Instead,
it may consist of an intricate weave of elements drawn from
both models. Nor does it even seem obviously desirable for
judges always to conform to one or another pure type. As a
consequence, it becomes of the first importance to develop a
vocabulary which can express the subtler differences that pro
vide the meat of legal disagreement as to the proprieties of
judicial role. Given the difficulty of the subject, I have no

doubt that our terms are too few rather than too many.
Nevertheless, they at least permit us to conceive of such things
as a judge who is generally restrained but is at times willing
to indulge in certain forms of activist intervention, and so
forth.8 This will suffice to permit our doctrinal sketch to
proceed.
T ow ard a S c ie n t if ic L a n g u a g e ?
It is time to recall the two main objectives set in the present

chapter. T o make a Scientific approach to compensation law
at all plausible, it was first necessary to display a set of special
ized and technical concepts, which did not depend upon the
property-talk of the untrained layman and which enabled the
profession to define the basic substantive problem posed by the
compensation clause. In this, at least, we achieved an easy
victory. Not only does such a Scientific vocabulary exist; all
modern lawyers, insofar as they are Scientists, would use the
same vocabulary to express the nature of their legal problem.
Moreover, using the standard technical language leads to a
distinctive understanding of the series of high-level abstrac
tions contained in the constitutional command. Scientifically
understood, a taking of property covers a very wide range of
governmental activity indeed, making it all the more imper
ative to achieve a clear understanding of the basic legal prin
ciples— or Comprehensive View— that define the occasions
upon which justice demands compensation.
All our Scientific challenges, however, are not destined to
be easy ones. When we turned from substance to process, we
came upon a very different scene. Not only was a single con
sensus view of judicial role absent; a single technical vocabu
lary had not even emerged which clearly expressed the nature
of the underlying professional disagreement. There was, how
ever, one aspect of the discussion that could serve at least as a
small comfort. As a result of the long, complex, and often
technical debate of the past half-century, the profession has
accustomed itself to the idea that it does have something
special to say about issues of institutional competence— things

that would not occur even to intelligent laymen who were
untrained in professional ways of thinking.
The ground, in short, is ready for a Scientific foundation.
T his said, I have only two things to claim for the rather
primitive structure I have constructed. First, I hope you are
persuaded that my notions of judicial restraint and innovation
(as well as their subsequent refinements) follow in a straight
forward fashion from the even more basic idea of Scientific
Policymaking. Thus, if you believe that I have captured some
thing important in my explanation of Scientific Policymaking,
it should not be very difficult to accept the theory of judicial
role which follows from it. Second, I should like to claim
that my theory of judicial role does in fact provide a fruitful
way of making sense of some of the basic issues underlying the
long debate about judicial review that will continue to divide
the profession within the foreseeable future. The initial test
of this will be the extent to which the theory of judicial role
in fact illuminates the discussion of the substance of compen
sation law to be attempted in the next two chapters.
3 Utilitarian Adjudication
C hoosing A C o m p r e h e n s iv e V ie w
Only one piece of the methodological puzzle remains to be

solved before our model of constitutional adjudication be
comes operational. Even after we have specified a judge's un
derstanding of (a) the proper limits of his own role and (b) the
basic structure of the compensation question, we shall be
unable to define his preferred doctrinal solution until we are
told (c) the substantive principles contained in the Compre
hensive View he has chosen to guide his constitutional deci
sions. And it is at this point that perhaps the deepest challenge
arises for those who wish to make good on the promise of
Scientific Policymaking. For it is possible to imagine any num
ber of Comprehensive Views— Marxist, Maoist, Existentialist,
Absurdist— that a judge could potentially invoke to interpret
the decisive concept of “ just compensation” to be found in the
constitutional text. Yet in making this choice, a judge surely
is not entitled to roam the range of conceivable Comprehen
sive Views with the aim of selecting the one that suits his
personal fancy. Instead, whatever his own personal predilec
tions, the judge’s choice of a legally binding Comprehensive
View must be limited in a very constraining fashion. Yet what
are these limits? How is the judge to sift the legally admissible
Comprehensive View from all the others that are in fact pas-
sionately held in the world today, not to speak of those that
merely seem plausible? This is the master question for the
Policymaking judge, for whom the mainstream jurisprudential
debate dealing with “ the rule of recognition” would command
far more than academic interest.1 Despite the importance o f“
the question, however, I shall not try to answer it. As in my
treatment of the problem of institutional competence, my aim
instead is to focus upon the ideas that are in fact powerful
4»
42 UTILITARIAN ADJUDICATION
forces in the preseyit legal culture— to explore the basic ten

sions in our existing legal system through an exploration of
the compensation clause of our existing Constitution.
Once this limited field of vision is accepted, a most re
markable scene appears in view. For the fact is that lawyers—
particularly those who pride themselves upon their sophisti
cation— are increasingly willing to talk like Policymakers.
Without troubling themselves over murky jurisprudential
matters, they are simply invoking one or another Comprehen
sive View in the ordinary course of legal debate about this or
that rule or decision. Moreover, if one attends to the substance
of the discussion, one finds that rather than ranging widely
over the endless possibilities, A merican lawyers are in fact
limiting themselves to the elaboration of two different, but
not -different,. -themes. QneTsJJEfficiency”—which among
the competing rules will maximize something-or-another-that-
sounds-like-Social-Utility? The other theme is less well devel
oped but is becoming clearer, if only in reaction to the
growing Utilitarian chorus. This stream of talk I shall call
^ KantiaiTs>mp1y to suggest its general concerns, if not usually
its particular phrasing.
Our analytical path follows immediately from these observa
tions. In this chapter we shall consider the way each important
kind of restrained or innovative judge will deal with the
compensation question if he adopts a Utilitarian Comprehen
sive View. The next chapter attempts a similar analysis of the
various modes of Kantian constitutional adjudication. By in
dulging in this drastic bifurcation I do not mean to suggest
that all those writers and lawyers who may be fairly placed
within one or another of these two camps in fact hold identical
views on all issues. Intratribal differences are always observ
able, often bitter, and sometimes important. Our task here is
to trace the main line of analysis, deferring the elaboration of
any particular variant to those who are sufficiently interested
to join in the larger enterprise.
UTILITARIAN ADJUDICATION 43
Of J u d ic ia l R o le and C o m p r e h e n s iv e V ie w
How, then, will a Scientific judge who wishes to maximize

social utility resolve the problem set for him by the compen
sation clause? I wish to establish that there is no single way to
answer this question within our legal culture— that the proper
utilitarian solution will depend uporr~th^~particutar concep
tion of judicial restraint or innovatiorTtliat the decisionmaker
considers to be most appropriate.2 Yet this basic point opens
up an embarrassment of expositional possibilities. In pre
senting the Utilitarian picture of compensation law, shall I
begin from the standpoint of the perfectly restrained judge
or should I start with his perfectly innovative counterpart?
Or perhaps one or another model which mixes restraint and
innovation provides the best entry point.
As a general matter, there is absolutely nothing to be said
for giving expository priority to one or another of these ap
proaches. Nevertheless, for the purposes of construing the
compensation clause, I have found it most enlightening to
begin with the purely restrained judicial type. While such a
starting point would be most unrevealing for the interpreta
tion of other basic constitutional texts, there is a sense in
which just compensation law is of peculiar importance to
judges who approach their task with the assumption that the
distribution of property is basically justr as it would be in a
“ well-ordered” society. For it is these conservative judges who,
will find most attractive the symbolic affirmatiQD-of-the -status—-
quo ante involved in compensating those injured by a legisla
tively inspired march to a better tomorrow. Since conservatism
regarding the distribution of income is one of the principal
aspects of judicial restraint— as I have defined the term—it
will serve clarity to begin with the perfectly restrained judge
and establish the importance of institutional role by showing
how large doctrinal consequences may follow from even rather
modest changes in this “ pure” role specification. After con
sidering the compensation principles that would be favored
44 UTILITARIAN ADJUDICATION
by a paragon of restraint who was (a) deferential, (b) con

servative, and (c) principled, we shall introduce at first a single
innovative element into the role characterization by dealing
next with the judge who— while remaining both conservative
and principled— adopted a variety of more activist stances. It
is only at this point that we shall ring the doctrinal changes
that follow upon embracing reformist rather than conservative
principles, finally to consider the importance of the distinc
tion between principled and pragmatic judges. By injecting
innovative elements into the analysis in this sequential fash
ion, it will prove possible to sketch the rather complicated
pattern of intermediate positions open to a judge with utili
tarian opinions— a task all the more important since I suspect
that the weight of constitutional opinion on judicial role has
its center of gravity at neither of the polar extremes.
T he R e st r a in e d I n t e r p r e t a t io n of th e C lau se
Tw o lines of argument would suggest themselves to the

realisticallyTestrained Scientific judge trying to make sense out
of the compensation clause. We shall call the/fuârgiunen^'
the Appeal to General Uncertainty, because it is based on the
fact that when any institution makes any decision which in
creases, the -level-of uncertainly, -this-imposes costs upon all
those citizens who already found their general social environ
ment too risky. Apprised of the fact that property rights have
been redistributed in cases like that of the Marshans, these
risk-averse citizens will respond by investing extra resources in
-adaptive behavior that would have otherwise been spent ob
taining positive utilities. While the size of these costs is (at
least in principle) an empirical question, certain basic distinc
tions should be kept in mind by a judge wishing to assess the
magnitude of uncertainty costs in a particular class of cases.3
Generally speaking, risk-averse individuals are faced with
three options when apprised of the risk that future govern-
"TSierital regulation may make it more expensive to engage in a
given activity.4QH£st) they may seek to insulate themselves
-against the extra risk by insuring in the private market;
secondÛiey may insulate themselves by reducing the amount

they participate in tlieTrsky activitj^jLliircp they m a y simply
bear the risk and continue as before. Now "as a persorTEecorhes
increasingly risk-averse, he will find it increasingly attractive
to respond by selecting one of the first two strategies. It follows
that, as these strategies become more expensive to implement,
the Appeal to General Uncertainty becomes increasingly im
portant. At the extreme, if it is especially difficult for people to
insure against the risk or escape it by shifting resources into
less risky alternatives, just compensation by the government
becomes the only remaining way to save the risk-averse from
accepting costs they might be willing to pay a good deal to
avoid.5
Of course, our Utilitarian world may be inhabited not only
by risk-averse citizens but by some risk-takers as well. And
these people can be expected to welcome the fact that the
world has become riskier and to reduce the resources they
would otherwise expend in search of additional gambles not
otherwise proffered in the normal course of life. While it is
always an empirical question whether these cost savings are
greater or less than those incurred by the risk-averse, it will
often be true that the interests of the risk-averse will dominate
in a sound felicific calculus.
Unfortunately, this fact, without more, will not permit
litigants to argue that the Comprehensive View adopted by
the Utilitarian judge requires their compensation. While there
are costs involved in raising the level of uncertainty, there are
also costs in reducing it by requiring governmental compensa
tion: notably the costs involved in processing both deserving
and undeserving lawsuits through the legal system to a success
ful conclusion.6 Thus, the success of an Appeal to General Un
certainty turns on whether the total “ uncertainty costs” (U)
are greater or less than the “ process costs” (P) involved in
eliminating the uncertainty.7 While, as we have suggested,
there is absolutely no guarantee that U > P most of the time,
it is nevertheless possible to isolate the occasions when the
appeal is entitled to particular weight by a restrained U tili
4 6 UTILITARIAN ADJUDICATION
tarian judge. Thus, if the claimant’s problem seems to be one

in which process costs are exceptionally low, or uncertainty
costs exceptionally high, the judge should recognize that the
appeal is relatively more likely to be grounded on sound
Utilitarian reasoning. Of course it is always possible that, even
when uncertainty costs are exceptionally high, process costs
could be higher. (Similarly, when process costs are low, un
certainty costs could be even lower.) Nevertheless, a strikingly
high U or low P should at least suggest the wisdom of a more
searching and sympathetic scrutiny if the judge is properly to
perform his restrained mission of searching out hidden lodes
of Utility which have escaped the attention of a well-ordered
set of political institutions.8
The Appeal to General Uncertainty does not by its own
terms discriminate between risk-creating actions undertaken
by the government and those undertaken by other institu
tions. Regardless of the source of the risky action, good felicific
accounting may suggest that state compensation will maximize
overall utility.9 But a second set of policy guidelines may
be generated if the restrained judge narrow’s his focus so as to
concentrate upon the more particular failures of decision
making even in a “ well-ordered” Utilitarian state. For it
should be recalled that, under Proposition B, it remains possi
ble that the Marshans’ case represents one of those exceptional
situations in which the political branches have made a mistake
in their felicific calculation. And when this occurs, a special
loss will be suffered as a result of the property redistribution
at Tim e Tw o that is quite different from that contemplated by
the Appeal to General Uncertainty. For under Proposition C
the citizens of the well-ordered polity may be expected to en
dure restrictive legislation without complaint only if they
believe that it is in fact justified on Utilitarian grounds. If,
however, the Marshans believe that theirs is the exceptional
case in which the felicific calculus has gone awry, they will
suffer a special form of disutility as a result of the redistribu
tion of property rights— the outrage and demoralization of
good citizens who believe themselves victims of unprincipled
behavior. Indeed, outrage of this kind may spread far beyond

the small Marshan circle to many others who learn of the
Marshans’ plight. While the resulting disaffection may not
manifest itself in any of the immediate and palpable ways in
which risk-averse individuals respond to general uncertainty,
it is of obvious concern to the restrained Utilitarian judge,
who is in principle equally mindful of concealed psychological
affronts as he is of more obvious forms of distress; and who is,
moreover, alive to the long-run disutility attendant upon
citizen disaffection with the state’s decisionmaking processes.
Slaving isolated af'second form of disutility^vhich we shall
call Citizen Disaffection, that may result from a redistribution
of proper t y b u n dies, the" question remains whether the com-
pensation clausefTTas a role in an overall policy designed to
reduce disaffection to its optimal level. T o make the matter
complicated, it is only necessary to recognize that even good
citizens may be mistaken in their criticisms of the state’s cost-
benefit analysis. Thus, even if the court believes the Marshans’
attack on the legislative cost-benefit analysis to be wrong on
the merits, it does not follow that a principled Utilitarian
judge will invariably discount the Appeal to Disaffection.
Right or wrong, the Marshans may still feel disaffected— and
if the sum of uncertainty and disaffection costs is greater than
the process costs involved in administering a compensation
scheme,10 the Marshans should be paid even though the court
believes them wrong on the merits. Moreover, even a deferen
tial judge may properly fear that the costs of disaffection will
fail to receive their full weight by decisionmakers operating
within a well-ordered framework. It takes exceptional com-
passion and insight for a decisionmaker to come to terms fully
with the fact that others honestly and in good faith believe
that hisdecision is just plain wrong. If there ever is a case for
relying o n a disinterested third party to make an independent
assessment of a special kind of cost, it is this one.
This is not to say, however, that the judge’s view of the
merits of the Marshans’ claim is altogether irrelevant to an
assessment of the weight to be given to Citizen Disaffection.
4 8 UTILITARIAN ADJUDICATION
If the felicific merits of the statute seem quite clear to the

judge, he will consider it unlikely that the Marshans will have
reasonable doubts as to the good Utilitarian foundation for
the property redistribution. And so long as this is true, a
principled judge will be confident that the Marshans, as good
citizens, will not become unduly disaffected by an adverse
decision of their compensation claim (recall Proposition C,
on p. 38). Thus, the Appeal to Citizen Disaffection will seem
increasingly plausible as the Utilitarian merits of the legisla
tive calculus seem increasingly uncertain to the judge himself.
At a certain point, of course, judicial doubts about the calcula-
tion will ripen into a decision entirely invalidating the chal
lenged legislation. Since our restrained judge is deferential,11
however, the case against the new statute may not seem to
him sufficiently compelling to warrant this extreme step.
Nevertheless, the court may well find the level of Citizen Dis
affection with the statute of be sufficiently high to warrant
compensation for the losers, even where there are rather con
siderable process costs involved in the attempt. Thus, the
Appeal to Citizen Disaffection may be understood here as a
technique by which a restrained judiciary—without commit-
ting itself to any ultimate constitutional principle—may none
theless signal to the legislature that it is approaching the verge
5F~cbnsfTtutional propriety. Indeed, it is a way of openingfa
dialogue befween branches of government on constitutional
principle^ of a sort whose importance to restrained judicial
theory was properly emphasized by the late Alexander Bickel.
T o put the point in Bickelian terms, compensation law may
serve as a passive virtue—albeit of a relatively active sort.12
We can sum up the two different Utilitarian appeals within
the framework of a single equation. The critical question, in
any given class of cases,13 is whether P ^ U -f D, where P =
process costs, U = uncertainty costs, and D = the costs of citi
zen disaffection. If P > U + D, compensation should be de
nied; if P < U + D, it should be granted.14 T o put the point
in terms more useful to courts, restrained Utilitarian judges
should be more responsive to just compensation claims as
process costs decline, as uncertainty costs increase, and as the
general utility of the legislation is increasingly subject to rea

sonable doubt.
T he A c t iv ist I n t e r p r e t a t io n of th e C lau se
Thus far our sketch builds upon the pathbreaking analysis

advanced by Professor Frank Michelman some time ago in the
H arvard Law R eview .15 It is true that, in his general account
of the Utilitarian’s compensation calculus, Michelman does
not relate his argument as clearly as he might to the restrained
conception of judicial role.16 Nor does he distinguish clearly
between the Appeal to General Uncertainty and the Appeal to
Citizen Disaffection.17 On a substantive rather than method
ological level, Michelman seems to emphasize far too little
the importance of reasonable doubt as to the Utilitarian basis
of the challenged legislation in leading a restrained judge to
order compensation of those who have lost by the doubtful
decision.18 Nevertheless, I am happy to emphasize my in
debtedness to Michelman’s account.19
It is time, though, to move beyond the perfectly restrained
interpretation of the clause that Michelman’s approach— as
reinterpreted here 20— represents. In doing so, however, it will
serve little purpose to move at once to the polar opposite
represented by the “ pure” judicial innovator. Such laboratory
purity simply does not exist in the real world of constitutional
interpretation, however much it may serve as a convenient
reducing agent for the more fervent believers in judicial re
straint. What is required instead is the gradual introduction
of innovative elements into the restrained model, slowly mov
ing to a conception of judicial role that is closer to the pure
innovative type than it is to the pure restrained type. If we
introduce these innovative elements carefully enough, it will
be possible to suggest the delicate greys that in fact predomi
nate in an accurate portrayal of the American judicial mind,
Scientifically understood.
Let us begin our Scientific transformation with a critical
scrutiny of the restrained judge’s understanding of the opera
tion of nonjudicial institutions, reflected in Proposition B
(p. 37) in the skeletal structure of a well-ordered society.
5° UTILITARIAN ADJUDICATION
While our restrained judge was obliged to assume that the

other parts of government generally functioned felicifically, it
is possible to generate a variety of activist positions by modi
fying Proposition B in one or another way. Since I shall re
strict myself to the range of current professional opinion, I
will not discuss the “ pure" activist who denies that judicial
deference is ever appropriate. Instead, I shall be dealing with
those “ discriminating” activists who do not deny that they
should often show great deference to the judgments of other
branches of government, but merely wish to mark out situa
tions in which the “ normal” felicific functioning of lawmaking
institutions cannot be so readily presupposed. The principal
task then becomes the identification of those structural con
ditions under which the normal presumption of regularity
attaching to the conduct of nonjudicial officials should no
longer be indulged with its accustomed weight.
This discriminating form of activism is of course familiar in
modern constitutional law, where so much can be traced tom e
Carolene Products footnote.21 It fell to Professor Joseph Sax,
however, to bring the concerns of this more general movement
to the compensation problem. Thus, in the first of his two
important essays on the subject,22 Sax urges us to recognize
that the modern welfare state seeks~TcT discharge governmental
functions far more ambitions than those attempted by the
watchman state of classic laissez-faire theory. No longer do
officials- content themselves with medialmg conflicts that pri-
vate parties are unable or unwilling to resolve by other means;
in addition to its “ mediational” functions, the state has also
taken on tasks in which its officers are called upon to com
mand enormous resources and large bureaucracies— functions
which may justly be called “ entrepreneurial.” 23
This fact would be relevant to a Utilitarian judge of the
activist persuasion if it seemed reasonable to modify our
deferential Proposition B in the following way:
\ Proposition B v An activist judge may appropriately as-

1 sume that, in general, governmental enterprises involving
\ large bureaucracies and vast resources tend to self-
U T IL IT A R IA N A D J U D IC A T IO N 51
aggrandi zement. That is, they will systematically wish to

pursue, and succeed in mobilizing resources for, projects
that are not justified on a sober Utilitarian cost-benefit
analysis.
I shall not attempt a lengthy defense of this intuitively

plausible hypothesis, simply noting that modern political
science does nothing to undermine it.24 Indeed, the fact that
the self-aggrandizement hypothesis does not seem to require
complex empirical verification argues for the propriety of its
use as a basic postulate of constitutional doctrine. While
constitutional adjudication may sometimes require judges to
evaluate complex and problematic propositions of empirical
political science, it surely is far better to avoid building an
impressive doctrinal edifice on so shaky a foundation.
In any event, once the self-aggrandizement hypothesis is
conceded, the rest of the argument seems quite straightforward
for the activist Utilitarian judge. Given the tendency of the
governmental entrepreneur to discount the utilities of those
it miures, a strict compensation rule will require the entrepre
neur to take into account costs that will otherwise be ignored
or belittled. As a result of the compensation requirement,
these external costs will now represent a money drain on re
sources otherwise available to the agency, thereby creating
internal incentives to consider them seriously in felicific cal
culation. Moreover, the potential ambiguities involved in an
approach that seems to depend so heavily upon characterizing
a governmental agency as “ entrepreneurial” rather than “ me-
diational” can generally be resolved so long as the larger
purpose of the distinction is kept clearly in mind. Rather
than engaging in an arbitrary exercise in stipulative defini
tion, the distinction invites the judge to ask whether, as a
person steeped in the practical operation of government, he
believes the agency to be of a size and structure such as to
make the self-aggrandizement hypothesis particularly plausi
ble. If the agency passes this test, it qualifies as entrepre
neurial; if not, mediational. While this test allows of doubtful
cases, it seems no more vague than many administered by
52 U T IL IT A R IA N A D J U D IC A T IO N
judges. Thus, it would seem pretty clear that the Defense

Department or a Highway Department or the National Park
Service would fall on the entrepreneurial side of the line;
while a local zoning board would not.25
A second concern expressed in Sax’s writings is also readily
accommodated within the activist Utilitarian’s concerns. Here
the focus is on a class of decisions which inevitably contain a
large component of arbitrariness yet which must necessarily
be made if a project deemed desirable is to be accomplished
at ail. For example, after a city has decided to institute a sys
tem of vest-pocket parks within the town center, it must de
termine the particular sites that will serve this purpose. Yet
competent cost-benefit analysis may reveal that any number
of sites are equally desirable. Similarly, the precise location pi
a highway may, within broad limits, be a matter of indiffer
ence from the point of view of aggregate social utility; yet a
determinate decision must be made.
In cases like these the front-line decisionmaker must in:
evitably make a decision that cannot be intelligently reviewed
by his superiors. Yet, once unreviewable discretion is granted,
will if not be abused by low-level officials? W ill not each en-
dangered property owner have every incentive to bribe the
decisionmaker to burden somebody else? Given the difficulty
of a probing review, will not the administrator have every
incentive to sell off his decision to the highest bidder? It
does not seem particularly daring for an activist judge to re
spond to these dangers by adopting a rule of special vigilance:
Proposition B 2. In cases where a front-line decisionmaker
is obliged to select from a class of similarly situated prop
erty owners a small subset who will bear the burden of a
collective enterprise, it is appropriate for an activist judge
to fear that corrupt or partisan factors have led the de
cisionmaker to burden one, rather than another, group
of property owners.
Given Proposition B 2, an expanded compensation practice
has two attractive properties. First, the promise of just com
pensation will often be enough to eliminate the incentives

for bribery that would otherwise exist— if Jones will be com
pensated when his land is taken for a highway, there is far
less reason for him to pay off the Highway Department to
route the road elsewhere. Second, the payment of compensation
should, at the very least, serve to reduce the serious disaffec-
tion that results when a citizen suspects (but cannot prove)
that his heavy losses are due simply to corrupt or partisan
official motivation. Hence, it does not seem wrong— at least
for a judge with a modestly activist bent— to construct a set
of doctrines to serve as “ the equal protection dimension of
compensation law,” as Sax aptly puts it.26
We have, then, isolated two governmental structures in
which a discriminating activist may plausibly view nonjudicial
lawmakers with less than the usual deference. In the first, an
agency’s structure makes the risk of institutional aggrandize
ment so obvious that its claim to being a “ well-ordered” insti
tution seems problematic; in the second, the agency is obliged
to burden one property owner rather than another when its
organizational objectives do not permit it to derive a reason
for choosing a unique owner as the one who will most ap
propriately bear the cost. This much of Sax is, I think, of
incontrovertible value to any Utilitarian willing to indulge in
any form of judicial activism, however discriminating.
Before turning to those elements in Sax’s approach that
seem a good deal more troublesome, we can consolidate our
understanding of the Utilitarian approach by considering
more exactly the relationship between the contributions made
to compensation theory by its two leading contemporary in
terpreters: how precisely do Sax and Michelman—as rein
terpreted here— fit together? 27 Are they at odds with each
other or can their insights be reconciled? Of course, Sax’s
analysis requires a judge to be more activist than does Michel-
man’s. Nonetheless, it is possible to detect a common theme^
the bridge concept is, I think, the notion of Citizen Disaffec-
tion. As we have seen, the Appeal to Citizen Disaffection is
ultimately grounded in the judge’s perception that the U tili
tarian justification of the challenged action is open to sub

stantial doubt even among good Utilitarian citizens. Sax’s
great achievement lies in bringing this general concern to
bear in the analysis of the concrete workings of the modern
bureaucratic state. For there can be little doubt that Citizen
Disaffection will be an inevitable by-product of the self-
aggrandizing and discretionary character of much bureaucratic
conduct. And it is at least possible that the judicious use of
compensation law will significantly reduce disaffection within
a wide variety of bureaucratic decisionmaking frameworks.
Thus, it is not at all difficult to fit Sax and Michelman into a
larger Utilitarian structure. Both may be understood to affirm
the importance of Citizen Disaffection—only Sax explicitly in
vites the court to adopt a discriminating form of activism
which Michelman does not require, though he does not ex
plicitly reject it either.
T he F u r t h er R e a c h e s of th e
A c t iv ist I n t e r p r e t a t io n
We are not done, however, with Professor Sax’s efforts to

ring the changes on judicial activism. In a recent article in the
Yale Law Journal , 28 Sax repudiates his earlier effort to re-
orient takings law around the entrepreneurial/mediational
distinction, and instead advocates an approach which would
drastically restrict the scope of the compensation clause j:o
cases that fall within the “ equal protection” rationale sug
gested by Proposition B 2. During the seven years that ~sep
arate his two articles, Sax apparently confronted another
kind of breakdown in nonjudicial lawmaking that dwarfed in
significance the tendency to bureaucratic self-aggrandizement
that he had previously identified. The institutional break
down that now most concerned him was the asserted malfunc
tion of the legislative, rather than the administrative-bureau
cratic, process. Sax emphasizes the difficulties a large group
encounters when it seeks to organize itself for political action,
especially when each individual group member has relatively
little at stake in the enterprise. T he story is by now familiar.29
Despite the fact that the damage suffered by the group as a

whole may be large indeed, each group member may suffer
a relatively small individual loss and find it in his interest to
take a free ride on the political efforts initiated by others to
redress their common grievance. After all, if the others are
successful in inducing a legislative redistribution of property
rights, the free rider may well gain the benefits of political
action without bearing any of its costs. T o a self-interested
economic man the prospect is delightful; and if enough peo
ple behave as the economic model indicates, the result will be
that interests in which multitudes are affected will tend to be
at a disadvantage in the legislative process if they are obliged
to engage in a political struggle with a small number of op
ponents, each of whom has a great deal at stake. While their
adversaries will have little difficulty organizing their political
forces, the large diffuse group will carry far less weight than
their interests deserve in the ideal Utilitarian calculus. It is
this picture of the political process that seems to motivate
Sax’s new-found hostility to compensation practices. Appar
ently, the concern is that a compensation requirement will
place yet another obstacle in the path of those groups—
notably environmentalists—whose road to political efficacy is
already improperly obstructed by organizational difficulties.30
Yet surely this is take too simple a view of the relationship
between compensation law and political action. Even if the
model sketched above were to constitute the whole truth
about political efficacy—something which is most emphatically
not the case— the result suggested still does not follow with
anything like the inexorability called up in casual conversa
tions on the subject. Indeed, it is quite easy to use this simple
model to suggest the wisdom, rather than the folly, of a wide-
ranging compensation practice. The counterargument pro
ceeds by focusing upon the motives of the relatively small
group of property owners whom Sax believes to have an im
proper organizational advantage in the political struggle: why
precisely is it that they are expending their scarce resources
on politics rather than using the money to buy other goods?
T he answer— especially given the materialistic cast of the

model— seems reasonably easy to establish. T he property own
ers, it is fair to guess, are spending money in politics princi-
paITy~becaase they are-afraid that restrictive laws wit HSiTpassed
without their receiving compensation. If they were in fact as
sured of obtaining compensation to cover the losses generated
by restrictive legislation, they would no longer have any direct
financial incentive to continue the political struggle. Thus,
rather than making their task more difficult, a compensation
. practice could well make the environmentalists* struggle an
easier one. Rather than confronting fierce resistance from a
small number of well-organized property owners, they will in
stead do battle principally with the representatives of a diffuse
group of taxpayers who would— if asked—be unwilling to pay
the higher taxes required by the enactment of restrictive en
vironmental laws which guaranteed compensation to those
particularly affected. Yet this numerous band of anti-environ
mentalist taxpayers may well be as difficult to organize as the
environmentalists themselves.
It follows that Sax has moved far too quickly from (a) the
admitted free-rider difficulties of environmental groups to
(b) the need for restricting the range of compensation law.
The “ free-rider” argument, by itself, does not provide a con
vincing reason to believe that the outcome of the environ
mentalist-taxpayer struggle under a pro-compensation policy
will be less favorable to environmental interests than will the
outcome of an environmentalist-property owner struggle occur
ring under an anti-compensation policy. Of course, the “ free-
ride” phenomenon is but one of many in political life, and
it may well be that Sax’s intuition could be vindicated in a
more fully developed model that took into account ideology,
political parties, and corporate-bureaucratic behavior, among
other things. All I wish to suggest is that the relationship be
tween compensation practices and political efficacy is jar more
complicated than it would seem at first glance; and that the
activist case for a dramatic restriction in the scope of com
pensation law has yet to be made.
T he R e f o r m ist I n t e r p r e t a t io n
of th e C lau se
Thus far, we have considered the implications of changing

only a single assumption that gave shape to the jurisprudential
universe inhabited by the restrained Utilitarian judge. Doubt
less there remain unexamined a number of interesting activist
ways of modifying the restrained judge’s deference toward
other institutions; 31 it has been my intention to say enough
merely to suggest the main lines of the analysis. It remains to
perform a similar sketch of the legal prospect afforded to the
judicial innovator if he subjects Propositions A and C, de
scribing the distributional and social psychological dimensions
of the well-ordered society, to analogous modifications. Let us
turn first to the restrained judge’s conservative stipulation of
the generally utility-maximizing character of the distribution
of property rights obtaining at Tim e One (Proposition A, on
p. 37). If the innovator wishes to reject this general endorse
ment of the status quo, there are several reformist positions he
might adopt, each with different implications for a proper con
struction of the compensation clause.
The most modest kind of reformer is the judge who, while
refusing to accept the conservative's view of the status quo, also
refuses to commit himself to the proposition that the existing
distribution is affirmatively unjust. Instead this modest re
former simply takes an agnostic position on the Utilitarian
foundation of the distribution of property, and expresses com
plete ignorance as to the degree to which the state of affairs
prevailing at Tim e One can be justified in terms of the pre
vailing Comprehensive View. Given the judge’s agnosticism,
it seems almost certain that he will defer on this question
to the legislature’s judgment.32 Thus, if the legislature seems to
be proceeding on the assumption that the general distribution
of property at Tim e One was just, the agnostic judge has no
reason to doubt the validity of this assumption, and his anal
ysis of the compensation issue will proceed as if he were a
conservative judge.
But suppose the legislature’s action is proceeding on a dif

ferent premise. Suppose the principal reason the law restrict
ing the Marshans has been passed is the belief that they have
been getting too much utility, and the Earthlings too little, if
society is to reach an overall maximum. Once again, as an
agnostic, the judge has no good reason to question this judg
ment any more than he has the alternative one. Only this time
the legislative purpose does make a difference in the analysis.
If the legislative action is premised on the notion that the
Marshans have previously had an overly large slice of the
utility pie, it would obviously defeat this judgment if the
court were to decree that the Marshans be compensated for
their loss. Hence, since the agnostic is unwilling to impugn
the validity of the legislature’s distributional judgment, com
pensation must be denied regardless of the preceding analysis.
It follows that the agnostic judge will be very much alive to
the need for ascertaining the principal purposes motivating
the challenged legislative decision. In one way or another, he
must ascertain whether the statute is principally grounded in
a judgment that a particular class in the population generally
has too much utility for society’s good, in which case com
pensation must be denied; or whether the legislature instead
proceeded on the theory that while the general distributive
pattern is sound, overall utility may be maximized yet further
by the reallocation of a particular class of property rights, in
which case the usual conservative analysis of takings law ap
plies. In terms of our standard hypothetical case, has the
legislature acted against the Marshans because they are too rich
^ q r jiociety’s good or because there is some peculiar inefficiency
involved in marshfilling, quite apart from the general prin
ciples irporTwhich property is distributed in society?
—^W ilhi»-tlie coiite^l "oT1tHe~^resent legal culture, this par
ticular question is an easy one. It is a rare legislator in our
society who sees important questions of class justice involved
in the marshfilling ordinance. (Not that it is impossible to
imagine a society in which important groups of legislators un
derstood the marshfilling issue in class terms. But ours is not
at present such a society; and we are engaged in ascertaining

the purposes of existing legislatures.) 33 In contrast, it is also
easy to think of types of legislation in which distributive con
siderations are typically paramount in every legislator’s mind.
T ax legislation falls into this category, which is probably one
powerful reason that the Scientific judge will not press the
compensation question too fiercely in connection with legisla
tion taking that form.34 And there are doubtless many hard
cases, in which the standard intractable difficulties inherent in
the ascertainment of legislative purpose will arise to trouble
us. I hope, however, that none of my readers will be unduly
disturbed if I keep this particunlar skeleton safely cabined dur
ing the present voyage.35
So much for the agnostic; on to the judge who believes, for
one reason or another, that lie is better able to assess the over
all felicity of the income distribution than is the political pro
cess. Needless to say, this mode of judicial innovation need nol
"take~the extreme form in which the judge thinks himself en
titled to impose a fixed and unchanging pattern upon the
income shares possessed by one or another class in the popula
tion.3** Instead, the distributive judgment may take the form
of a principle rather than an ironclad rule,37 authorizing the
judge to give" ai least some, though not necessarily decisive,
weight to distributional factors in devising a doctrinal re-
sponse. Since we are still operating within a Utilitarian frame-
work, probably the most plausible principle would he
grounded on the familiar Haim that marginal ntiliryjdionlfl
generally be understood to decline with increasing income.38
Assuming this to be so, the reformist judge would skew his
doctrinal response in such a way as to advantage the poor,
except in those cases (whose frequency is a matter of wide
disagreement) in which the material losses suffered by the rich
would be so great as to offset the fact that their marginal
utility is lower than the poorer beneficiaries of the program. If
this approach were applied to compensation law, the result
would be a systematic tendency to favor the protection of
those interests typically held by poor people—residential
6o U T IL IT A R IA N A D J U D IC A T IO N
leases and the like— while systematically slighting those forms

of property— undeveloped real estate, perhaps— typically held
by rich people like the Marshans~ ~ ~
In weighing this approach, however, even a reformist judge
— committed to redistributionism in the name of the Constitu
tion— may well take pause at the prospect of Selecting the
compensation clause as a principal vehicle for his endeavors;
There is, I think, an almost inevitably conservative quality to
compensation litigation, however much a reformer may try to
write an opinion that avoids the symbolic affirmation of the
status quo ante involved in compensating property owners
aggrieved by the concededly legitimate exercise of public
power. Consequently, rather than seeking to fashion the com
pensation clause self-consciously to his purposes, it may better
serve the reformer’s larger program to limit drastically the
occasions upon which any kind ot compensation claim will be
vindicated— thereby indicating to the general population~that
undue reliance on the existing distribution of property rela
tionships is not a part of the long-run, utility-maximizing
solution to society’s welfare problem. This is, of course, the
most extreme reformist solution to the problem of interpreta
tion, and one which is not likely to be publicly embraced by
many judges who manage to gain appointment under either
Democratic or Republican administrations.
P r a g m a t ic I n t e r p r e t a t io n s of th e C lau se
We turn finally to social psychology. Under Proposition C,

our restrained judge indulged the principled assumption that
his fellow citizens were all good Utilitarians who would not
grieve much over their loss once they were convinced that the
redistribution was soundly justified by Utilitarian principles.
What are the consequences that follow if the judge takes it
upon himself to fashion doctrine in a pragmatic fashion, ex
plicitly taking into account the fact that substantial numbers
of his fellow citizens do not necessarily evaluate social conflict
in the way good Utilitarians should?
I shall argue that the doctrinal implications of such a move
J
U T IL IT A R IA N A D J U D IC A T IO N 6l
toward pragmatism would be significant indeed. One of the

major concerns we have traced in the Utilitarian approach is
the fear lest good citizens be demoralized when they see that
their rights are compromised in ways not clearly justified on
utility maximizing grounds. Yet this concern would seem
misplaced if the bulk of the citizenry were not good U tili
tarians, since it is difficult to believe that these non-Utilitarians
would be greatly demoralized upon learning that the state had
been untrue to its own invalid principles. Thus, as the number
of non-Utilitarians in the population increases, it seems likely
that pragmatic judges would take the Appeal to Citizen Dis
affection, and related doctrines, less seriously than before.
Indeed, the pragmatist might well be tempted to go further.
If a significant number of citizens held a particular non-
Utilitarian creed, it is likely they would feel particularly in
tense dissatisfaction on occasions when good Utilitarians
would feel no similar disaffection—and vice versa. Thus, the
pragmatic judge may be tempted to compensate citizens for
disaffections they ought not to feel if they had been good
Utilitarians, so long as the costs of doing so were not greater
than the disutility saved. Imagine, for example, that a large
fundamentalist sect, which rejected Utilitarianism as evil,
would become exceedingly disaffected if church property were
subjected to restrictive regulations, however justified this
would be on other felicific grounds. If disaffection would be
reduced by compensation, the pragmatic judge might well be
tempted to require payment even in circumstances in which
it would otherwise be unjustified. Or, to take a case that is
central, imagine that a large group of people committed the
error that separates untrained laymen from Scientific lawyers
and mistakenly thought they owned things rather than mere
bundles of rights. If this group became especially disaffected
when their claims of ownership were undercut by state regula
tion, the pragmatic judge might be sympathetic to their com
plaint, even though compensation would not be justified
under any of the other rubrics of Utilitarian doctrine.
It would seem, however, that even a judge committed to
other modes of innovative analysis would be mindful of the

deep institutional difficulties involved in constitutionally re
quiring compensation to reduce forms of disaffection felt only
by those holding anti-Utilitarian views. After all, the legisla
ture has, by hypothesis, already considered whether overall
utility will be served by granting compensation for the affront
to anti-Utilitarian sensibilities. By deciding against payment,
it may have found the special pain suffered by anti-Utilitarians
outweighed by the pain of good Utilitarians who would be
distressed at the prospect of the Marshans obtaining money
simply because they (or others) have failed to think about the
issue in a way that clearly revealed the overall balance of
social utility. Moreover, quite apart from the affront to good
Utilitarians, the legislature could well conclude that denying
compensation would serve therapeutic purposes, inducing the
anti-Utilitarians to reconsider the character of beliefs which,
by hypothesis, do not serve the general felicific good. Finally,
the legislature may have reasoned that the legal recognition of
a right to be compensated on grounds that are proper only on
one or another non-Utilitarian ideology would, on a symbolic
level, be generally interpreted as a declaration that U tili
tarianism was no longer the Comprehensive View that gov
erned the adjustment of legal relations in a good society.
This enumeration of grounds for restraint should suffice to
chill even an ardent innovative heart— so long as it beats
within the breast of a judge who wholeheartedly approaches
the task of adjudication as a Scientific Policymaker committed
to the Utilitarian Comprehensive View. T o put the institu
tional point broadly, if politicians are good at anything, they
are good at tempering the rigors of the prevailing Compre
hensive View so as to accommodate the hurt feelings of those
who faiFTor refuse) to think like Scientific Utilitarians when
approaching the business of resolving social conflict. And if
even politicians do not find the claims of pragmatism sufficient
to outweigh the demands of principle, why should judges be
so inclined? Removed as they are from day-to-day politics,
surely they are in a poor position to introduce pragmatic fac
tors into the case when the politicians themselves have seen
no need to do so.
This is not to say, however, that judges should never con
sider pragmatic arguments relevant in constitutional adjudica
tion. Often enough, the legislature itself will pass a statute
that cannot be justified on grounds of Utilitarian principle
but must be based entirely on pragmatic considerations. And
in such a case, courts may well have to judge whether the
pragmatic arguments are sufficiently weighty to warrant up
holding the unprincipled action. Consider, for example, the
problem that would arise if the legislature pragmatically
granted payment to the Marshans even though this could not
be justified on principled utility-maximizing grounds. If this
decision is challenged in court (by a taxpayer, let us say) the
relevance of pragmatic argument to the ultimate constitu
tional judgment is far easier to appreciate. Since the legislation
cannot by hypothesis be justified by an appeal to the utility-
maximizing principle, the decisive issue would be whether
the court should defer to the legislature’s decision that prag
matic factors were sufficiently persuasive to uphold the grant
of compensation anyway. And with this the issue, it is easy to
imagine an activist judge inquiring quite closely into the
validity of the legislature’s pragmatic judgment before he
would assent to its constitutionality.
Nonetheless, this more appropriate kind of pragmatic in
quiry need not detain us here. For we are not concerned, in
this book at least, with the interesting range of issues that are
presented by a wrongful legislative grant of compensation.
Instead, we mean only to explore the existing body of consti
tutional compensation doctrine, which concerns itself exclu
sively with the wrongful legislative denial of payment. Given
this focus, judges will only have occasion to consider pragmatic
arguments that the political branches have already found un
persuasive. It follows that a judge who is willing to grant even
the most limited deference to political institutions will find
pragmatism a peculiarly uncongenial virtue in his effort to

understand just compensation law from a Utilitarian point of
view.
A U t il it a r ia n V ie w of E x ist in g D o c tr in e
We are now in a position to describe the basic legal trends

that would be discernible in a regime in which judges under-
stood themselves as Scientific Policymakers committed to the
implementation of a Utilitarian Comprehensive View. Eschew
ing all talk about the intrinsic rights of a property owner, the
courts would self-consciously explore the “ real issue/' under-
stood as the identification of the social group which can bear
the burden entailed^bv the new legislative decision with the
smallest loss in overall utility. JudiciaHdiscussion oT the ease
hT Insurance, the costs of disaffection, and the costs of settle
ment would abound. Similarly, the degree to which one or
another form of administrative agency could abuse the Utilitar
ian calculus would be a matter earnestly considered, especially
by activists, as would the relationship of just compensation
law to the overall distribution of property rights. In contrast,
even those who were generally innovative would be quite
wary about rewarding those who suffer from forms of disaffec
tion that would not be indulged by good Scientific Utilitarians;
more particularly, there would be little judicial inclination to
second-guess a legislative decision to deny compensation to
those benighted souls who insist on payment simply because
they thought they “ owned” the thing subjected to one or
another form of regulation or control.
Having attempted a thumbnail sketch of the plausible
modalities of utilitarian doctrine, it is time to recall the ulti
mate objectives of the exercise. The first of these has, I hope,
already been accomplished. My aim has been to establish Sci
entific Utilitarianism as a cultural reality of prime importance
in American law today. I have sought to convince you by pro
viding a concrete example of the Scientific Utilitarian’s
method in action— from a statement of the substantive prob
lem, to a specification of judicial role, to the derivation of
basic doctrinal solutions. By examining, perhaps too labori

ously, each piece of the methodological puzzle, my intention
was not to shock, or even so much as ruffle, the professional
sensibilities of my lawyer-readers, but merely to organize and
clarify kinds of arguments with whose general character they
were already perfectly familiar. For only in this way is it possi
ble to establish Scientific Utilitarianism as a conventional
method of modern legal argument which may he used as a
matter of course by well-trained professionals rather than as an
interesting rite practiced in some exotic legal culture. Simi
larly, now that each piece of the puzzle is in place, the larger
pattern revealed should not seem startling, especially to those
who are acquainted with the evolving pattern ofd o ctrin al
discussion in a wide range of legal areas, from common law
subjects, like torts 39 and property,40~to^tlTîbre_frKJderh fields
of antitrust,41 taxation,42 and industrial regulation.46
But I do not wish to leave the case for the legal relevance
of Scientific Utilitarianism entirely at the mercy of my readers’
lawyerly intuitions. There are somewhat harder facts that
also make the point in the context of our concrete constitu
tional problem. It is a fact that Michelman and Sax have both
written important commentaries from a Scientific Utilitarian’s
point of view. It is also a fact that these commentaries have
spawned others,44 and are perceived as a beacon of light in an
o_therwise desperate darkness. Not surprisingly, these academic
writings are already being considered seriously by courts as
I they struggle with the legal consequences of the environmental
revolution.45 And there is every reason to think that judicial
reliance on academic doctrine will increase as the legislative
challenge to traditional private property rights increases in
. its breadth and intensity.46
Yet, in saying all this, I mean only to mark the path toward
* the second main objective motivating our search in the
j labyrinth. For my aim in developing the Utilitarian Policy-
! maker’s approach to the compensation clause is hardly to
I convince anyone that it represents the only path to Legal
I Truth that may be traveled by a competent lawyer of the
present day. While Michelman and Sax have prepared the

way for a powerful formulation of legal doctrine, it does not
follow that the present corps of judges have already taken up
the banner of Scientific Utilitarianism as their own. Indeed,
my main aim is to convince you of a very different truth.
While Scientific Policymaking is undoubtedly the most dy-
namic tendency in the law today, it has not yet transformed
all legal doctrine in its own image. Though signs of dis
content are visible everywhere, I intend to argue that compen
sation law has yet to make a decisive break with deeply en
trenched Observing ways. Indeed, it is this fact which makes
the conflict between Ordinary Observing and Scientific Policy
making a central professional problem for the present gen
eration.
Now, in the second half of the book, I shall try to establish
this claim about existing law in a systematic way.47 It is
possible, however, to gain a good deal of insight simply by
comparing the conventional treatment of a standard case with
the analysis suggested by the present chapter. Consider, then,
the way a rnnventipna 1 jndgpjynnld appraise the Marshans’
law suit. By ^conventional judgfPT mean someone who is
content to groundTTTs decisionôn the bedrock of conventional
legal wisdom,48 without pausing to inspect the signs of doc
trinal erosion that mar the landscape. For such a judge the
{first^ relevarrrjjom ^ is that the government has in no way de
nied ffitT Marshans7 title to their property or taken possession
of ThTiFland.4gT lavin g satisfied himself that there is no taking
so far as title or possession is concerned, the judge woulcTnexT
turn tn ronsidey the eYteni-tn whirh-the land’s market value
had diminished as a result of the regulation: if the property
had been rendered virtually worthless, the judge wouHTat the
very least, profess concern; 50 but if the price remainedTon-
sideiablerhe~would tolerate a very appreciable drop in market
value— liV*> pi’gMy-perrem Inss^snffex^d_by_the Marshans—
w ithout upsetting the statute.51 Even if the land’s value had
plummeted to the desolate region near absolute zero, how7
ever, the Marshans’ success would not be at all certain. For
their claim will then bectested one finaltime^when the judge

undertakes to determine whether marsh-filling constitutes a
“ noxious Tise” or whether, instead, such a use is sufficiently
innocent as to justify compensation.52 Typically, this final de
cision will be rendered without any analysis whatever^ and
when something is attempted it will be so obscure as to quite
baffle the Scientific spirit.53 Nevertheless, with the pronounce
ment on the noxious or innocent character of the use, the
analysis will come to an end. While the chances of the
Marshans clearing this final hurdle are not bad,54 it is very
likely that they will find themselves disqualified from recovery
at an earlier stage, since their land remains quite valuable
even after the regulation has been put into force.55
Putting the likely outcome to one side for a moment, I think
it fair to say that this very common form of analysis would
deeply distress the Scientific Utilitarian. It is not so much
that the three-stage approach— title or possession; diminution
of value; noxious or innocent use— is so very simple-minded.
Indeed, simplicity is a great virtue for the Scientific mind. It
is rather that the categories have so little to do with the “ real
issues” as a Utilitarian would understand them.56 Considering,
first, the Marshans’ Appeal to Citizen Disaffection, a good
Utilitarian judge would doubtless wish to understand the
extent to which the marshland statute could be supported by
sound felicific calculation. If, as will often be the case, he
learns that the ecological regulation is based upon the flimsiest
technical analysis,57 this should count as a reason for giving
considerable wreight to the disaffection suffered by the Marshans.
For it should be recalled that these property owners will, as
good citizens, suffer their loss without a sense of grievance
only if they have reason to believe that the new regulation is
in fact justified by a net increase in the general utility. T u rn
ing next to general uncertainty, the Marshan’s case would seem
less compelling: while it is true that an insurance market
against anti-fill regulations does not exist, land speculation is
an activity that generally attracts risk-taking types; and the
risk of costly ecological regulation is one of which any sensible
speculator will be cognizant at the time he is considering the

wisdom of investment.58 Turning to more innovative lines of
inquiry, the activist judge will most likely give little weight
to the “ equal protection" dimension of takings law— at least
if the ordinance applies to all undeveloped marshland within
the jurisdiction.59 In contrast, he would give far more weight
to the kind of governmental agency which promulgated the
ordinance. If, for example, the lawmaker were a state park
agency entitled to impose special land-use regulations upon
surrounding land-owners,60 the court could well express fears
of institutional self-aggrandizement that Sax seeks to capture
in his entrepreneur/mediator distinction; similar fears could
plausibly be expressed if the lawmaker were the federal En
vironmental Protection Agency or the Army Corps of En
gineers. Finally, depending upon his larger distributional
views, the reformist judge may wish to weigh the interests of
the typically rich land-speculator as less significant than those
of the typically poorer Earthlings whose interests in good
water and flood control the ordinance is intended to assure; 61
or, more dramatically, the judge’s convictions as to the larger
injustice of the distribution may be of such a character that he
will wish to limit the class of successful plaintiffs drastically,
reserving compensation only to those whose interests seem very
compelling when measured by the other terms in the judicial
calculus.
Having considered those factors in the preceding enumera
tion he believes to be consistent with his judicial role, the
competent Utilitarian judge will finally turn to the costs of
processing compensation claims from those who stand in
situations similar to the Marshans.62 While the expected settle
ment costs would not be trivial, it seems fair to say that they
would not bulk so large as to preclude all thought of an
affirmative response, especially if the Appeal to Citizen Dis
affection and the Appeal to Institutional Self-Aggrandizement
were found to have considerable weight. In short, what to the
conventional judge seemed a rather easy case would appear
quite difficult to many (if not all) of the judges who took a
view of law that was both Scientific and Utilitarian.
The most important point to recognize> however, is not the

possible difference in outcome but the extraordinary difference
in the kind of analysis that would be attempted by the U tili
tarian judge as he sought to devise the appropriate legal
response. This is not to assert that the conventional categories
are entirely devoid of Utilitarian sense. For example, as
Professor Michelman has suggested, the importance given to
title and possession in the conventional law can be understood
to reflect a Utilitarian concern with isolating situations in
which settlement costs will not be prohibitively high.63 None
theless, even after a good faith effort is made to emphasize the
Utilitarian aspect of present doctrine,64 it would seem that
over the centuries judges have managed to capture only a few
stray elements of the full Utilitarian calculus within their con
ceptual net. In short, if it is appropriate to view the problem
of just compensation from a Scientific Utilitarian point of
view, it would seem that the law requires a rather fundamental
overhaul and not merely a bit of tinkering here and there.
The conceptual redesign would not be so revolutionary, how
ever, as to be beyond the traditional capacity of courts to
accomplish. The basic concepts— the Appeal to General Uncer
tainty, to Citizen Disaffection, to Institutional Self-Aggrandize
ment, to the “ Equal Protection” dimension, and so forth—
seem neither peculiarly recondite nor foreign to the central
concerns of our legal system. I have little doubt that the basic
lines of the doctrinal reorientation could be effected by two
or three good opinions from the Supreme Court— though the
work of elaboration would, of course, take a couple of gener
ations.
Moving from method to substance, the likely—if not cer
tain 65—outcome of such a juridical reorientation would be a
very considerable expansion in the scope of constitutionally
mandated compensation practices, as our consideration of the
Marshans’ case itself suggests. It should be clear, moreover,
that we are dealing here with a doctrinal pattern that has a
I far broader range of application than cases having to do with
j the environment or any other single substantive issue, how
ever important it may be. T o choose but a single example,
7° U T IL IT A R IA N A D J U D IC A T IO N
the recipients of social security, welfare, and other forms of

governmental largesse would benefit mightily if compensation
law concerned itself less with questions of title and more with
uncertainty, disaffection, and equal protection.66 This is not
to say that even a Utilitarian court bent upon expanding the
range of the clause in many directions would never feel called
upon to cut back on the protection offered under the older
doctrine. Once again, the principal, if not the only, problem
would be raised by the present per se rule insisting upon
compensation when the claimant is deprived of title or posses
sion of the thing in dispute. At a certain point in the judicial
evolution of the new Utilitarian doctrine, it would be natural
to consider whether this rigid rule is still justified within the
context of a more supple and discriminating system. Such a
question remains for the next generation, however, provided
the present one takes the course marked out here.
And it is this question which is of central concern to us.
Not that I wish to present an advocate’s brief on behalf of
Utility in particular or Scientific Policymaking in general.
Instead, our intention here is to attempt a relatively dispas
sionate canvass of the basic options that the present legal cul
ture permits the profession to take seriously. While Scientific
Utilitarianism is one such option, it is not the only one. And
so we shall in succeeding chapters consider two other per
spectives on legal analysis that, I think, permit one to envision
plausible alternative courses for future doctrinal development.
Under the first of these scenarios, “ Kantian” judges are im
agined to accept the basic premises of Scientific Policymaking
but reject the Utilitarian’s insistence that all law be fashioned
to maximize Social Utility. Under the second scenario, judges
are understood to reject the propriety of Scientific Policy
making as such, and to view the compensation clause from the
radically different perspective of the Ordinary Observer. On,
then, to the Kantian judge.
4 Kantian Adjudication
J u d ic ia l R e s t r a in t
After a generation and more of near silence, professional phi

losophy has come alive with political theory. While the new
theorists make atonal music if they are heard together, it is
nevertheless possible to detect a common theme—or perhaps
anti-theme— which is highly relevant to our purposes. Who
ever one reads— be it Rawls or Nozick, Wolff or Walzer, Freed
or Dworkin 1— there seems a remarkable agreement that U tili
tarianism is deeply misconceived.2 What, is more, this other
wise diverse group has a common understanding of the
principal cause of the Benthamite doctrine’s failure. U tili
tarianism, it is said, fails to take individualism seriously when
it insists that the sum of social satisfactions be maximized re-
gardlessôf its distribution among persons. In one way or
another,^the TTTtTCS~of Utilitarianism insist that individuals
are entitled to certain rights simply because they are auton
omous beings worthy of respect—rights which cannot be over7
ridden- simply Hby an appeaTTo general Utility. It is at this
point that the common theme transforms itself into a modern
atonal chorus, as each writer attempts to state affirmatively the
concept of social order that in his view best captures the
proper notion of autonomy and respect for the rights of in
dividual persons. When approached at this level, the writers
offer a wide range of choice, from anarchy3 to democratic
socialism 4 with suitable intermediate positions available for
the fencesitters. For present purposes, however, I think it more
appropriate to emphasize the common critique of Utilitarian
ism rather than the diversity of response that has followed
upon the general recognition that Bentham is dead.5
With some hesitation, I shall associate this developing line
of non-Utilitarian political thought with the name of Im-
71
72 K A N T IA N A D J U D IC A T IO N
manuel Kant. This has the advantage of suggesting the possi

bility that there may be more at stake here than a few books
written by some clever men who have captured the public’s ear
for a passing moment. It has the disadvantage, however, of
risking a misrepresentation of the chapter’s basic ambition.
For what follows is most definitely not an exegetical attempt
to apply Kant’s particular philosophy to the takings problem.
As constitutional lawyers, we are no more interested in the
details of Kant’s particular theories in this chapter than we
were concerned with an interpretation of Bentham’s writings
in the last. Instead, Kant serves merely as a symbol of a fun
damental principle that attains one of its deepest statements
in the categorical imperative: the id eath at Policymakers are
not to conceive of their fellow citizens as merely means to the
larger end of maximizing social utility, but are instead to
treat them as ends_in themselves.6 Wnile the^xagueness of this
Principle of Exploitation is of course notorious. I shall argue
that, within the domain of just compensation law, it will serve
with some success as the source of judicially manageable
standards.
T o see this, consider the way in which a restrained Kantian
judge would deal with a legislative and administrative process
that operated in a way a Utilitarian would consider well-
ordered. T hat is, imagine the judge could properly assume
that the legislative decision taking some property rights from
the Marshans’ bundle was one that could generally be pre
sumed to be well-grounded in a sound felicific calculus. Even
after the judge had been assured, for example, that the
Marshans had lost a hundred thousand utiles 7 while the rest
of society had gained a million, there would remain an issue
open for him that would not at all trouble his utilitarian
counterpart. For the judge, as a Kantian, is not merely inter
ested in maximizing social utility; he is primarily concerned
with assuring a social order in which no individual is used
merely as a means to the satisfaction of another’s ends.8 Yet is
this not precisely the plight of the Marshans in our hypo
thetical situation? Are they not being called upon to sacrifice
K A N T IA N A D J U D IC A T IO N 73
some of their rights simply because others would find it terri

bly convenient for them to do so? If this is not serving merely
as a means for the satisfaction of another’s ends, it is hard
to imagine any legislative action which would fall under this
description.
Indeed, the mere fact that the Earthlings, as in the case
hypothesized, have profited enormously by the legislative reas
signment of property rights only makes the Kantian’s case for
compensation seem more, not less, compelling. For in such a
case, it may be quite possible 9 to force the Earthlings to share
some of their gains with the Marshans so that nobody is made
any worse off at Tim e Three than at Tim e One. By placing*
the losers in at least as good a position as they were at T im e^
One, it has been made clear that the Marshans are not con- j
ceived merely as means to the greater satisfaction of social 1
utility; instead they are being treated as ends in themselves ;
who need not be required to sacrifice their interests merely to '
satisfy others’ convenience. J
The contrast with the restrained Utilitarian judge on this
point could not be more fundamental. As we have seen, the
restrained Utilitarian would give little or no weight to the
Appeal to Citizen Disaffection in cases like the present one,
in which the societal benefit-cost ratio is overwhelmingly
favorable.10 Yet it is precisely here that the Kantian judge
would have relatively little difficulty in requiring the state to
force the community at large to share some of the gains gener
ated by the property redistribution with the hapless Marshans.
But we can be more precise than this. The easy case for the
Kantian judge is one in which the costs of administering a
compensation practice (process costs) are not so large that
they eat up the entire net benefit generated by the redistribu
tion. For example, if the Marshans’ loss were placed at a
hundred thousand dollars, while the Earthlings gained a
million, compensation would be required if process costs
amounted to less than $900,000. For in these easy cases it would
be possible to make all other members of society better off
without making the Marshans worse off, and hence to remain
unambiguously consistent with the Kantian dictum.11 Or to

put the point in terms of a formula, compensation is required
when P < B — C, where P is process cost, B is project benefit,
and C is other project costs.12
In contrast, this formula would seem far too generous to
the Marshans in a restrained Utilitarian jurisprudence. The
judge here would be willing to tolerate high process costs if
and only if the costs of failing to compensate, borne princi
pally by the Marshans, would be even higher. Or, in terms of
the formula developed previously, compensation would be due
only if P < U -f D, where U is uncertainty cost and D the
costs of citizen disaffection.13 Thus, in the case hypothesized,
is would not be enough for the Utilitarian judge to learn that
process costs (P) were less than the net benefits generated by
the landfill statute (B — C). For it remains quite possible that
U + D is less than P. And if this turns out to be the case,
compensation will be refused despite the fact that the
Marshans have been made worse off as a result of a social de
cision requiring them to sacrifice their preexisting rights so as
to further others’ utility. Or, to put the point in terms of
plausible judicial guidelines, the restrained Utilitarian judge
will be especially predisposed toward compensation if he ob
served that process costs were particularly low; for the Kantian,
however, the easy case would be one in which process costs
were not so high as to make it impossible to compensate the
Marshans without making the Earthlings worse off than they
were at Tim e One.
This difference in the decisive formula merely dramatizes
the deeper philosophical difference that we have already noted:
the Utilitarian counts the costs suffered by uncompensated
Marshans, and others threatened by similar redistributions, as
if they were no different from any other costs suffered by any
one else in society; hence he is willing to take actions to re
duce these costs only to the extent that doing so will not
impose greater costs on others. In contrast, the restrained
Kantian judge views the Marshans as having a special claim on
the state’s concern by virtue of its prior decision marking them

out as appropriate means for the greater utility of others.
From this point of view, the state has a special obligation to
assure the Marshans that they are not viewed as means but as
ends; and the fulfillment of this obligation takes precedence
over others’ desire to keep as much as possible of the gains
generated by the redistribution of property rights.14
It is not every case, however, that can be handled in such a
summary fashion by the Kantian judge. Up to the present
point we have been dealing with those cases in which process
costs do not exceed the net benefits generated by the property
reassignment. It should be plain, however, that many cases
will arise where process costs w ill exceed net benefits and we
have yet to consider the way in which the Kantian would re
solve these cases.
So far as the restrained Utilitarian is concerned, these cases
raise no important analytical problems of any novelty. Here,
as elsewhere, compensation will be granted if, and only if, the
sum of uncertainty and disaffection costs is higher than process
costs. So far as the Kantian is concerned, however, these cases
present a new and more difficult problem. Because of rela
tively high process costs it is impossible for the judge to re
quire the beneficiaries of the land-filling ordinance to share
some of the gains of the property reassignment with the Mar
shans so that nobody will be worse off at Tim e Three than
they were at Tim e One. For if others are required to pay both
the costs of compensation and the costs of process, they will
find themselves worse off than they were at Tim e One; while,
if the Marshans remain uncompensated, they obviously will
be worse off at Tim e Three than they were previously. Hence,
in this case, the Kantian’s simple Principle of Exploitation
seems incapable of generating a unique solution; 15 either one
side or the other will be called upon to sacrifice its interests as
a result of legal change.16 Since the principle does not permit
the Kantian judge to say that one outcome is superior to the
other, it follows that, as a restrained judge, he will defer to
the legislative judgment on the matter. T o sum up, the re

strained Kantian’s approach to compensation will be in some
respects more, and in some respects less, demanding than that
of his Utilitarian counterpart. When there is reason to believe
that P < B — C, the Kantian will always insist upon compen
sation while the Utilitarian will only sometimes do so; in
contrast, when P > B — C, the Kantian will never insist upon
compensation, while the Utilitarian sometimes will.
There is, however, nothing writ in the stars which decrees
that a judge select a single objective to which he expresses
exclusive fidelity.17 Indeed, if the question were addressed at
this level, I should imagine that the typical contemporary judge
would report that he was concerned both with maximizing
overall utility and with the elimination of legal structures in
which one citizen is treated as merely a means for the gratifi
cation of another. Given these dual concerns, he could well
prefer an approach to takings law which borrowed elements
from both of our pure models. Here the judge would first
apply the Kantian test to determine whether it was possible to
transform the situation into one in which nobody was made
worse off by the property reassignment occurring at Tim e
Two. If, however, such a solution was made impossible by
virtue of relatively high process costs, the restrained judge
would put on his Utilitarian spectacles and consider whether
the costs of disaffection and uncertainty were greater than the
process costs. Put more generally, the eclectic Kantian-
Utilitarian may invoke a lexicographic approach of the sort
increasingly familiar in talk about social evaluation. While
giving first priority to his Kantian principle of non-exploitation
where it can be unambiguously applied, he will be willing to
invoke Utilitarian criteria where his first priority principle
does not lead to a unique outcome.18 Although I myself sus
pect that this eclectic Kantian-Utilitarian approach will appeal
to many,19 my discussion will continue on the supposition that
our Kantian judge is a purist, since it seems easy enough for
the reader to combine the two approaches on his own if he so
chooses.
T he K a n t ia n T e n d e n c y to w ard A c t iv ism
In order to highlight the contrast between Kantian and

Utilitarian approaches to compensation law, the previous dis
cussion considered the way a restrained Kantian judge would
evaluate legislation generated by a political process which
the Utilitarian would deem to be “ well-ordered,” in the sense
we have defined the term. While this comparison permitted
us to isolate some basic differences, it may be properly sug
gested that this clarification was purchased at the cost of
playing fast and loose with the concept of judicial restraint,
at least as we have defined it. For recall that, within our frame
work, the restrained judge was defined as an official who acts
as if the social and political universe generally conforms to
the Comprehensive View that he thinks properly expresses the
objectives of the legal system within which he operates.20
Thus, it would appear that if our Kantian judge truly con
formed to the definition of judicial restraint, he would not
address legislation as if it were the product of a well-ordered
Utilitarian process, but as if it emerged from a well-ordered
Kantian process in which the issue of fairness, as well as
utility, had already been resolved by legislators in a fashion
that was generally— though not unfailingly—consistent with
the preferred Comprehensive View.
Taken by itself, this more careful specification of the notion
of Kantian restraint does not require a complicated reformula
tion of the analysis. Our restrained judge will still inquire
whether it is possible to compensate the Marshans at Tim e
Three without generating process costs that will make the
Earthlings worse off than they were at Tim e One— only now
he will give the legislature the benefit of the doubt in cases
open to reasonable dispute. If we reflect more broadly upon
the restrained Kantian’s notion of the political process, how
ever, it is possible to add a second contrast to the one already
drawn between the Utilitarian and Kantian varieties of re
straint. I should like to suggest that not only will the re
strained Kantian’s decisive doctrinal formula differ from his

Utilitarian counterpart but that the entire idea of judicial
deference will seem less plausible to the Kantian than it will
to the Utilitarian. In short, a Kantian judge will, ceteris
paribus, tend to be more activist than he would have been if
he had accepted a Utilitarian Comprehensive View.
T o see why, consider the stringent demands the Kantian
places upon a political process before it will qualify as “ well-
ordered” and so entitled to deference. For him, it is not
enough to assert that the American political system provides a
good framework for the collective search for the largest possi
ble utility pie. Instead, he will insist that individual rights be
protected even when this inconveniences large groups in the
population. Hence, the Kantian will remain unimpressed
when he learns that the American political structure some
times provides even rather small groups with ample means to
protect their vital interests against a more numerous coalition
whose goals are less intensely held. While a Utilitarian may be
quite pleased with the intricate trade-offs between numbers
and intensity sometimes achieved in American politics, the
Kantian will demand far more. While protecting minorities
against apathetic majorities is fine as far as it goes, the Kantian
will insist that a “well-ordered” political system must also gen
erally assure the protection of individual rights even when
large coalitions do intensely wish to abridge them. Since it
is obviously more difficult to assert that American political
reality satisfies this stringent condition, it follows that
Kantians will have a harder time finding that American poli
tics is well-ordered than will their Utilitarian brethren.
We have, then, reached an important, albeit intermediary,
stage in the argument. For if you are convinced that Kantians
are less likely to believe that American politics is in fact well
ordered, only one final problem must be resolved before one
may permissibly conclude that Kantians will, ceteris paribus,
find deference less attractive as a judicial attitude than will
their Utilitarian counterparts. The nature of the difficulty may
be perceived once one recalls that to qualify as deferential, it
is not necessary for a judge to assert that the political process

is in fact well-ordered, but only to affirm the weaker proposi
tion that judges are bound by their office to view the political
branches as if they conformed to the well-ordered ideal. In
deed, I have already emphasized that many advocates of defer
ence are quite willing to concede the counter-factual character
of their role premise. Nonetheless, this important point need
not stand in the way of the more modest suggestion I am mak
ing here. For I do not argue that deference is an impossible
(or even a very difficult) position for the Kantian judge to
accept. I only assert that the burden of persuasion seems rela
tively heavier for the Kantian than the Utilitarian. And to
make this claim all I need argue is that, other things being
equal, a judge will prefer to define his role in a way that does
not require him to assume the truth of a proposition which is
almost certainly false. So long as the propriety of this rather
inoffensive judicial preference for truth is conceded, the
Kantian tendency toward activism may be readily established.
This is not to say that American politics should be considered
“ well-ordered” even when judged by the Utilitarian’s more
modest test, only to say that the claim made by the deferential
Utilitarian is less obviously false than the one that must be
advanced by his deferential Kantian counterpart— placing a
weightier burden of justification upon the latter to defend the
propriety of his general judicial stance.21
Having located the general place of activism in Kantian
jurisprudence, it remains to consider the particular forms of
intervention that will commend themselves to those who find
that a strict rule of deference cannot be justified. Here, I think,
there is a great deal of similarity between the Kantian and
Utilitarian doctrinal conclusions. Thus, just as Sax was con
cerned to check institutional self-aggrandizement at the ex
pense of good cost-benefit analysis, so too would the activist
Kantian be concerned lest a particular interest group, in con
trol of a self-aggrandizing bureaucracy, use its power to exploit
others’ rights as a means to their own ends.22 Similarly, the
Kantian would be concerned to develop the “ equal protec
8o K A N T IA N A D J U D IC A T IO N
tion” dimension of takings law to cushion the impact of official

decisions that mark out one property holder, rather than
another who seems similarly situated, to serve as the exclusive
means to a social end that benefits others.23
Yet, however much the Kantian may look to Sax for sug
gestive leads, the fact is that Sax quite explicitly sought only
to develop activist doctrine from a Utilitarian point of view.
It remains an open question, then, whether new and distinc
tive forms of intervention may be generated by scholars and
judges if they come to think of themselves self-consciously as
Scientific Kantians of the activist persuasion. Since Kantian
themes have only just begun to touch compensation law,24 it
seems especially wise here to refrain from mistaking our pres
ent ignorance for the final Scientific truth on the matter. This
said, it will not hurt to summarize our tentative conclusion:
while Kantians will find it easier to adopt an activist stance
than will Utilitarians, those who embrace activism will focus
their concerns on much the same issues as those marked out
by Utilitarian doctrine.
R e fo r m ism
Thus far, we have introduced only a single innovative vari

able into our model of judicial restraint. T o put the point in
pictures, we have been concerned up to the present only with
the shift from a purely restrained judge (Table 2) to one
whose general position is that a strict rule of deference cannot
be justified (Table 3).
T able 2
Proposition A 25 Conservative
Proposition B Deferential
Proposition C Principled
T able 3
Proposition A Conservative
Proposition B Activist
Proposition C Principled
K A N T IA N A D J U D IC A T IO N 8l
Yet even the most summary sketch must take a more compre
hensive view, and assess the extent to which all three role
variables interact to transform the shape of Kantian doctrine.
T o discharge this task, we next consider the conservative
dimension of the model: in which doctrinal directions will a
judge move once he challenges the restrained assumption up
holding the distribution of property rights at Tim e One?
In a general way, the options open to the reformist Kantian
parallel those that confront the Utilitarian judge.26 Thus, lie
may declare himself an agnostic and defer to the legislature
if he understands its enactment to be grounded on a belief
that the Marshans have—on Kantian principles— too large a
share of the pie. Or he may go further in his rejection of the
status quo and declare it justified for judges to impose their
larger conception of social justice on the political branches.
As in the case of the Utilitarian, this kind of innovation need
not take the form of imposing a complete or detailed distribu
tive blueprint upon society. Instead the judge may simply con
tent himself with selecting out certain salient, if limited, prin
ciples for testing the validity of the legislative judgment.
Unlike the Utilitarian, however, the Kantian judge has a
special problem in addressing the issue of social justice even
in limited terms. While the Utilitarian may take recourse to a
relatively well-developed theory dealing with distributive jus
tice fwhose problematic elements are at least understood, if
not resolved), the Kantian notoriously has had great difficulty
even defining the general way in which he would evaluate the
justice~of an overall distribution of property rights, as dis
tinguished from particular governmental actions burdening
some at the expense of others. From this point of view, the
publication of Rawls’s book on justice is a matter of some im
portance— for as Rawls himself recognizes, it may readily be
understood as an effort to reformulate Kantian concerns so
that they may be more readily applied to an evaluation of the
basic structure of society.27 This is not to say that a single book
can make for a constitutional revolution, especially one that
contains as many problematic elements as does Rawls’s con
struction. Nevertheless, a reformist Kantian may be expected
to take heart from Rawls’s effort as an indication of an in

creasing willingness among philosophers to do the hard con
ceptual work necessary before the vague Kantian notion can
be made a touchstone for comprehensive legal analysis. At
present, however, it seems fair to say that a Kantian theory
of distributive justice is even less well worked out, and less
widely held, than its Utilitarian counterpart; hence it would
appear that, ceteris paribus, a judge would have greater dif
ficulty pursuing this innovative line if he were a pure Kantian
than if he were a pure Utilitarian.28
This result contrasts sharply with the one reached only a
moment ago in our consideration of Kantian activism. There
we concluded that activism would seem more attractive to the
Kantian,29 while here reformism seems a relatively less attrac
tive option. These seemingly disparate conclusions may peace
fully coexist without internal contradiction because each de
pends upon a different factual claim that I have advanced
concerning the legal culture of the present day. Thus, the
relative strength of Kantian activism is based on my claim
that the generality of modern lawyers (a) will in fact have
little doubt that American politics falls far short of the
Kantian’s notion of a well-ordered process, and (b) will only
reluctantly assert that Kantian judges should base their role
on an assumption about political life that is not only false, but
obviously so. In contrast, the relative weakness of Kantian
reformism rests on my claim that the generality of lawyers are
(a) at present rather unfamiliar with Kantian arguments for re
distribution and so (b) will only reluctantly use such argu
ments to justify reformism as a matter of constitutional
principle.
It is, then, quite easy to resolve the apparent tension in
Kantian role theory— so long as one accepts the accuracy of
my factual assertions about the diverse dominant tendencies in
today’s legal culture. Apart from the pleasure of dissolving a
paradox, however, there is a larger lesson to be learned from
all this. And that is the importance of resolute sophistication
when dealing with role theory. It is simply not true, as is some-
KANTIAN ADJUDICATION 83
times hinted,30 that Kantian judges will systematically take in

dividual rights more seriously than will their Utilitarian col
leagues—at least if the willingness to extend constitutional
protection to individuals is taken as an adequate indicator of
seriousness. For as soon as the theory of judicial role is taken
explicitly into account, the picture that emerges is far more
complex than a simple slogan will allow—with Kantian judges
sometimes more, but sometimes less, innovative in their doc
trinal responses.
P r a g m a t ism
We turn, finally, to consider the extent to which a Kantian

innovator will reject principled adjudication on behalf of a
more pragmatic adaptation to the views of non-Kantians in the
community. It would appear here that a Kantian judge would
have even less reason to depart from principle than would
his Utilitarian counterpart. The easy case for the Kantian
would be one in which the Earthlings believed that they were
intrinsically superior to the Marshans and so became terribly
resentful upon learning that the Marshans were to be granted
compensation for their sacrifice. From a Kantian point of view,
it is precisely the law’s highest duty to deny that some citizens
exist for the mere convenience of others. Since such a denial
will inevitably anger those who declare themselves intrinsically
superior, deferring to their resentment is tantamount to aban
doning the ultimate aims of the legal system.
The harder case for the Kantian judge would arise if the
Marshans adopted a broader conception of the concept of
exploitation than the judge thought justified, and so were
terribly disaffected as a result of the judicial denial of compen
sation. While there is something more to be said for giving
weight to this kind of disaffection, it appears to me that the
grounds for judicial restraint—enumerated in our parallel
treatment of the activist Utilitarian 31— counsel that such fac
tors should be taken into account only on the rarest occasions.
84 KANTIAN ADJUDICATION
C o n clu sio n
In sketching both Utilitarian and Kantian approaches to the

compensation clause I do not wish to pretend to have done
more than I set out to accomplish. I have not tried to ex
plicate, let alone defend, the master concepts that lie at the
core of the different Comprehensive Views we have explored.
Thus, I have made no attempt to be precise about the variety
of conceptions of utility that may plausibly be invoked in
Utilitarian theories; nor have I considered the difficulties a
Utilitarian confronts as he attempts to sum up the utilities ex
perienced by different people at different times in order to
arrive at a social total.32 Similarly, I have dealt with the
Kantian notion of treating a person as an end rather than
merely as a means far too casually to satisfy myself, let alone
someone of a more exacting disposition. It should be recalled,
however, that we are not attempting an exercise in pure phi
losophy but are instead trying to illuminate the relationship
between general philosophical perspectives and particular legal
doctrine. If some clarity concerning this interrelationship can be
purchased only at the cost of some ambiguity as to the precise
contours of the basic philosophical concepts, it is a price worth
paying. Otherwise, we would be obliged to launch into a philo
sophical excursus which would rapidly overwhelm the pecu
liarly legal aspect of this inquiry. Moreover, in speaking of
Utilitarianism and Kantianism, I am not invoking concepts
that are utterly foreign to the legal culture. Those sympathetic
to the concerns expressed by talk of utility and/or exploitation
will not permit the admitted difficulties in interpreting the
master concepts to serve as an excuse for eliminating the use of
such terms from legal analysis. Instead, they will take the
hopeful view that the ambiguities revealed in legal analysis
will serve as a prod to the further development of the philo
sophical foundations of the Comprehensive View in question.
In contrast, those hostile to one or another view will doubtless
exploit their current conceptual imprecision as an important
technique by which to discredit the use of a particular mode
of Policymaking in legal analysis. The present essay, however,
does not seek to convince anyone to adopt one or another of
the Comprehensive Views under consideration but proceeds
on the premise that they are sufficiently attractive to be con
sidered seriously by anyone who wishes to analyze American
law in the spirit of a Scientific Policymaker.
So much for modesty. As an affirmative exercise in legal
scholarship I hope to have accomplished two things beyond
establishing that the two Comprehensive Views do have deter
minate implications in just compensation litigation which
depend in part upon the degree and kind of judicial innova
tion or restraint that is deemed appropriate. First, I have tried
to establish that it makes a difference which Comprehensive
View one adopts— that the two Policymaking forms differ from
one another in very important, it not earth-shattering, ways?3
If one had to focus on a single difference, 1 suppose the most
strikingTs the restrained Kantjan’s_insistence upon compensa
tion in all cases in which process costs are less than the net
benefits generated by the property redistribution. In this re:"
spect, the Kantian’s jurisprudence is far more powerful than is
the Utilitarian’s. I n other respects, however, the Utilitarian
will strike out more aggressively on behalf of compensation—
notably in those cases in which P > B — C. Finally, if the
judge is willing to mix a Kantian-Utilitarian brew, the result
ing compensation clause may be far stronger, or far weaker,
than either of the unadulterated products, depending once
again upon the varieties of innovation that the eclectic judge
is willing to admit into his conception of judicial propriety.
The second main point concerns the relationship between
Kantian Policymaking and the shape of existing legal doc
trine. Here, as with Utilitarianism, the important conclusion
is a negative one: Kantian Policymaking does not greatly il
luminate existing doctrine. Like their Utilitarian counterparts,
Kantian judges would be asking themselves different questions
from those implicit in the case law. A conscientious Kantian
could hardly stop his analysis of the Marshans’ case with the
86 KANTIAN ADJUDICATION
recognition that title and possession have not been impugned,

nor market value utterly destroyed. For him, at least one of the
critical issues lies elsewhere—whether the net benefits gener
ated by the redistribution are greater than the process costs.
Moreover, the innovative Kantian will, like his Utilitarian
counterpart, be concerned with the varieties of institutional
breakdown and distributive injustice that serve to set the stage
for the particular dispute in question. It would be more tire
some than instructive, however, to make these points in great
detail, since they parallel those presented in our earlier dis
cussion of the activist Utilitarian’s treatment of the Marshans’
claim. Similarly, it seems reasonable to expect that a Kantian
judiciary (like a Utilitarian one) would tend to expand very
considerably the contexts in which compensation would be
constitutionally compelled— though the conventional per se
rule, requiring compensation whenever the claimant was de
prived of title or ousted from possession, would undergo in
creasingly critical scrutiny as Kantian jurisprudence developed.
In short, even those who find Scientific Policymaking to be
an obviously desirable framework for the compensation law
of the future must recognize that neither Utilitarian nor
Kantian Comprehensive Views capture the animating prin
ciples of the law of the present. Several things could follow
from this insight. First, one may conclude that to make sense
of present doctrine one must adopt some third Comprehensive
View radically different from that espoused by a Utilitarian or
a Kantian. On its face, however, this seems a dubious under
taking, since I do not think it can be plausibly maintained
that there are other Comprehensive Views with sufficient cur
rency in American legal circles to make it reasonable to expect
that the judges have been drawing their basic concepts from
them. If, however, this first path seems unpromising, it is al
ways possible to draw a second conclusion from our investiga
tion and to adopt the legal nihilist position that the judges are
talking about things which in fact make no sense whatever.
This is of course a real possibility, and represents one’s ulti
mate fallback position. It is, moreover, a position full of con
sequence for the course of future doctrinal development. For

I take it as a desideratum of our constitutional law that its
structure be something more than a jumble of legal technical
ities, rooted in nothing remotely approximating basic prin
ciple. Thus, if the real choice for the future course of adjudi
cation is between a legalistic jumble or some form of Scientific
Policymaking, this would be the strongest kind of argument
for choosing Scientific Policymaking. From this standpoint,
the deep and unresolved question in interpreting the compen
sation clause is the proper identification of the Comprehensive
View— Utilitarian, Kantian, mixed Utilitarian-Kantian, or
something else entirely— that ought to be adopted as the key
to the interpretation of the ambiguous constitutional text. In
short, if the nihilist view were correct, the question would
not be whether the present ramshackle judicial structure is
worth saving—since it has no foundation, it should be aban
doned with all deliberate speed— but the precise character of
the blueprints which promise a habitable structure for the
future.
Unfortunately for those who require a clear sense of legal
direction, this nihilist view represents a fundamental mis
reading of the present state of the law. Rather than merely
expressing intellectual chaos, the present case law can be un
derstood as a coherent whole, so long as one is prepared to
think about law in a way that challenges the very premises
of Scientific Policymaking itself. This alternative form of legal
thought—which we hope to structure through the idea of the
Ordinary Observer— lacks the clarity, self-consciousness, and
dynamism of its rival. Nonetheless, it is a central legal reality
whose hold upon the legal mind is based upon centuries of
common law tradition. The profession is not, in short, obliged
to choose between Scientific Policymaking and simple chaos.
However we decide to view compensation law, it will be neces
sary to deny, as we affirm, a basic part of our present legal
culture.
5 Ordinary Adjudication
I ntro du ctio n
As we approach the task of rendering Ordinary Observing an

operational legal method within the normal repertoire of
practicing lawyers, it is wise to reflect on the analogous
problems faced in sketching the Scientific Policymaking side
of the present legal culture. T o establish Scientific Policy
making as a form of thought important to the contemporary
legal profession, it was not enough to offer an abstract defini
tion of its distinguishing characteristics. In addition, it was
necessary to show that the existing legal culture contained a
rich store of ideas that could be exploited by a judge who
chose to think like a Scientific Policymaker. T o be more pre
cise, we needed to establish (a) the existence of a form of
Scientific property talk that was very familiar in legal circles;
(b) the possibility of developing a plausible Scientific vocabu
lary dealing with the proprieties of judicial role which seemed
capable of expressing the professional concerns of constitu
tional law; and (c) the existence of normative theories—
Utilitarianism and Kantianism— that had a sufficient hold on
the present legal culture to be taken seriously as candidates for
the position of Comprehensive View in our existing legal
system. Without this attempt to clothe the Scientific Policy
maker with contemporary Scientific vocabularies and Compre
hensive Views, the notion of Scientific adjudication would
have remained a speculative fantasy of no interest to practic
ing constitutional lawyers.
Similarly, before we can make the view of the Ordinary
Observer professionally significant, we must move beyond
definition to the cultural realities that permit it to become an I
operational method of legal reasoning. In one respect at least,-
the task is precisely analogous to the one attempted on behalf;
88
ORDINARY ADJUDICATION 89
of Scientific Policymaking. Just like his counterpart, the

Ordinary Observer will require a theory of judicial role to
inform him of the extent to which he should restrain himself
and defer to the actions of others instead of innovatively em
ploying the analytic tools at his command. At this point, how
ever, the effort to render Ordinary adjudication a significant
legal reality must depart from the paths taken in the preceding
chapters. Given our definition of the Ordinary Observer, it
will not do to point to a technical language and a Compre
hensive View that will give our ideal type contemporary rele
vance. For it is precisely the definjng characteristic of our
model that he looks on legal language not as a set of technical
concepts but as a iorm ot ordinary language; and that he re
fuses to resolve legal disputes by invoking a Comprehensive
View, but instead selects the rule that seems best to support
dominant institutional expectations. Thus, to make out Or
dinary Observing as a plausible perspective from which to
interpret the compensation clause, it will be necessary to con
sider the basic premises informing its rejection of Scientific
Policymaking: Why would a good Ordinary Observer of
American society reject the Policymaker’s claim that proper
legal analysis should begin by positing a dominant Compre
hensive View for the legal system? How would an Ordinary
lawyer go about grounding legal concepts on the talk of un
trained laymen? How would an Observing judge go about
determining which expectations were “dominant” in society
and hence entitled to the support of the legal order?
My aim in raising these questions now is not, alas, to
answer them decisively. Indeed, even to attempt an authorita
tive answer would falsify the very picture of the present legal
culture that I wish to sketch. For my main thesis is that while
both Scientific Policymaking and Ordinary Observing seem
plausible to contemporary lawyers, neither seems sufficiently
convincing at present to permit the decisive rejection of the
other from the legitimate canon ol juridical argument.
Hence, it is the purpose of my general remarks to point to
those basic features of American social life which make Ordi
90 ORDINARY ADJUDICATION
nary Observing an attractive, yet a deeply problematic,

method of legal analysis.
Once we nave located the general method in the haze of
ultimate doubt which is our legal culture, the second half of
the chapter will try to demonstrate that the methods of
Ordinary Observing—whatever their ultimate validity— can in
fact focus a shaft of bright light upon the practical profes
sional problems posed by the compensation clause. This more
concrete analysis begins by showing how the structure of
Ordinary property-talk in modern America differs fundamen
tally from the Scientific concept familiar in the professional
talk of lawyers. It will then prove possible to move closer to
our goal by sketching the outlines of an Ordinary Observer’s
interpretation of the compensation clause, as well as a theory
of judicial restraint and innovation, that diverge quite pro
foundly from the understandings of the judge who thinks like
a Scientific Policymaker.
T he M odern A m e r ic a n M in d : I ts B a sic
L e g a l Str u ctu re
I shall begin by explaining why a professionally untrained

person’s understanding of his relationship to social institu
tions will diverge fundamentally from that adopted by the
Scientific Policymaker. T o do this, it is necessary to recall once
more the basic intellectual move that marked a person as a
Policymaker. T o qualify, one must learn to think of the legal
system as if it were organized around a self-consistent set of
abstract principles that comprise the system’s Comprehensive
View. It is central to my thesis that this kind of highly abstract
thinking does not spontaneously arise in the heads of all peo
ple everywhere. Indeed, as soon as it is recognized that this
form of thought must be learned before it can be assimilated,
it seems clear that the untrained layman in modern society
has neither the time, inclination, nor training to determine
for himself the extent to which the existing rules of the legal
system actually do make sense in terms of any determinate
Comprehensive View.1
Instead, the typical American understands his relation to the

legal system in terms that are very similar to those by which
he understands his relation to the economic system. As he
looks out at the marketplace, he observes frequent— and some
times considerable— fluctuations in the market prices of those
objects and opportunities that he wishes to acquire. The price
of gas is a quarter today, a dollar tomorrow; the price of
bubble-gum is a nickel today, six cents tomorrow; all as a
result of forces beyond the individual’s control. And pre
cisely because market prices are beyond his control, the lay
man generally does not have any reason to spend much time
thinking about whether the price-setting mechanism, consid
ered as a whole, makes sense in terms of a self-consistent set of
principles called economic theory. T o master such theory as
we have is hard professional work—and, unless one intends
to become a professional economist, the practical utility of the
training will be dwarfed by its very considerable costs in
terms of time, money, and lost opportunity. It is possible, of
course, that a layman may occasionally encounter a problem
that, even to him, seems to suggest the practical utility of
economic science— perhaps he is a businessman for whom it
is worth a great deal to know the future course of oil prices.
Even here, however, it will probably not pay the layman to
devote the time and effort necessary to master economic theory
himself. Instead, if he is a man of great faith, he will pay
someone who claims to be a specialist to make the projections
for him. Although the specialist will, of course, claim that the
price system can be understood in terms of a set of self-
consistent principles, the layman will still be quite unable to
undertake an independent evaluation of this claim. Indeed,
even after the Scientist’s predictions of the future are tested by
time, the layman will still be incapable of evaluating the
Scientist’s claim. If the economist’s prediction turns out right,
it could have been luck and common sense that turned the
trick; if it is wrong, whoever said that contemporary science
was perfect?
Now, I should like to argue that the layman has an analo
9* ORDINARY ADJUDICATION
gous relationship to the legal system. J ust as market prices

constantly change for reasons over which the typical citizen
has no control, so too legal rules are constantly changing in
\yays that he is powerless to guide. Today he can buy leaded
gasoline; tomorrow he cannot; today he can buy sugar-rich
bubble-gum; tomorrow, only sugar-free. T o use the language
of neoclassical economists, j ust as the average consumer is a
“ price-taker,” so too the average citizen is a “ law-taker.” Yet,
as in the case of price changes, the typical layman generally
has better ways to spend his time than to determine whether
all these legal changes are related to one another by means of
a determinate Comprehensive View that can be said to be
characteristic of the legal system. Of course, on certain occa
sions laymen may think it wise to employ someone who knows
about such things. But even after the accuracy of the expert’s
predictions is tested by events, the layman will be quite un
able to make an intelligent judgment as to whether the system
of rules can best be thought of as organized around a Com
prehensive View.
In saying this I do not wish to become a latter-day adherent
of Holmes’s bad man theory of law.2 My claim is not that
laymen are bad people who deny that the law has any moral
content, much less that lawyers ought to think about the law in
this way. Instead, my claim is that laymen are ignorant rather
than malign. Given their ignorance, they may of course have
a blind faith that the legal experts with whom they interact
really know what they are doing in terms of a Comprehensive
View. Or they may assert that a lawyer’s successes (when they
occur) are to be attributed entirely to luck and horse sense.
In either case, however, the layman’s opinion is based on ig
norance, nothing more. What is more, the typical American
entertains few pretensions to knowledge on this score: not
only does he not know whether legal rules are patterned
around a determinate Comprehensive View, but he knows that
he does not know. Even if he is unhappy with the professional
opinion he receives from his lawyer, it is only the fool who
will continue trusting his own unprofessional opinion as to
the legality of his conduct. At best, a layman—if he is rich

enough—will pay a second professional in the hope of receiv
ing an opinion more to his liking. But even if this expedient
generates a statement of the law more favorable to his inter
ests, the layman’s need to offset one professional judgment
with another itself indicates his recognition that he is in no
position to judge for himself the extent to which the legal
rules affecting him may be evaluated in terms of a Compre
hensive View.
It follows, then, that one of the defining elements of the
perspective we have assigned to our ideal Observer is deeply
rooted in the structure of American life.3 For it is precisely
the Observer’s unwillingness to begin his analysis by assuming
that rules should be assessed in terms of a Comprehensive
View that sets the Observer apart from the Policymaker. Since
untrained folk make no such assumption, it is perfectly con
sistent with the Observer's basic premises for him to do the
same, despite the disdain of his Policymaking competitors.
T he A f f ir m a t iv e M ission of O r d in a r y O bservin g
In one sense, all this simply says that the division of labor
characteristic of modern society has created the possibility that
ordinary people will think about their social world in terms
that differ fundamentally from those in which specialists some
times view social phenomena. As a proposition in the sociology
of knowledge this is, of course, not news.4 As a proposition in
legal theory, however, its significance has not been fully ap
preciated. For what we have suggested is that Ordinary Ob
serving can be understood as an effort to reject the possibility
of a specialized discourse that the division of labor has per
mitted the legal class.
It is one thing, however, to reject the premises of Scientific
Policymaking; quite another to generate a different juridical
method that will withstand the strains of a modern differen
tiated society. T o put the point in terms of our definitions,
there is far more to our concept of an Ordinary Observer than
the negative point that legal rules need not necessarily be
evaluated in terms of a Comprehensive View. More affirma

tively, an Ordinary Observer is committed to the notion that
law should support dominant social expectations as these are
expressed in ordinary language. Yet it is arguable that the
conditions of modern society render this affirmative objective
impossible to conceive, let alone achieve. T o see the difficulty,
consider first the claim— central to Ordinary analysis— that it
is possible to base modern law on ordinary language. Before
this claim can make sense, one must believe that it is possible
to identify a single way of talking among the laity as the one
that shall be considered Ordinary for legal analysis. Yet how is
this to be done?
It is possible to imagine a society in which this question
would cause no great anxiety. In this society, call it Unifor
mity, each layman not only speaks something-that-passess-for-
English but uses precisely the same English sentences to ex
press himself in each and every one of the many life situations
of interest to the law.5 In such a world, all an Ordinary lawyer
need do to discover the truth about Ordinary language is to
consider, introspectively, how he would express himself about
the subject in his own daily conversation. In contrast, it is
equally possible to imagine a society, call it Babel, in which it
would be absurd for a lawyer to assume that his own daily con
versation was typical of the generality of untrained laymen.
Here, unless the legal culture wished to declare itself captured
by a small fraction of the population, lawyers would have no
choice but to devise a scientific legal language whose clear
definitions could be translated into the diversity of tongues in
common use. It should be clear, I suppose, that contemporary
American society is somewhere between these two extremes.
The futility of basing law upon the Ordinary language is not
so apparent as it would be in Babel. Yet, we are far from Uni
formity. In a well-developed jurisprudence, then, the Ordinary
analyst would have a lot to say about the difference between
dialect and standard English, and how the lawyer is to respond
when he finds that standard English itself is capable of wide
variation.
While the existence of linguistic diversity poses very serious

theoretical problems for Ordinary analysis, even these do
not represent the heaviest burden that must be borne by those
who wish to vindicate the methods of Ordinary Observation in
American law. Our ideal type is not only devoted to the use of
Ordinary language; he is— as an Observer—committed to se
lecting those rules which ordinary analysis reveals to best sup
port the expectations generated by dominant social institu
tions. Yet it should be plain that this aspect of the Observer’s
enterprise presupposes some basic facts about social life that
are far from obviously true of American society. T o begin with
the least controversial notion, I shall not pause to dispute the
idea— fundamental to sociology— that people often expect each
other to interact in terms of institutionalized behaTIoral norms
defining socially appropriate conduct. This simple notion,
howeverTTs not enough to support the entire weight of the
Observer’s method. By definition, an Observer is not content
to isolate one or another pattern of institutionalized expecta-
tion; he is searching instead for the single pattern of practice
that may be called the dominant one in a given social system.
And this, of course, is a tar more controversial endeavor. In a
complex society like America, it is only to be expected that dif
ferent people of different classes with different cultures will
expect different things from the same interactional context.
Indeed, it is precisely where interactional expectations diverge
that intractable disputes are most likely to arise, driving the
participants to the courts in a last effort to resolve their dis
pute.
It follows that it will not be enough for an Observing judge
to believe— in a fuzzy way— that it is possible to identify cer
tain institutionalized expectations as “ dominant” within a
given society. Instead he will often be confronted with disputes
in which both sides invoke subtly different conceptions of social
practice— differences which predictably redound to their par
tisan advantage in the case at bar. At this point, of course, the
Observing judge will be obliged to sift social interaction in a
very refined way if he is to determine which social pattern
merits the privileged juridical status of dominant social norm

and which will be downgraded as a mere variant of, or down
right deviation from, the norm. T o put the point more gen
erally, a fully developed Observing jurisprudence must specify
with precision the criteria by which a judge is to recognize a
particular interactional norm as one that has been generated
by “ the” dominant set of institutions, rather than some other
set. And how is this to be done?
The problem is precisely parallel to our statement, in Chap
ter 3, of the master question for Policymaking jurisprudence.6
There the Policymaker was confronted with the fact that there
are any number of Comprehensive Views held by any number
of different people; yet, as a decisionmaker, he was obliged in
the end to identify a single view as the one with definitive legal
authority. Here it is the Observer who must face the fact that
the social world is a big, big place; yet once again the requisites
of legal decision demand that a complex social web be reduced
to a single line. As in my treatment of Policymaking, however,
I am not interested here in attempting a deep jurisprudential
answer to the Observer’s master question.7 Instead, after glimps
ing the depth and obscurity of the abyss, I mean to tiptoe
around it in a lawyerly fashion by noting that practical men of
affairs have long since resigned themselves to using methods
which they do not fully understand. It is enough for lawyers
that a method seem plausible, rather than that it be warranted
as foolproof. Indeed, if the legal profession were more demand
ing, it would have no choice but to dissolve posthaste— for
there is absolutely no chance that the conceptual foundations
of either Policymaking or Observing will become transparent
overnight.
Our task here is not to resolve ultimate issues but to con
vince the profession that the ascent to theory is a practical
necessity. T o do this, it must first be shown that Ordinary
Observing permits the lawyer to view the established rules of
compensation law as something more than the hopeless
scramble perceived by his Scientific Policymaking colleague. It
is only after the practical reality of the analytic conflict has
been established beyond reasonable doubt that an invitation

to further theoretical inquiry, in the concluding chapter, can
appear as something more than an academic exercise.
O r d in a r y P r o p er t y T alk
Let us, then, take the Ordinary Observer seriously and trace
the way he would go about defining the problem in interpreta
tion posed by the compensation clause. Unlike his Scientific
rival, our new ideal type will not spurn the mass of property-talk
and practice indulged in by the untrained multitude. Nor will
he be deterred by the fact that if one presses on at once to an
excessively detailed level of Observation, it will become ap
parent that all Americans do not talk, think, and act about
private property in precisely the same way. Instead of losing
himself in a Babel of detail, the Observer will instead move
to a somewhat higher level of abstraction to describe the larger
Uniformities that for him provide the key to property-talk.
The place to begin is with platitude. Private property is a
fundamental institution of American life. A foreigner who
knew nothing about private property would have the greatest
difficulty conducting the most trivial transactions with the
natives—even if he resembled the typical American in all
other respects. As soon as this is conceded, the Observer can be
provided with a relatively clear question which can serve to
direct his inquiry: What must a foreigner be taught about
property before he can hope to avoid calling attention to him
self as a strange and alien being? Or, to put the point closer to
home, most of us are obliged as parents to solve a similar prob
lem as we undertake to teach our children to survive success
fully in the larger society that awaits them. Just as the Ob
server could ask himself how he might ease the path of the
entirely ignorant foreigner, so he might consider the things a
child must (and does) learn about property on pain of being
labeled a deviant by the dominant institutions of American
society.
Consider, then, the life of a perfectly socialized middle-class
child 8 whom we shall call Layman. From a very early point,
9» ORDINARY ADJUDICATION
young Layman has been taught to distinguish between things

that are his and things that are not his. If something belongs
to him, others are under a prima facie obligation to ask his
permission before using it; they are justified in using his things
without obtaining Layman’s permission only if they have some
especially compelling reason for this extraordinary action. In
contrast, Layman may properly use his things in a large num
ber of ways without asking anybody’s permission. Even Lay
man, however, cannot use his things in absolutely any way he
wants; instead he is taught to refrain from actions that, as a
well-socialized child, he should know are unduly harmful to
others.
Now, in saying all this, I mean merely to provide a highly
abstract account of the conceptual framework into which a
middle-class child is socialized before he may claim to know
what is involved in asserting that a particular thing (say, a
bicycle) is his. These general principles are taught and inter
nalized in the way that is normal for such things— through
precept and example, within the family, the school, the peer
group, on television. And the sanctions that are imposed for
deviant behavior are also quite familiar— physical abuse, tem
porary withdrawal of affection, stigmatization by one’s peers,
the symbolic defeat of the bad guys on television, and so
forth.9
Within this general framework there are doubtless many
subtle differences in the pattern of claim and counterclaim
that coexist within a group as large and heterogeneous as
“ middle-class” America. My abstract account is not intended
to deny these differences, but rather to give them structure.
Thus, while I would anticipate different subcultures to hold
disparate ideas of what constitutes an “ exceptional” circum
stance that justifies somebody else (Johnny) in using Layman’s
bicycle without his permission, I would not expect a great
deal of dispute on the point that there must be something ex
ceptional about the situation to justify the use of the bike.
Otherwise the bike was not Layman’s in the first place but be
longed, at best, to both Johnny and Layman. Similarly, I
would expect widespread differences among subgroups as to

what precisely it is that a “ well-socialized” child should know
is unduly harmful to others and hence wrong to do with his
thing. Nonetheless, I would not expect disagreement on the
proposition that Layman, by virtue of the fact that it is his
bike, may properly do many more things with it than Johnny,
who merely covets it: if the notion of “ harm” were so expansive
as to limit Layman to very much the same uses of the bike that
were open to Johnny, I should be happy to concede that my ab
stract account had been shown to be inapplicable to the prop
erty talk and practice of the particular subgroup under study.
T o put the point in terms of a useful distinction recently ad
vanced by Ronald Dworkin: while the various socialization
groups in middle-class America seem to me to have a common
abstract concept of what it means for a thing to belong to
Layman, they may well have different concrete concept io n s ^
property ownership.10 At bottom, I am making an empirical
claim here that could in principle be disproved by a social
anthropologist.
It is central, however, to the Ordinary Observer’s method
that he does not require the services of an anthropologist be
fore he believes himself entitled to give legal status to the
Ordinary Observations wre have made thus far about dominant
property practices. Instead, as a successful lawyer in American
society, the Observer believes himself sufficiently familiar with
the customs of the natives to judge my account without the
need for further independent authority. I shall not, therefore,
attempt to prove that my account—when taken at its proper
level of abstraction— is true. Instead, the analysis only requires
an appeal to the intuitions of my (presumably) well-socialized
colleagues in the law—and an invitation to make these un
doubted intuitions the basis of legal doctrine.
T o sum up: while the Scientist rebels at the thought that a
single person can be properly identified as the owner of a
thing, the Ordinary Observer takes a very different view. A
particular thing is Layman’s thing when: (a) Layman may,
without negative social sanction, use the thing in lots more
ways than others can; and (b) others need a specially compel
ling reason if they hope to escape the negative social sanctions
that are normally visited upon those who use another’s things
without receiving his permission.11 As we shall see, this ac
count of the Ordinary concept of property ownership suffers
from many kinds of ambiguity that are generally irrelevant in
everyday use, but which come to the surface at the times of
crisis with which the law has to deal. Nevertheless, we have
said enough to permit us to provide a general account of the
takings problem to parallel the one provided earlier for the
Scientific Policymaker.12
T he G e n e r a l St r u c t u r e of th e T a k in g s P r o b le m
Consider the following scenario: At Tim e One, observe

some particular thing that Layman would say was his thing.
During this period, Layman uses his thing in lots of different
ways— or at least thinks he can if he wants to. Similarly,
Layman’s associates generally refrain from using his thing
without his permission, except in special circumstances. And
if somebody takes his thing unjustifiably, Layman can always
go to the police or a lawyer who will profess concern and try
to do something about it.
During this time, changes are doubtless occurring in both
the legal and economic systems that affect the value of Lay
man’s thing and the uses to which it may be put. Nonetheless,
throughout the period none of Layman’s ordinary associates
would ever deny that the thing was Layman’s thing, rather
than somebody else’s. At Tim e Two, however, it appears that
some lawmaking institution has made a new decision (for rea
sons which Layman may or may not understand) of a funda
mentally different kind, at least so far as Layman is concerned.
As a result of this new legal decision, Layman can no longer
call the thing his own and have that claim recognized in or
dinary discourse. Instead of belonging to Layman, it either has
been destroyed or belongs to somebody else—generally, but
not necessarily some state official—whose permission must gen
erally be obtained before the thing may legitimately be used.13
ORDINARY ADJUDICATION 10 1
It is this assault upon his accustomed way of understanding

his relationship to the economic and social world that brings
Layman into court to complain at Tim e Three. According
to him, the state has taken his property in the only sense he
understands the term. At Tim e One the thing was Layman’s
thing; at Tim e Two it is no longer Layman’s thing, but be
longs to somebody else. What could be simpler and more
straightforward? And it is this obvious point which will be of
the first importance to a judge bent on interpreting the com
pensation clause from the perspective of the Ordinary Ob
server. T o translate Layman’s grievance into a legal question
for judicial inquiry: As a result of action taken at Tim e Two,
is it fair to say that the state has taken one of Layman's things
away from him? If the answer to this question is in the af
firmative, a prima facie case of a constitutional “ taking” has
been established; if not, not. By putting the question (and
answering it) in this simple-seeming way, the judge has begun
the task of transforming the constitutional text into a man
date for the Ordinary Observer’s approach to law.
It would be a serious misrepresentation, however, to suggest
that this initial inquiry will exhaust the Observer’s inquiry into
the compensation clause. For it should be recalled that the
(middle-class American) Layman does not believe that, simply
because something is his, he is thereby justified in doing what
ever he wants with it. Rather, from earliest childhood, he has
been taught that while he can use his things in lots of differ
ent ways, ho is not justified in using them in some ways that,
as a well-socialized person, he ought to recognize as unduly
harmful to others. Imagine, for example, that young Layman
has a bike which he constantly rides over the neighbor’s flower
beds. When told to desist from his actions, Layman becomes
perverse and defiantly asserts that it is his bike and he will de
flower as many marigolds as he pleases. If, in response, his
parents take his bike away from Layman until he promises not
to harm the interests of others, the parental taking assumes a
very different aspect from one which is not so justified. Indeed,
it is precisely by the imposition of such sanctions as these that
i
10 2 ORDINARY ADJUDICATION
the child eventually becomes a successfully socialized adult

who recognizes that, simply because something is his, he is not
justified in using it in ways that he ought to recognize as un
duly harmful to others. Hence, if the courts were looking at
the compensation clause from the vantage point of an Or
dinary Observer, one would not expect them to grant the ag
grieved plaintiff compensation as soon as it was determined
that, as a result of the legal change, it no longer could be fairly
said to be Layman’s thing. This finding would only serve to
establish a prima facie case 14 that compensation was required.
For it remains possible that Layman had been using his prop
erty in a way that he ought, as a well-socialized individual, to
recognize as unduly harmful to others. And if the government
did no more than prevent Layman from continuing such a use,
it should be permitted to defend its action as justified within
the Ordinary meaning of the takings clause. Now, of course,
interpreting the concept of “ undue harm” will give the courts
a great deal of trouble, since the cases coming to litigation will
reveal ambiguities in Ordinary conversation that do not often
come to the surface in the ebb and flow of daily life. Nonethe
less, if the judge is committed to the Ordinary Observer’s point
of view, he will have no choice but to resolve these difficulties
as best he is able. A ll this leads us to two simple-seeming
questions that will engage the attention of the Ordinary
judge:
1. Has the state taken one of Layman’s things away from
him?
2. If a taking has occurred, can it be justified on the ground
that it was necessary to stop Layman from engaging in conduct
he ought, as a well-socialized adult, to have recognized as un
duly harmful to others?
It should be clear enough that these questions mark out a
path very different from the one taken by the Scientific Policy
maker as he searches for the answer to his version of the tak
ings problem by elaborating the Comprehensive View he un
derstands to prevail in the legal system. Nonetheless, it is cen
tral to my argument that the lawyer who seeks to choose one
path over another will find in the present legal culture no
argument that self-evidently serves as an authoritative sign
post pointing in the direction of Legal Truth. In particular,
neither side can point to the language of the Constitution it
self as decisively indicating that one or the other approach has
superior textual support. Indeed, the present problem serves
as an excellent example of the failure of literalism as a tech
nique of constitutional interpretation. On the one hand, we
have already seen that the Scientific Policymaker has little dif
ficulty reading the Constitution so as to legitimate his mis
sion: “ nor shall private property [i.e., any legal right to use a
thing held by a private person] be taken [no serious interpre
tative difficulty here] . . . without just compensation [i.e., pay
ment is due to the extent deemed just under the prevailing
Comprehensive View].” The Ordinary Observer, however, will
choose to read the same words with a significantly differ
ent understanding: “ nor shall private property [i.e., any thing
that Layman would call his own] be taken [unless it is neces
sary to prevent Layman from using his thing in a way he
should recognize as unduly harmful] without just compensa
tion [i.e., payment should be sufficient to permit Layman to
buy a thing as good as the one he lost].”
It is, I think, quite pointless to decide which of these read
ings qualifies as the Constitution’s “ plain meaning.” Both are
elaborations of the text; neither is a complete fabrication;
each is, in short, an interpretation, whose ultimate validity
depends upon the value of the form of legal culture which
gives the interpretation meaning. It is for this reason that a
lawyer who seeks to interpret the Constitution cannot stop
short of a confrontation with the conflict in the legal culture
we are seeking to elaborate.
S p e c if ic a t io n of J u d ic ia l R o le
First Principles of R ole Theory

Having outlined the basic framework within which an
Ordinary judge will understand and attempt to resolve the
takings problem, only one final element must be considered

before our model of Ordinary adjudication can become fully
operational. I refer, of course, to the way an Ordinary judge
will understand the limits of his office when he is called upon
to exercise the power of constitutional review. More particu
larly, we must compare the way an Ordinary Observer will
understand the nature of judicial restraint and innovation
with the way a Scientific Policymaker will deal with these
same concepts.15
We begin by asking why an Ordinary Observer will find his
rival’s role theory deeply misconceived. The problem arises
because the Scientific Policymaker’s distinction between ju
dicial restraint and innovation only makes sense in terms of
his larger concern with linking the analysis of legal rules to a
broader Comprehesive View. Thus, a restrained Policymaker
is a judge who is willing to assume that the world-outside-
his-courtroom is “ well-ordered” in terms of the legal system’s
Comprehensive View; while the innovative Policymaker thinks
it proper for a judge to notice the world’s imperfections and
use his judicial power to lead society closer to a “ well-ordered”
condition, as defined by the Comprehensive View imputed to
the legal system. Unfortunately, however, since the Ordinary
Observer thinks it a mistake to impute any Comprehensive
View to the legal system, he can hardly embrace a distinction
which presupposes that such a move must be made by any
self-respecting judge. T he Ordinary Observer’s task, then, is to
express the meaning of judicial role in terms of the idea that
a primary task of adjudication is to grasp and explicate the
conceptual structure of Layman’s social reality, rather than
some Comprehensive View said to constitute the ultimate ob
jective of the legal order.
T o do this, it is necessary to reflect a bit upon the nature
of the relationship between the Observing judge and the well-
socialized Layman, whose talk and action constitute the prime
object of judicial interest. As we have seen, the modern day
Layman looks at the legal system as if he were a “ law-taker”—
no more capable of changing legal rules by his own actions
ORDINARY ADJUDICATION IO 5
than he is of changing market prices. Yet this is precisely the

respect in which a judge may be understood to differ from
his fellow citizens. Especially when he addresses a constitu
tional question, he has it in his power to act as a law-maker,
unchecked by many of the restraints that bind the ordinary
law-taker. It follows that before a judge can approach the
constitutional text as an Ordinary Observer, he must embrace
a very distinctive notion which will occupy a central role in
his understanding of the judicial function:
First Principle of the Ordinary Observer's Judicial R o le:
While the judge has it in his power to act like a law
maker, he should not use this power to further his own
personal predilections but should instead think about
each lawsuit as if he were a law-taker.
Needless to say, all Policymaking judges would reject such
a notion. T o them, it represents nothing less than an act of
judicial self-mystification— a perverse refusal to recognize a
judge’s obligation to use his power to further the highest
ideals established by the legal system. Yet what follows would
seem even more disturbing. Not only does the Ordinary judge
commit intellectual suicide^n the name of self-restraint, but
he proposes— in the name of constitutional interpretation— to
invalidate legislation which may be based upon a perfectly
sound Comprehensive View simply because it is inconsistent
with the Layman’s understanding of his existing relationship
to society, bo far as the Policymaker is concerned, this is to
assert that, for constitutional purposes, concrete expectations
whose only legitimacy lies in their brute existence may contain
a higher truth than a piece of coherent and appropriate
Scientific legislation that can be justified under the best Com
prehensive View a legal system might possibly have. In short,
the Observer’s first principle has— in the Policymaker’s eyes—
wrongly transformed the Constitution into a document that
shields the status quo from normal legislative change without
anyone asking whether existing socially based expectations
make some larger normative sense.
io 6 ORDINARY ADJUDICATION
This is not to say that the Policymaker is blind to the con

cerns that led the Observer to place such striking limitations
upon the judicial office. Like his counterpart, the Policy
maker is also concerned with the possibility that judges will
use their lawmaking powers simply to impose their idio
syncratic notions of the public good upon the parties to the
dispute. Only to him the disease is capable of a more sophisti
cated cure, which does not require the judge to accept the
superficialities of the law-taker as the acme of legal thought:
F irst Principle of the Scientific Policymaker's Judicial
R ole: While the judge has it in his power to act as a
law-maker, he should not use this power to further his
personal predilections, but instead should think about
each lawsuit as if he were an agent of the state charged
with implementing the public good as it is defined in the
legal system's Comprehensive View.
T o the Ordinary Observer, however, this “ sophisticated”
solution to the problem of judicial subjectivity is no solution
at all. According to this ideal type, once the Scientific Policy-
maker has liberated himself from the concrete thinking of
-ordinary mpmhgri. n f the community, he will have n o place
to go but to his own idiosyncratic notions of the public good.
True, Policymaking judges may delude themselves into think
ing that the Comprehensive View they impute to the legal sys
tem represents the will of the people as it is expressed in the
Constitution and other fundamental legislation. But this, to
the Observer, simply represents yet another manifestation of
the hubris that led the Policymaker originally to assert that
judges are entitled to reshape the law in abstract terms that
have only a problematic relationship to the existing structure
of social life as expressed in ordinary language.
The Structure of Ordinary R ole Theory
I have said enough, I hope, to locate the Ordinary theory
of judicial role in the larger debate, dealing with the nature
and object of legal language, to which we shall ultimately turn.
For present purposes, however, it will be necessary to move
beyond first principles if we are to develop a sensitive under
standing of the range of choice open to an Ordinary Observer
as he approaches the takings clause. Even after a judge has
embraced the Observer’s first principle of role, he must re
solve a host of (logically) secondary issues before he can apply
his chosen methodology to the case before him. Most im
portant, he will be obliged to consider whether he should read
the takings clause in a restrained or an innovative way. These
terms are, of course, the same as those used earlier to describe
the Scientific Policymaker’s basic problem in role definition.
Yet, though the words may be the same, they will have a very
different meaning when read in the light of different first
principles. Thus, a “ realistically” 16 restrained Observing judge
will, like his Policymaking counterpart, recognize that even a
“ well-ordered” governmental scheme will malfunction in par
ticular cases. Unlike the Policymaker, however, he will not
use this insight to justify constitutional intervention when the
challenged legislation constitutes a blatant departure from
his understanding of the legal system’s Comprehensive View.
Instead, the restrained Observer will intervene in the name
of the compensation clause when the legislative action plainly
fails to correspond to the dominant pattern of institutional
ized expectation. Similarly, the Observer’s definition of ju
dicial innovation will undergo an analogous transformation.
Instead of innovating in areas where legal rules systematically
fall short of the dominant Comprehensive View, the jnnovative
Observer will conceive himself entitled to scrutinize with
special care official action in areas which seem to him to be
peculiarly insensitive to socially dominant mores.
It should be plain, moreover, that a sophisticated Observing
judge need not respond to every role question as would a
single-minded paragon of restraint or innovation. Instead,
just as in our treatment of Policymaking adjudication, it
should be possible to identify different issue clusters which
could be profitably grouped together so as to reveal the out
lines of the shaded and refined discourse of which the Ob
io 8 ORDINARY ADJUDICATION
server’s legal culture is capable. Thus, we may define17 a

deferential judge as one who takes a restrained attitude to the
decisions of the political branches, while an activist is willing
to assert that one or another nonjudicial institution should
not be so readily trusted to generate rules that are consistent
with prevailing social norms. Similarly, a conservative judge
is one who considers the distribution of property rights pre
vailing at Tim e One to be generally consistent with dominant
socially based expectations, while a reformist will point to
contexts in which he is unwilling to indulge this assumption.18
And an analogous transformation can be made in the distinc
tion between principled and pragmatic judges that we de
veloped in the Policymaking context.19
Once armed with these categories, it would be quite re
warding to explore systematically the way in which one or
another change in the Observer’s role definition will alter the
pattern of prevailing doctrinal responses. The resulting sub
stantive analysis would resemble in form, if not in content,
the discussion presented in Chapters 3 and 4, in which the
plausible modes of Policymaking doctrine were viewed against
the background of restrained and innovative role theory. T o
make an analogous effort on behalf of Observing doctrine,
however, would transform an exploratory essay into a rather
weighty tome. Moreover, a full-scale effort to ring the changes
on Observing role theory is not nearly so central to our more
general thesis as was the analogous attempt made on behalf
of Scientific Policymaking. After all, in the first half of the
book, we were out to show that no plausible form of Scientific
Policymaking existed which gave solid support to conven
tional takings law. While proving a negative is always impossi
ble, it seemed reasonable to explore a wide variety of plausible
Policymaking approaches in order to render our thesis even
moderately convincing. But the thesis now under scrutiny is
(at least from a logical point of view) far less demanding.
Rather than proving a negative, we wish here to establish the
affirmative existence of a form of Ordinary Observing which
does make sense of existing doctrinal categories. T o accom-
ORDINARY ADJUDICATION 10g
plish this mission it is not necessary to explore a wide range
of doctrinal dead-ends, but only to elaborate those judicial
approaches which do successfully enlighten received doctrine.
This narrow objective establishes the entire purpose of the
lengthy Chapter 6. I shall argue there that the established
legal rules of the present day can best be interpreted_ag_the
work of a corps of Ordinary Observers who understood their
ju d icial function in a rather Yf be more
precise about the notion of res train t'mipTIcIFTn existing law,
we need only locate the prevailing judicial role in the three-
dimensional space that we have labored to construct^First^
and most simply, the decisions proceed from an entirely
principled cast of mind, without even die slightest h in t^ f an
effort to take pragmatic account of those whose expectations
deviate from the well-socialized norm.'$econ(£> the courts seem
to have accepted only the mildest fonruof reform ism^lo temper
their generally conservative assumptions dealing with the
existing distribution of property. More precisely, the position
taken on the distributional issue is one we have previously
characterized as agnostic.20 That is, today’s judges are re
formist only insofar as they will not challenge an official
action on takings grounds if it is plainly motivated by redis
tributive concerns— thus tax legislation is generally immune
from serious scrutiny.21 If, however, the challenged legislation
is not motivated by an obvious redistributionist objective, the
courts proceed to analyze the takings problem on conservative
premises, assuming that the distribution of property is con
sistent with dominant social mores unless the political
branches have indicated otherwiseCFinall^, the judges do not
customarily engage in exceedingly activist efforts which re
quire them to argue that they are notably superior to other
institutions when it comes to elaborating the Ordinary con- ~
ception of property that lies at the heart of the takings clause.
Hence, unless the challenged action quite plainly undercuts
Observable expectations, the judiciary will stay its hand and
uphold the judgment reached by the political branches. It is
on this dimension, however, that the greatest amount of prac
1 1 0 ORDINARY ADJUDICATION
tical disagreement exists. While extremely activist adventures

are everywhere avoided, it nevertheless seems plain that some
courts are less deferential than others.22
In short, my aim is to establish existing law as the work of
principled, agnostic, and at least moderately deferential Or
dinary Observers. Since even this limited insight is no longer
clear to the profession, it seems important to develop it with
care: for it is only by understanding the bases of our present
law that we can responsibly decide whether it is worth pre
serving against the challenge of Scientific Policymaking. If
Ordinary Observing survives the present struggle, however, it
will be important to keep in mind that the present doctrine
represents but one of the possible outcomes that may be
generated within the larger Observing theory of judicial role.
M ix in g P o l ic y m a k in g and O bservin g M odes
o f A d ju d ic a t io n
Before setting out to prove our thesis, it is best to note an

oversimplification in its formulation which could potentially
destroy the value of the entire enterprise. Up to now we have
been dealing in ideal types, talking as if a body of legal doc
trine expressed the concerns either of Scientific Policymaking
or Ordinary Observing, but not both. However necessary
this technique may be to achieve a clearer view of the legal
culture, it should be plain that there is no reason to expect
the existing legal universe to be so neatly organized. Indeed, if
our present legal culture is as confused as I say it is, one
should expect it to contain a rich variety of exotic doctrinal
notions that draw simultaneously from both sides of the living
tradition. Hence, it would be very rewarding to attempt a
kind of analytic chemistry upon the various compounds to be
found in constitutional law (and law more generally). It may
be that one or another unstable compound accounts for some
of the deeper obscurities in our law; it may also be possible to
locate compounds that seem to yield a result that appears
more satisfactory than any of the “ pure” solutions, suggesting
in concrete terms the possibility of deriving more abstract
principles for synthesizing the two seemingly conflicting legal

styles. Guided by these discoveries, we may come to mix our
modalities in a more deliberate way. Perhaps lawyers gener
ally attracted to Scientific Policymaking might learn to mark
out certain doctrinal areas as appropriate for Ordinary Obser
vation; and vice versa. Even if such a stable and thoughtful
synthesis should fail to develop, we would at least be in a
better position to understand the direction(s) in which (vari
ous parts of) our law is (are) evolving.
In the present investigation of judicial doctrine, however,
we have to do with a rather pure type, whose study will not be
greatly aided by the development of a complex theory of
mixed modalities. Indeed, I think the mention of a single,
probably quite common, eclectic strategy will serve our pur
poses here. The eclectic approach I have in mind begins from
the premises of Ordinary Observation: the principal task is
the explication of the layman's ordinary patterns of discourse
and expectation. In the course of the effort, however, it be
comes clear to the judge that the peculiar situation he con
fronts forces to the surface ambiguities in ordinary language
that ordinary folk are almost never forced to face in the com
mon run of life. As a consequence, concepts that are har
moniously employed in ordinary communication seem to
suggest disparate ways of understanding the decisive character
istics of the dispute at bar. At this point, the committed
Ordinary Observer may press on with his method, asking
himself what the ordinary person would say, even though he
recognizes his appeal to the structure of ordinary concepts has
become little more than a legal fiction. It is quite possible,
however, that even a judge generally committed to Ordinary
adjudication may refuse to go quite this far in his acceptance
of its first principle of judicial restraint. Instead, recognizing
that the life experience the judiciary is called upon to evaluate
is sometimes far removed from the common run of things, the
eclectic judge will invoke a principle or policy drawn from
some Comprehensive View to resolve his decisionmaking
problem. Scientific Policymaking is thus called upon to rem-
1 1 2 ORDINARY ADJUDICATION
edy the admittedly incomplete and imprecise conceptual ap

paratus of the Ordinary Observer. Nonetheless, the judge I
i
have in mind would never think of according Scientific Policy
making more than a supplemental role. It is only in contexts
in which Ordinary concepts may not be deployed in a co
herent fashion—where it may be fairly doubted that ordinary
language has a structure— that the Scientific Policymaker is
permitted to intervene.
This is, of course, rather a humble role to be accorded the
Scientific Policymaker. So far as he is concerned, it is as if
Newton or Einstein were invoked only to explain the move
ments of celestial bodies (or perhaps the flight of an airplane)
but not the fall of an apple. Nonetheless, it is more than the
pure Ordinary Observer would concede. It is therefore rele 1
vant for our own immediate concerns, since it is possible to
catch glimpses of this view in some of the more recent
opinions that form the subject of our investigation.23 Whether
I
these scattered opinions mark the foundations for a stable
compromise, however, is far too early to judge. They may in f
stead be the first sign of a sweeping Scientific wave or merely i
a ripple in the Ordinary tide.
6 Layman’s Things
T he G e n e r a l I n c o h er en c e of T a k in g s D o c tr in e
Needless to say, the best way to prove my thesis would be to

point to a large number of opinions in which judges self
consciously declared themselves to be Ordinary Observers of a
moderately restrained kind,1 ordering compensation whenever
it seemed fair to say that the state (a) had taken one of
Layman’s things away from him (b) without showing that the
taking was necessary to prevent Layman from using his thing \
in a way that he ought to have recognized as unduly harmful \
to others. Unfortunately, the run of opinions, taken as a
whole, does not suggest a judiciary self-confident in the posses
sion of a basic methodology, however simple. Indeed, the
judges seem anxiously aware of the absence of an organizing
conception of the takings clause. There is much talk of judg
ing the merits of each case in a particularistic fashion and a
great reluctance to limit future freedom of action by making
clear the precise factors that are decisive in the instant dispute.
Indeed, when judges do intervene on behalf of compensation,
they are often distressingly candid in confessing that they are
motivated by nothing more than a vague sense of the im
portance of drawing a line somewhere.2
Perhaps it is the Scientific Policymaker in me that rebels at
all this. Perhaps the very absence of self-conscious reflection is
the mark of a judiciary bent on protecting the perceptions of
the ordinary layman. This is not to say that Ordinary Observ
ing is necessarily obscurantist; 3 only that it values doctrinal
system-building less than its Scientific Policymaking counter
part. However this may be, there are, I think, additional rea
son that help account for the absence of reasoned justification
for existing doctrine.
Most important is the Supreme C o u r t ’s general fr p a t m p n t of
V
114 l a y m a n ’s t h in g s
economic issues since the constitutional revolution of the

1 930s. While the takings clause was never consigned to the
dust bin with economic due process4 and freedom of con
tract,5 there was nevertheless an understandable reluctance to
move too deeply info takings theory. As we have pointed out,6
the clause is— on any interpretation—something of a reaffirma-
-tion of the economic status quo; and it could readily be
suspected that taking the clause too seriously would lead i
conscientious judge to unearth premises that deeply chal
lenged the New Court’s determination to coexist peacefully
with the New Deal. Indeed, the only^ really major Supreme
(Tlnnrt p ro n n iin rp m p n t has been the H ope Natural Gas case 7—
ifTwhich Justice Douglas undercut the constitutional founda
tio n fo r-aggressive judicial review of publie-^rtitity regulat1on.
Along with the Old Court’s decision in Euclid v. Am bler,8 it
could then be taken as settled that takings doctrine would not
be invoked as a source of principle deeply hostile to the ac
tivist welfare state. So long as this principle of peaceful co
existence was not challenged in a way that was too obvious,
Xhe Supreme Court has been content to permit inferior judges
—who are generally far more solicitous of property rights—
to fight a rearguard battle in their defense. Within this general
context, it is not surprising that the lower courts have not
thought themselves called upon to indulge in ambitious efforts
at doctrinal statement and justification. Similarly, in those
relatively few cases in which certiorari has been granted, the
Supreme Court has been peculiarly free of its general tempta
tion to write opinions that assay constitutional foundations in
the course of refashioning basic doctrine.9 Even if the general
constitutional situation were more hospitable to judicial state
ment of the grounds for takings doctrine, however, there is a f
final factor that would deter its clear expression. For reasons i
that will concern us later,10 there_iias been^, I, think, a gradual r
yet discernible increase in the Scientific Policymaking char- >
acter of our legal culture, to the point where express reliance *
upon Ordinary concepts sometimes seems of questionable pro-
priety. T o any modern lawyer, there is an Irreducible crudity >
l a y m a n ’s t h in g s i *5
about a decision that justifies compensation on the ground

that the plaintiff has been deprived of some thing that for
merly was “ his.” If there is anything a lawyer remembers from
his legal education, it is that laymen are deeply confused in
their property talk; that the law of property concerns itself
with bundles of user-rights, not with the awkward idea that
things “ belong to” particular people. Hence, if a judge is
thinking about property in a thoroughly non-Scientific way, he
may find it easier to say that he is making highly individual
istic judgments on the merits of each case, rather than to be
clear about what it is he is doing.
I shall not attempt to prove my thesis, then, by turning the
common lawyer’s trick of relying upon some judicial dicta that
can, with a bit of straining, be invoked in its support. Instead
I hope to show that the Ordinary Observer’s perspective orders
the existing set of judicial holdings in a fashion far more
perspicuous than does any Scientific Policymaking approach
we have considered. I shall argue that the surface categories of
legal doctrine can best be understood as the product of a
deeper judicial struggle with the fundamental categories of
Ordinary adjudication.11 T o do this successfully, it is not only
necessary to show that the cases the Ordinary Observer finds
easy are treated as bedrock certainties by the judges, but also
to establish that the situations which expose the ambiguities
of the Ordinary Observer’s conceptual apparatus are pre
cisely those that are presently considered to be the “ hard
cases” of takings law. I shall not, however, go further than
this and seek to instruct the judges concerning the “ correct”
way to resolve their “ hard cases.” For it is precisely my point
that the hard cases will remain hard howeverlKey are decided
because the problems they raise cannot be satisfactorily re
solved within the structure of Ordinary adjudication. I ndeed,
it will become apparent that the only way to make these cases
easyîs to learn to think like a Scientific Policymaker^12 In
short, rather than organizing the discussion around some
“ leading cases,” we shall proceed by examining the doctrinal
certainties and ambiguities generated as an Ordinary judge
seeks to determine whether (a) one of Layman’s things (b) has

been taken (c) by the state (d) without Ordinary justification;
and will find that they are a mirror of the current law’s per
plexities.
L a y m a n ’s T hings
Social Property and Legal Property

For the legal Scientist, the cardinal sin is to discriminate
among property-bundles and declare that some contain the
essential rights of property while others do not.13 While the
Scientist recognizes that some bundles contain more rights
than others, all are equally property-bundles. T o provide a
convincing account of legal principles from the Ordinary Ob
server’s point of view, however, it will be necessary to make a
distinction that will disturb these deeply ingrained Scientific
sensibilities. For given the Ordinary Observer’s premises, it
makes good sense to discriminate between two types of rights
bundle and to think of one set as realizing the “ true nature’’
of property far more completely than the other.
T o see why, we must begin with the observable facts of
ordinary life. Every day, Layman is obliged to make countless
decisions as to whether one thing or another belongs to him or
somebody else. Yet it is a rare thing indeed for him to find it
profitable to obtain carefully considered legal advice before
making this decision. Indeed, most of the time Layman nego
tiates his way through the complex web of property relation
ships that structures his social universe without even per
ceiving a need for expert guidance. But if Layman usually
does not perceive the need of a lawyer’s advice before saying
that something is his, upon what precisely does he ground his
claim? t
He bases it on the fact that his right to control the use of f
his thing is generally recognized in his everyday dealings with 1
other well-socialized individuals. That is, others will ask his 1
permission to use his thing before doing so; similarly, they [
will not interfere with many of the ways he can make use of 5
l a y m a n ’s t h in g s 117
his thing.14 I should emphasize that I am speaking here of
the way in which well-socialized people deal with Layman’s
things. Obviously criminals and other no-goods or incom
petents may take or use Layman’s thing without permission.
But the important point here is that Layman is confident that
well-socialized folk (among whom he is numbered) consider
these people to be no-good or incompetent and he needs no
lawyer to tell him that the police are there to stop their depre
dations.
None of this is to deny that some of the time Layman will
himself perceive the need to consult a lawyer before he can
knowledgeably claim some thing as his. On rare occasions, for
example, another well-socialized person will make a claim of
right to one of Layman’s things. It will then be necessary for
both to consult lawyers (and perhaps judges) to determine
who has the better claim. Similarly, the rights that Layman
possesses over a thing may be of such a kind that they cannot
be evidenced by a reference to existing patterns of social re
straint and practice. We shall deal more closely with the na
ture of these interests shortly. For now, it is important to see
that in conducting his daily life, Layman will make a funda-
mental distinction between his social property and his lem l
property. As to social property, Layman will claim to be in a
position to point to existing social practices which any well-
socialized person should recognize as marking a thing out as
Layman's thing. If, however. Layman does not believe himself
justified in claiming something as his without appealing to
the opinion of a legal specialist, then I shall say he has only
legal, but not social, property, in the thing in question.15
This distinction between social property and legal property
will be of the first importance in the Ordinary Observer’s in
terpretation of the takings clause. For if the Observing judge’s
principal objective is to protect Layman’s understanding of his
relationship to his things, this concern will apply with its full
force only with regard to social property It is only here that
Layman can come into court at Tim e Three protesting about
a government decision to take something away from him that
n8 l a y m a n ’s t h in g s
he knew was his at Tim e One. In contrast, Layman must

recognize that his claim upon legal property is far more
tenuous—since only a lawyer could tell him whether it was his
in the first place.16 This is not to say that an Observing judge
will always deny compensation when it is legal, rather than
social, property that is taken. It is simply to assert that, within
his chosen analytic framework, cases involving social property
will seem far easier to the Observer than will cases involving
legal property.
Testing the Hypothesis
Having marked a distinction that would seem of the first
importance to an ideal Ordinary Observer, I should like to
propose that existing law marks out a similar bright line be-
tween social property and legal property. While I shall dis
cuss later the complexities that arise in the treatment of legal
property by Ordinary judges,17 it is possible to see how the
basic distinction operates by considering a few easy cases upon
whose doctrinal solutions all lawyers can be expected to agree.
Imagine, for example, that you are the owner of a hundred-
acre farm, worth $10,000 an acre, which is the victim of two
simultaneous governmental depredations, each of which gen
erates a $10,000 diminution in the value of your investment.
On one and the same unhappy day, you receive word that the
Highway Department has selected a thin strip of land along
your border for road construction and that the Air Force has
marked out a traffic lane two miles overhead for the purposes
of military transport. In neither case does the governmental
activity cause a massive disruption in farm life; in both cases,
the monetary loss suffered on total investment is relatively
small. Nevertheless, every competent lawyer would say that
under present law the Highway Department must pay $10,000
for its road, while the A ir Force need not make good on the
$10,000 loss caused by its traffic lane. Why?
The answer becomes clear when one reflects upon the ex
tent to which Layman can gain recognition of his property
rights from nonlegal actors before the governmental action
takes place. So far as the thin strip of land is concerned, Lay
man will typically have no difficulty persuading his peers that

the thing was his social property at Tim e One. This can be
done by pointing to the fact (usually undisputed)18 that dur
ing Tim e One, Layman’s neighbors would not think it proper
to use the thin strip without first obtaining Layman’s permis
sion. Moreover, if on occasion some no-good did trespass on
the land, even he would generally recognize that he was do
ing something considered wrong by the well-socialized mem
bers of the community. In contrast, consider Layman’s diffi
culties if he tried to establish an analogous claim with regard
to “ his” strip of airspace during Tim e One:
Fair M inded Friend: It’s certainly a big place you have

here.
Layman: Yup. As far as the eye can see— it’s all mine.
Friend: Just how much of this place is yours anyway?
Layman: Well, so far as the land is concerned— from here
to here (pointing to the map). And I own all the air
space up to here (pointing again). T h at’s mine too.
Friend: How is this last claim of yours any different from
your saying that the moon is yours? Are you using it in
any way different from the way I am?
Layman: Not right now.
Friend: What do you mean by that? Are you planning
something?
Layman: No. But if I did I could use it without anybody
having the right to complain.
Friend: But that’s just the question at issue. And what
I'm looking for are some facts in our existing social
world which substantiate your claim. How do others
treat this thing you say is yours? Do they ask your per
mission before they use it?
Layman: But nobody is using it.
Friend: T h at’s not quite right. Isn’t industry, for exam
ple, using it for waste disposal purposes?
Layman: Oh, them. . . . Well, I think I ’ll just let them
use it . . . just as a favor, you might say.
Friend: Are you quite sure that you’re letting them use
1 2 0 l a y m a n ’s t h in g s
your thing as a favor to them? Aren’t you afraid that

they would refuse to recognize the airspace as yours
if you pressed your claim?
Layman: Well, if they rejected my claim, they would be
nothing better than common thieves.
_ Friend: T h at’s what you say. But the people who run big
business are not generally presumed to be antisocial
in our society. Perhaps they merely think your claim
to the airspace is not in fact a good one.
Laym an: Well, they’re wrong on that.
Friend: But I ’m still waiting for you to point out to me
some features of social practice which give social sup
port to your subjective certainties. After all, just want
ing something is not enough to support a claim of
ownership in our society.
Layman: Perhaps your doubts will be resolved once you
look at this piece of paper. My lawyer says it entitles
me to claim the airspace. He says: “ Cujus est solum
ejus est usque ad coelum.” How about that?
Friend: Well, I think this mumbo-jumbo is something
best left to lawyers. While your lawyer may be per
fectly right on the matter, you have not come up with
anything that makes it plain to me that the airspace
is yours. In order to do that, you must point out an
existing pattern of social practice in which ordinary
folk respect your claim to the thing by refraining from
using it without obtaining your permission except in
extraordinary circumstances.
The fact that modern judges have found it hard to devise

rules governing compensation for the taking of airspace is,
then, not terribly surprising under an Ordinary interpretation
of the takings clause. In saying this I do not mean to suggest
that legal property will never be afforded protection by Ordi
nary judges— as we shall see later, the entire problem will
give them immense difficulty.19 Instead, I maintain the more
modest thesis that the protection of legal property interests
l a y m a n ’s t h in g s 1 2 1
under present law seems a far more problematic matter than

the protection of social property. Hence, it is not surprising
to find comparable cases—like the ones involving the Highway
Department and the Air Force we have just hypothesized—in
which the owner of social property is granted compensation
as a matter of course, while the holder of legal property may
well be left out in the cold.20
Legal property, of course, encompasses much more than air-
rights, and it is important to obtain a rough sense of the sweep
of the concept. It seems relatively easy to extend our air-rights
hypothetical case to other spatial domains which are inhos
pitable to ordinary human interaction. For example, we shall
later consider the way in which the Supreme Court labored
with a problem posed by the decision of a coal company to sell
a homeowner rights to the surface while reserving to itself the
right to mine subsurface minerals at some future time. What
ever else can be said about this problem,21 it would seem rea
sonably clear that, until the time the coal company began
actual mining operations, its rights in the land were only
legal, not social. That is, until mining commenced,22 the com
pany could point to no observable pattern of interaction and
restraint that would indicate to a fair-minded Layman that
the subjacent coal belonged to the company rather than to
somebody else. It is true that a search of the legal records
would reveal a piece of paper reserving certain rights to the
company—but this is sufficient only to establish legal property,
not social property.
It is possible, I think, to generalize this talk about air and
mineral rights further, provided one is willing to suffer the
embarrassment of reasoning from the absurdly crude fact that
people, in general, conduct their lives on the earth’s surface or
things attached to it. As a consequence, when well-socialized
members of mankind refrain from using a surface-based thing
that Layman claims belongs to him, it seems reasonable for
the non-lawyer to infer that the thing is actually Layman’s
thing. For if it were not Layman’s thing, at least one of the
many socialized people in the environment would have taken
12 2 l a y m a n ’s TH IN G S
it without asking. In contrast, so far as things not proximate

to the earth’s surface are concerned, the non-lawyer will re-
quire something more than the fact that others are not using
the thing hehore he w ill accept Layman’s claim that the thing
belongs to him.t Here the non-lawyer will insist that Layman
exercise some obvious form of dominion over the thing he
claims is his, before h g jg n qualify as holding socialr as opposed
to merely legal, property in the thing. Thus, if Layman had
built a two-mile-high skyscraper on his hundred acre lot, there
would have been no difficulty in his satisfying his fair-minded
friend that the air-space was his; similarly, if he had actively
engaged in the practice of charging firms for the use they
made of the air-column, Layman would have converted his
legal right into a social right. The same is true of a person
who claims the subsurface; as soon as the coal company began
actually to mine its claim, there would be a set of practices
evidencing rightful dominion over a distinct thing under the
surface. But until a set of social practices comes into existence
evidencing control over the subsurface as a distinct thing, the
coal company must recognize that a legally untrained Layman
would have no reasonable way of assessing the validity of its
claim of ownership without hiring a legal specialist.23
Needless to say, the fact that Laymen are ready to credit
surface-based claims more readily than others is for the Sci
entific Policymaker just one fact among many, whose impor
tance is to be judged by consulting the implications of the
Comprehensive View he has imputed to the legal system. The
idea that the intellectual limitations of legal ignoramuses
should be given legal importance in their own right— indepen
dent of any Comprehensive View— is, however, the last thing
that would seem to him reasonable. For in Scientific terms,
the L ayman seems to be blindly insisting that property B un-
dles containing surface-based rights are “ truer” property
bundles"than all the others. And that is dangerous obscur
antism.
It is even more dangerous when a second intellectual de
ficiency of the Layman comes sharply into focus. For it appears
that he is jn prp willing tnjyrnm the privileged status of social
property to a Haim ant who is rapahle oT exercisin{
rv moment in time'
over a surface-connected thing at the v<____________________
lie fTclaimingThe thing as his. T husr a person who has onlv~^
a future interest in a thing— no matter how ample it will be
on fruition— may very easily find himself in the position of the
holder of legal rather than social rights, capable of evidencing'
his claim to a thing only by invoking a specialist opinion.24
No matter how crude this focus upon contemporaneous life
on the planet’s surface may seem to the Scientist, however, it
makes perfectly good sense from the Layman’s point of view.
For the Layman just happens to be living right now on the
jurface of the earth, and what he most pressingly needs are
some simple criteria thatTa) will permit him to identify those '
things _that he may presently ihp fn achiî/p hk prcspnf pur
poses, and (b) the people he must contact if he is to obtain
permission to use things that are not his. For these purposes,
the distinction between social property ancTlegal property
makes very good sense indeed. And since the idea of social
property is of such central importance in everyday life, it will
serve to define the focus of takings law, so long as it is domi
nated by the concerns of Ordinary Observers.
L a y m a n ’s T hing H as B e e n T aken
Transfer of R ightful Possession

Let us limit our attention for a time to social property—
Layman’s things— and count the ways in which Layman’s
things can be taken from him. I shall begin by contrasting
two hypothetical cases whose correct doctrinal solution I think
any competent lawyer will find easy; in the first case, no
compensation will be awarded under present law; in the
second, compensation will be granted as a matter of course.
Despite the fact that these cases are easy under existing law,
they do not seem easy under any of the modes of Scientific
adjudication we have considered; in contrast, when viewed
from the perspective of a moderately restrained Ordinary
judge, existing doctrine is not only predictable but inevitable.

In short, it is only by adopting an Ordinary interpretation of
the takings clause that one can explain why these easy cases—
in which the correct solution is not open to endless argument
and anxious indecision— are easy.
Consider, then, the Layman family, proud in their posses
sion of two Cadillac cars and the other accoutrements of the
good life. Layman’s present standard of living, it appears, is
being threatened by a new crisis in Arab-American relations
which has forced the American government to choose between
two drastic gas conservation measures, each of which will make
automotive travel far more costly than at present. Under the
first statute, the maximum speed limit on all highways will
be lowered to twenty-five miles an hour, a limit designed to
cut gasoline consumption by half. Under the second statute,
the government will leave the speed limit intact but take pos
session of half the nation’s automobiles and ship them to
Montana for the duration of the crisis—once again cutting
fuel consumption by half. For present purposes, I am not in
terested in whether there are better ways to fulfill the energy
objective than the two I have hypothesized. My only aim here
is to determine how Layman’s claim for compensation will
be treated under the alternative scenarios. T o make the com
parison more striking, imagine that the monetary loss suffered
by Layman under both statutes is precisely the same. Assume
that, as a result of the speed-limit statute, each of Layman’s
Cadillacs depreciates in value from $5000 to $3000, leaving
him $4000 poorer overall. Similarly, under the car seizure
statute, Layman is left with one car whose value increases from
$5000 to $6000 as a result of the legislated automobile scarcity,
once again leaving Layman $4000 poorer at Tim e Three than
he was at Tim e One. Nonetheless, despite the equal monetary
loss, Layman will obtain compensation in the car-seizure
case,25 but will be required to bear the loss in the speed-limit
case. Not only will these seemingly similar cases be treated
differently, but neither will strike the contemporary lawyer
as raising a difficult legal issue under established doctrine. In
the car seizure case, the government has taken possession of

Layman’s car— an act that traditionally carries with it the
requirement that compensation be paid.26 In the speed-limit
case, the government will be said by courts to have merely
passed a regulation which has caused Layman a 40 percent loss
—an amount that will be considered far too little to warrant
compensation.27
As we have seen, it is easy for the Scientific Policymaker to
look on this doctrinal effort as grossly oversimplified at best.
On the one hand, recall that both Utilitarian and Kantian
judges will have great difficulty accepting the present per se
rule requiring compensation whenever a property owner is
ousted from title or possession28—hence the car-shipment
statute will not so clearly seem to require compensation. On
the other hand, Scientific Policymakers will not stop their
inquiry into the speed-limit statute as soon as they learn that
Layman’s Cadillacs have only declined in value by 40 percent,
since many other factors will be considered relevant as well.29
Hence the speed-limit statute will not so clearly seem to escape
the compensation requirement. This said, I am not terribly
interested in predicting how one or another Policymaking
judge would actually decide these two cases; this will depend
greatly both on the particular Comprehensive View and the
particular conception of judicial role that prevails within the
legal system. For present purposes it is enough to note, first,
that the correct result in either case is not obvious under many
plausible forms of Scientific Policymaking, and, second, that
it is even less obvious that a clear-thinking Policymaking judge
will grant recovery in one case and deny it in the other, rather
than treating the two cases in the same way.
Nevertheless, drawing a sharp distinction between the two
cases seems ridiculously easy to those who attempt an Ordinary
Observer’s interpretation of the takings clause. In the car-
shipment case, it seems clear that as a result of the govern
ment’s action at Tim e Two, one of Layman’s Cadillacs is no
longer Layman’s thing at Tim e Three, but instead belongs to
some government bureaucrat out there in Montana. Hence,
a prima facie case of a taking has been made out. The only
question left open is whether a well-socialized Layman ought
to recognize that driving two Cadillacs during the fuel crisis
is unacceptably harmful to others. In contrast, despite Lay
man’s displeasure at the $4000 loss he has suffered under the
speed-limit law, he would be exceedingly puzzled if somebody
thought it proper to assert: “ As a result of the statute, this
Cadillac isn’t your Cadillac anymore.’’ As a matter of ordinary
language, this is quite plainly false. Despite the fact that the
thing is worth a good deal less, it is just as much Layman’s
thing as it was before: others still have a prima facie obliga
tion to ask his permission to use the cars, while he can still use
his Cadillacs in lots of ways that others can’t. Since, despite
the speed law, both Cadillacs remain Layman’s things at Tim e
Three, it follows that an Ordinary judge would find that the
plaintiff has not even made out a good prima facie case for
compensation.30 T he two cases not only fall out in opposite
categories, but they fall out just as they do in the received
doctrine of the present day. Indeed, even the law’s doctrinal
labels are here suggestive of their Ordinary origin— the car-
seizure situation being the classic legal case of a “ taking,”
while the speed-limit statute serves as the classic case of a
noncompensable “ regulation.” 31
In saying this, I would not wish you to think that the
Ordinary Observer pictures his problem as if it contained
nothing but crude and simple lines while his Scientific coun
terpart paints only gray on gray. Instead, the roles can be
reversed, with the Ordinary jurist calling for the exercise of
delicate judgment and the Scientist wondering what the com
plex analysis is all about. T o illustrate this, let us consider a
different aspect of the problem raised by my hypothetical car-
seizure statute. Assume for the moment that the Scientific
Policymaker, for reasons that seem sufficient to him, joins
with his Ordinary colleague in concluding that Layman is
entitled to compensation. Having cleared the initial hurdle
without an upset, it remains for both our worthies to deter
mine the dollar amount owing to Layman that will justly
compensate him for his loss. This issue is problematic when it
is recalled that, as a result of the car-seizure statute, the market
value of the Cadillac remaining in private hands has increased
in value from five thousand dollars to six. Hence, while the
market value of the Cadillac taken by the government was
five thousand dollars at Tim e One, the net impact on Lay
man’s wealth as a result of the statutory redistribution of
property bundles is only four thousand dollars. How much,
then, should Layman receive in just compensation— five thou
sand or four?
Despite their differences on other matters, all Scientific
Policymakers will think the answer to this question easy and
obvious. Putting administrative costs to one side for the mo
ment, Scientists would assert that the correct sum of money
due is four thousand dollars. For them, the fact that one
bundle of rights, labeled Cadillac No. 1, suffered a $5000 loss
does not count as a reason for ignoring the fact that a second
bundle of rights, labeled Cadillac No. 2, has gained in value as
a residt of the very same legislative redistribution. For the
Scientist will recall that these two "bundles” are treated as
separate packages, rather than one larger package, merely for
reasons of technical analytic convenience which ought not be
considered normatively important in their own right. Hence,
no good reason can be given for refusing to treat the two
bundles as one when this will generate a result more consistent
with the Comprehensive View. And this, it would seem, is pre
cisely the case here— for nothing we have said suggests that any
Utilitarian or Kantian judge would claim that Layman has a
constitutional right to be better off at Tim e Three than he
was at Tim e One. Yet is this not precisely what will happen if
Layman receives more than four thousand dollars?
T o ask the Scientific question is to answer it, which is, of
course, the very essence of an "easy” case. Indeed, the only
factor that could conceivably make the issue difficult is the
added administrative cost involved in making the extra factual
finding as to the extent to which Cadillac No. 2— still in Lay
man’s possession— has increased in value. If the extra cost of
12 8 l a y m a n ’s t h in g s
fact-finding exceeded a thousand dollars, for example, most

Utilitarian judges would have little difficulty in concluding
that the extra factual precision was not worth the trouble.32
The extent to which a Scientific judge will search beyond the
bundle labeled Cadillac No. 1 in his calculation of net impact
is, however, a question of administrative convenience only,
whose answer may well differ if the litigant is Hertz Rent-A-
Car rather than a single middle-class Layman. At best, then,
it may be prudent to give Layman five thousand dollars and
be done with the matter, making him the beneficiary of the
fact that determining facts is a costly business. In situations in
which this consideration is unimportant, Layman will receive
only four thousand dollars and not a penny more.
In contrast, the Ordinary j udge will suspect that Layman is
entitled to five thousand dollars on grounds~of basic principle.
According tolum , La ynra n h a s~qti a Ii fte d fo r ~comyrefl~sa£ldn no t
because he has suffered some general diminution In the value
of his asset portfolio but because one of his things im TTieen
taken. Since that thing was worth five thousand dollars, this is
what should be paid without further inquiry into the recent
fluctuations in other parts of Layman’s portfolio. After all,
that inquiry might reveal that some of L ayman’s other things
have also diminished in value as a result of government action,
ye! these losses would not ordinarily be compensable unless
they involved a taking of a distinct thing. And if other
government-induced losses are ignored in the compensation
calculus, the existence of government-induced gain sjjiat have
accrued in other parts of the portfolio should also be deemed
irrelevant. For it would seem quite unfair to look heyoncT
Cadillac No. 1 only to find the gains but not the losses. As a
consequence, the Ordinary judge will tend to limit very nar
rowly the range of inquiry concerning the degree to which a
government taking has generated benefits in other parts of the
petitioner’s portfolio. It is only if the government has taken a
part of one of Layman’s things (for example, by taking half of
Layman’s land for a highway, thereby making the other half
more valuable) that the Ordinary judge can see some sense in
netting the losses by the gains. It is revealing, then, that the
present case-law conforms to the pattern predicted of the
Ordinary judge, in which the thoroughly un-Scientific notion
of a “ partial taking” occupies a prominent place.33
We are now in a position to discern larger patterns emerg
ing from our treatment of separate issues. In the car-seizure
case, for example, a typical American judge would have no
difficulty finding that Layman’s Cadillac has been subjected to
a taking under the Constitution; then he would go on to
award Layman five thousand dollars for his loss, though here
he might be troubled by the analogy of the “ partial” takings
cases, under which the loss suffered on one part of a single
parcel of land may be offset by the gains accruing to another
portion of the parcel. While this pattern is readily explicable
in terms of Ordinary Observing, it is quite puzzling from a
Scientific Policymaking point of view. Both the judge’s confi
dence as to the need for compensation and his perplexity as to
the measure of compensation seem misplaced. As to the need
for compensation, some Policymakers will conclude that com
pensation ought not be paid at all, and many will think that
if compensation is to be paid in the car-seizure case, it should
also be paid in the speed-limit case. As to the measure of
compensation, all will think Layman is entitled to no more
than S4000 provided that the change in the price of his remain
ing car is a fact that may be easily ascertained in a relatively
accurate way. We are confronted, then, with a difference in
approach that is important not only here and there but seems
to command attention everywhere.
The Destruction of a Thing
Up to now we have been dealing with two of the simplest
and most fundamental categories invoked in the Ordinary
Observer’s interpretation of the takings clause. In one group
can be placed all those cases— like the one involved under the
car-seizure statute— in which it seems plain as a matter of
Ordinary language that Layman’s Cadillac has been taken
from him and now belongs to a third party, who is usually—
13 ° l a y m a n ’s t h in g s
but not always— some state official.34 In the second group can
be placed all those cases— like the one involved under the
speed-limit statute— in which, though Layman’s thing has di
minished in value, it is still fair to say that it remains Lay
man’s Cadillac, and nobody else’s, at Tim e Three. Cases of the
first type will seem to Ordinary judges to constitute prima
facie instances of governmental taking; situations of the second
type will be derogated as involving nothing more than a
“ mere” regulation for which compensation is not required.
Unfortunately, however, the case-law has thrown up count
less instances that defy classification in terms of our two simple
categories. The problem is that the car-seizure scenario repre
sents only one of the ways in which Layman’s things can be
taken from him by the activist state. In cases of this first type,
not only does the state (a) deprive Layman of his thing, but it
also (b) gives the thing to someone else who thenceforth exer
cises social property rights in it. Yet a moment’s thought indi
cates that condition (b) is not necessary before Layman may
properly complain that the state has taken something from
him. Imagine, for example, that the state, in order to limit
energy demand, simply orders each two-car family to destroy
one of its automobiles posthaste. In such a case there could
be no doubt that standard English permits Layman to assert
that the state has taken his Cadillac from him, even though it
has not given the Cadillac to anybody else. And if a Layman
can properly use language in this way, it follows that an Or
dinary Observer will recognize a prima facie taking not only
when Layman’s thing has been transferred to a third party but
when it has been utterly destroyed by the state as well.
Once again, the distinctive character of this second class of
Ordinary takings— in which Layman’s thing has been de
stroyed— can best be brought out by a comparison of cases that
seem quite similar to each other from the Scientific point of
view. Consider, for example, the relative position of two prop
erty owners— Layman and Speculator—who happen to own
some land in the same part of town. Layman’s land is occu
pied by a Hamburger Heaven which, unhappily, is a very
l a y m a n ’s t h in g s *3*
marginal operation. Indeed, if Layman were obliged to raze

his store to the ground and resell the land for residential
purposes, his total loss would be only $10,000. In contrast,
Speculator’s site, bordering on nearby Highway One, is ideally
situated for a fast-order eatery; indeed, the Hamburger
Heaven folks have recently offered him $100,000 for his lot
while it is worth only $50,000 as a place for houses. Despite
the good offer, however, Speculator has decided to bide his
time and wait for the even better deal he is sure will come.
Unfortunately for both our characters, the town has just
marked out their area as a purely residential zone, in which
all forms of commercial enterprise are forbidden. As a conse
quence Layman loses $10,000; Speculator at least $50,000; and
both sue for compensation under the takings clause.
It should be clear by now that a Scientific judge would ap
proach these two law-suits acutely aware of their similarities. So
far as he is concerned, the town has taken the same right out
of both the property-bundle held by Layman and the bundle
held by Speculator. Moreover, the money loss suffered by
Speculator as a result of the property redistribution is five
times that suffered by Layman. Hence, it would seem that—
other things being equal—Speculator’s claim to consideration
under the compensation clause is entitled to greater attention.
Of course, other things may not be equal. Perhaps the process
costs involved in accurately measuring Layman’s loss are
somewhat lower than in Speculator’s case. Perhaps operators of
hamburger joints are more risk-averse than land speculators,
thereby permitting Layman to advance a weightier Appeal to
General Uncertainty on his own behalf. Nevertheless, it is
far from obvious that these differences will convince all Sci
entific Policymakers to treat the two cases differently, paying
Layman $10,000, while denying Speculator his $50,000.35
Yet this is precisely the law of the United States today.36 In
deed, not only is the law perfectly clear in its different treat
ment of Speculator and Layman, but judges consistently reach
these disparate results without any of the agonizing wiiich
normally accompanies the perception of a peculiarly difficult
problem. Once again, it is the ease with which the judges come
to seemingly un-Scientific results that constitutes the deeper
mystery which lies at the heart of contemporary takings law.
The puzzle can be readily resolved, however, as soon as the
problem is viewed from the perspective of the Ordinary Ob
server. So far as he is concerned, it is easy to see that Lay
man has been deprived of one of his things as a result of the
town’s new zoning law. At Tim e One, Layman had a Ham
burger Heaven; at Tim e Three, Layman’s store is no more;
and so a prima facie case of takings has been established. In
contrast, the town’s new regulation has not deprived Specula
tor of any of the things that formerly belonged to him. Thus,
if a non-lawyer had asked Speculator to describe what he
owned at Tim e One in ordinary language, Speculator would
doubtless have replied: “ That patch of land over there belongs
to me.’’ 37 And despite the town’s new enactment, it is still ap
propriate for Speculator to say the same thing about his land
at Tim e Three. While doubtless Speculator is no longer able
to use his thing in as many ways as he could before, we have
already noted that (in modern America at least) nobody thinks
that one is entitled to use his things in any way he pleases.38
Instead, it will suffice if Speculator can use his land in lots of
ways that others can only undertake with his permission. There
is, of course, much imprecision in a formula invoking the right
to do a lot of things with one’s thing, and we shall soon be
obliged to investigate this formula further.39 For present pur
poses, however, it should be clear that depriving Speculator of
the right to build things like a Hamburger Heaven will still
typically permit him to develop “ his’’ land in any number of
different ways. T o put the point in terms that can be found in
countless judicial opinions, what the town has done is “ merely”
to deprive Speculator of one of the possible uses to which the
land may be put.40 Or, in my terms, it remains fair to say
that the regulation has not deprived Speculator of his land or
any of the other things that belonged to him at Tim e One.
While Layman has established a prima facie case of a taking,
Speculator is merely complaining about a regulation that has
l a y m a n ’s t h in g s
*33
deprived him of one of the many ways in which he can use his
thing.41
Lest one think that the distinction between Layman and
Speculator is “ really” rooted in some deep judicial antipathy
to land speculators, it will be wise to ring one final change on
our Hamburger Heaven scenario. This time imagine that
Speculator sells his land to Proprietor who in turn builds a
Hamburger Heaven that does a thriving business with the
teeming throng traveling on neighboring U.S. 1. After some
time passes, however, the state opens a new interstate, reduc
ing the flood of traffic on the old highway to a trickle. While
Proprietor finds it possible to stay in business under the new
conditions, he has suffered a $100,000 loss as a result of the
state action. Nonetheless, the same American judge who is so
solicitious over Layman’s loss of $10,000 will deny Proprietor
any compensation for his $100,000 injury.42 The reason for
Layman’s recovery is not, then, to be found in some petty
bourgeois prejudice for the small Proprietor, as opposed to the
land Speculator. Rather it is based on the judicial perception
that the challenged state action has deprived Layman of his
Hamburger Heaven while the new road has not taken Pro
prietor’s Heaven away from him.43
It is true, of course, that the road did divert many of
Proprietor’s customers away from his Hamburger Heaven. His
former customers, however, were never Proprietor’s things in
the sense that he could use them in lots of ways-without their
consent, while oThers were obligated to obtain his permission
before using them. Instead the travelers merely represented an
opportunity from which he might prnfit^rmône.nf the things
he might use. It was, foPexample, perfectly plain to Proprietor
(if he were even moderately wrell socialized) that he could not
force passing motorists to stop at his stand; nor could he stop
other hamburger joints from horning in on his customers.
Since Proprietor could not convince a fellow Layman that the
customers were his things during Tim e One, he cannot claim
that one of his things has been taken from him at Tim e Two.
As in Speculator’s case, the new state action has deprived Pro
i34 l a y m a n ’s t h in g s
prietor of some of the profitable ways he could use his Ham

burger Heaven; it has not, however, destroyed the thing itself
in such a way that it could no longer be said to belong to Pro
prietor. And it is this fact of Ordinary language which is de
cisive.
It is important to emphasize how deeply unintelligible all
this is to the Scientific Policymaker. Let us decompose Lay
man’s bundle of rights into two smaller packages—one (marked
“ realty” ) dealing with the raw land on which his Hamburger
Heaven is perched; the other (marked “ fixtures” ) dealing with
Heaven itself. So far as the package marked realty is con
cerned, Layman’s bundle is identical to that held by Speculator
at Tim e One. So far as the bundle marked fixtures is concerned,
Layman is in the same position as Proprietor. Yet Layman
wins and the other two lose, even though the dollar value of
Layman’s loss is smaller than either of the others. Moreover,
this result is not reached by the courts after some complicated
chain of policy-reasoning, but in a series of opinions that bear
the marks of very little reasoning of any kind.44 Why? So far
as any Scientist is concerned, the answer must be that the
judges have attended so little to takings law of late that they
have failed to confront even the most glaring incongruities.
The Ordinary Observer, in contrast, will advance a far differ
ent answer— the cases have provoked so little serious reasoning
because their proper disposition seems so easy and obvious that
any elaborate argument is superfluous.
It is, of course, the present thesis that there is a sense in
which both sides are correct in their assessment of the existing
legal situation. On the one hand, there can be no doubt that
the Layman-Speculator-Proprietor problems are easy from the
Ordinary Observing point of view and so unlikely to provoke
prolonged and elaborate justification. On the other hand, as
a result of our long neglect of the foundations of takings law,
as well as the gradual increase in the Scientific character of the
legal culture, these “ easy” cases— and the unreasoned judicial
responses they usually engender—begin to trouble the modern
legal sensibility. Instead of taking the lack of judicial argu
mentation to suggest the presence of bedrock certainties, the
*35
(Scientific) suspicion arises that the lines drawn by the Layman-

Speculator-Proprietor trilogy are based on nothing more than
arbitrary fiat— whose true character can be readily unmasked
by the most elementary Scientific analysis.
It is not, however, the main point of this chapter to assess
the power of the Scientific Policymaking challenge to the Or
dinary Observing ideas that have for so long reigned supreme
in Anglo-American law. Instead, my aim is to reconstruct sym
pathetically a form of thought which is no longer as accessible
to us as it once was (and as it may once more become). Hence,
it will pay to reflect one last time on what precisely it is that
Layman—and not Speculator or Proprietor— has lost as a re
sult of the town’s new zoning law. After all, even at Tim e
Three, it remains possible to point to a particular object that
remains Layman’s land, and particular objects that formerly
constituted Layman’s hamburger joint. Indeed, it may be pos
sible to point to every physical object that formerly constituted
Hamburger Heaven and say each still belongs to Layman.
So what sort of thing is it that Layman has lost when the state
closed down his Hamburger Heaven?
The answer, from the Ordinary Observer’s point of view,
does not seem too difficult. In engaging in property-talk with
one another, ordinary people usually are not interested in
enumerating a catalogue of physical objects that may or may
not be theirs. Instead, Ordinary property talk is important be
cause it provides a conceptual framework in which Laymen
may understand the patterns of their legitimate social inter
action and so conduct their lives in a socially respectable way.
Hence it is critically important, both to Layman and his peers,
whether or not Layman’s land and Layman’s hot plates add
up, socially, to Layman’s Hamburger Heaven. If they do, Lay
man (or his delegate) will be immersed in a complex pattern of
interaction that would be entirely absent from his social uni
verse if all he owned were some land, some hot plates, and
other restaurant equipment. Thus, by transforming a func
tioning Hamburger Heaven into an assortment of random ob
jects, the state has deprived Layman of an important way in
which he understands himself and his relationship to his
world. When the state expels Layman from his Hamburger

Heaven, then, it would be peculiarly obtuse for an Observing
judge to deny compensation on the grounds that all physical
objects remain Layman’s things, even if he can, at'modest cost,
rebuild his very same Heaven on a new square of earth after
selling his old parcel. For the ultimate objective of the Or
dinary Observer’s interpretation of the Constitution is pre
cisely to protect expectations of the well-socialized citizens who
relate to their world in the ordinary way. And it is this rela
tionship which is at risk when the judge observes that Lay
man’s Hamburger Heaven has been destroyed by state action.
Layman’s things are social property, not merely packages of
legal rights existing solely for the convenience of the legal
analyst.
In saying this, I do not mean to suggest that if the state
leaves Hamburger Heaven intact as an operating enterprise
and merely takes one of the Heavenly hot plates, it should be
free from the burden of compensation under the Ordinary in
terpretation of the takings clause. Even though it is almost
certainly true that Layman’s larger relationship to his world
is not dependent upon his continuing control over one hot
plate, it remains true that the state has deprived him of one
of his things, and this should be enough to establish a prima
facie case of a taking.45 My point here is that Ordinary judges
(as revealed by their actual decisions) respect all the levels of
generality upon which laymen understand and describe their
relationships to things, and are prepared to intervene on be
half of all of Layman’s things, whether they be relatively hard
and solid objects, like a hot plate, or some artifact whose social
identity as a thing is determined more by the distinctive way
in which a variety of hard and solid objects are socially pat
terned, like Hamburger Heaven.
Rendering a Thing Useless
Extending the class of prima facie takings to include cases
in which one of Layman’s things has been destroyed does not,
I think, place any significant strain upon an Ordinary inter
137
pretation of the takings clause. Just as it makes perfect or

dinary sense to say that Layman’s thing has been taken from
him when his car is shipped to Montana, so too an Ordinary
English speaker can say that same thing with the same con
viction to describe the consequences of a state decision that
destroys Hamburger Heaven. A more difficult problem arises,
however, as soon as one presses onward to consider whether
our recently expanded class of prima facie takings cases still
remains too narrow: Is it possible for an Ordinary judge to
conclude that the state has taken one of Layman’s things, even
though it has neither transferred nor destroyed it? 46
I think so. T o see why, let us return to Layman’s Cadillacs
and consider a third device by which the American govern
ment might wish to attain energy independence from hostile
foreign powers. Imagine that a bright policy analyst discovers
that the cost of shipping half of America’s cars to Montana is
astronomical, as is the cost of policing a twenty-five-mile-an-
hour speed limit. Consequently, he proposes that Congress pass
a law requiring two-car families like Layman’s to keep one of
their cars permanently parked in the garage for the duration
of the crisis. Assume, moreover, that the analyst has the fore
sight to forbid Layman from selling his immobilized Cadillac
to anybody else, thereby assuring that the car will not slip its
way back unnoticed into the transportation stock. As a con
sequence of this new statute, Layman will, by hypothesis, suf
fer some familiar grievances: although the value of his re
maining Cadillac has increased from $5000 to $6000, this
thousand dollar increment is not sufficient to offset completely
the S5000 loss he has suffered on his other car. And so, once
again, the Ordinary judge is obliged to determine whether the
new statute has so changed Layman’s social relationship to the
car that it is no longer fair to say that it remains Layman’s
Cadillac.
It should be plain that this question will seem a good deal
more difficult to the Ordinary judge than the cases of prima
facie taking we have previously discussed. When Layman’s
Cadillac was shipped to Montana or simply destroyed, there
could be no doubt that the Ordinary sentence, “ Layman’s car

has been taken from him,’’ could be appropriately applied in
common speech. In the case of compulsory garaging, however,
it still makes some Ordinary sense to say that the Cadillac re
mains Layman’s thing at Tim e Three. There it would be, all
right, clogging up Layman’s garage rather than anyone else’s—
generating tax liabilities and maybe even damage suits for him
if it is an attractive nuisance. Moreover, if Layman tried to
unload his white elephant in the black market, one could
readily imagine a policeman discovering the crime with the
exclamation: “ Hey buddy, what are you doing driving that
car! T h at’s not your car. It’s Layman*s Cadillac!’’
Yet while it sometimes makes Ordinary sense to identify the
car as Layman's thing there is something very Pickwickian in
volved in the property talk at issue here. T o put the problem
dramatically, consider the following Ordinary scenario:
Friend: Layman, I should like to make you a gift of this
beautiful new Cadillac.
Laym an: Wonderful! What a beautiful machine! Thank
you very much!
Friend: It's nothing really.
Laym an: You’re too kind. Now I wonder what I shall do
with this fantastic gift.
Friend: Hold it. T he Cadillac is yours so long as you keep
it in your garage. No other use is permitted to you.
Laym an: Is this some sort of joke? Why would I want to
keep a useless car in my garage?
Friend: But aren’t you pleased that the car is yours for
ever more?
Laym an: If that’s what you mean by ownership, I want no
part of it.
In ordinary life, of course, this conversation would end with
Layman refusing the “ gift” of the car, retaining his Ordinary
conception of ownership intact. Under the compulsory garag
ing statute, however, the Layman is given no such choice. Like
139
it or not, he has been saddled with the car. Hence, the problem
for the Ordinary Observer: On the one hand, there remain
contexts in winch it makes perfectly good sense to identify the
car as Layman’s Cadillac even after the compulsory garaging
statute has been enacted; on the other hand, there is an Ordin
ary sense in which it is nothing but a bad joke to say that the
Cadillac remains Layman’s thing at Tim e Three. We are, then,
confronted with a “ hard case’’ from the Ordinary point of
viewr, since its consideration forces to the surface ambiguities
in Ordinary talk which are generally irrelevant to the conduct
of everyday life. Despite the difficulty, however, an Ordinary
judge cannot remain forever in a state of perplexity. The con
stitutional text makes the decisive question whether Layman’s
thing has been “ taken.’’ And so the Ordinary judge must
choose in the end between the divergent implications of Ordin
ary talk as he tries to make sense of a constitutional text and
apply its command to the case before him.
It is at this point that the Ordinary theory of judicial role
becomes of the first importance. A deferential judge will adopt
a relatively “ strict” construction of the text, restricting his con
ception of a prima facie taking to the easy cases which would
plainly be called takings in ordinary life. For him, the decisive
fact is that before Layman ever came to court, officials in the
political branches considered his plea for relief and rejected
it as unmeritorious. As a deferential judge, he will not upset
this presumptively well-ordered judgment unless its lack of
congruence with Ordinary talk and expectation is plain.
In contrast, an activist judge w’ill not trust the political
branches to elaborate unaided the dominant structure of insti
tutionalized expectation even in hard cases. Instead, he will—
to one degree or another—scrutinize the divergent tendencies
of Ordinary usage in the hope of observing more sensitively
the subtler patterns of social expectation which (he assumes)
the linguistic tensions reveal. For him, the Pickwickian sense
in which the car remains Layman’s thing serves as a signal that
there is something deeply wTrong with the compulsory garaging
statute. The problem is that, as a result of the compulsory

garaging statute, it seems likely that Layman will never be
advantaged by the attribution to him of a property relation
ship to “ his” car; instead, Layman’s special relationship to the
car threatens to serve exclusively as a reason for imposing
burdens upon him which he would otherwise have avoided .47
Yet it is not for the sake of assuming extra burdens that
property-talk is of such importance in Layman’s effort to con
struct an intelligible relationship between himself and his
social reality. While the ordinary person understands that
certain liabilities may follow if he claims something as his, the
principal point of property_talkJs.to .permit.Layman to iden
tify some things in his environment that he may exploit to his
advantage without incurring adverse social sanction. It is for
"this reason that a person who says JTrom now on, this car is
yours so long as you don’t use it in any way that you find use
ful,” exhibits either a bad sense of humor or a complete ignor
ance of the point of property-talk in American society. This
conceded, it follows that the state has undercut Layman’s ex
pectations regarding “ his” thing no less surely by passing the
garaging statute than it would have if it had simply destroyed
the car or shipped it to Montana. T o put the point in a more
legalistic way: once the judge is willing to indulge the activist
premise that judges are sometimes institutionally competent to
sift the fine grain of ordinary usage, he can with little difficulty
construe the constitutional text that insists on a “ taking” to
embrace “ hard” cases in which the state renders a thing useless
by declaring these situations analogous to “ easy” cases of trans
fer or destruction.48
While this argument by analogy will not, I think, seem
dubious for those even slightly inclined toward activism, I
have thus far couched the argument in terms that require a
very problematic finding of fact from the activist Ordinary
judge. Before a judge could find that the state has taken Lay
man’s thing by rendering it useless, it would seem that he must
confront the disquieting fact that many things can be exceed
ingly valuable to one particular Layman, yet worse than useless
to another, depending upon their particular goals in life. Even
so far as the Cadillac is concerned, it is barely conceivable that
a particular Layman will find the car a thing of such beauty
that it will seem worthwhile (to him) to keep it as a kind of
free-standing sculpture; or perhaps even an immobilized Cadil
lac will still serve as a valuable status symbol; or perhaps Lay
man’s children will find it an admirable playhouse; or. . . .
And while the Ordinary judge might find these remaining
potential uses sufficiently rare or trivial to warrant the con
struction of a per se rule requiring the compensation of all
Laymen faced with the “ compulsory-garaging” statute, it is
easy to imagine cases in which this kind of rough justice will
seem very rough indeed.49 Thus, to evaluate the merit of this
third “ harder” category of takings cases, the Ordinary judge
must sometimes undertake a forbidding inquiry into the sub
jective tastes and values of the particular Layman whose things
have arguably become useless.
Fortunately, however, it should prove possible in almost all
cases to devise a satisfactory solution without undertaking
such a problematic judicial enterprise. For unlike our hypo
thetical compulsory-garaging statute, the law does not usually
deprive Laymen of the right to sell their things on the market
place. And when alienability is permitted, judges will generally
be able to determine whether a thing has been rendered use
less simply by looking at the price it fetches on the market. If
the market price remains substantial, this means that someone,
somewhere, finds Layman’s thing to have positive value. Thus
if Layman does not happen to find the thing intrinsically
valuable, he will still see a point in claiming it as his for its
resale value. In contrast, if the market value of the thing ap
proaches zero,50 then there is good reason to believe that Lay
man would think it merely a bad joke for him to be told that,
despite the new statute, the thing remains his. For it is pre
cisely Layman’s point that he will simply abandon his claim
to the thing, and no longer treat it as his own, if it remains
burdened by its new restrictions.
Having come this far in our theoretical argument, it is pos
sible to understand a number of peculiar features of present-

day legal doctrine that otherwise are deeply puzzling. For ex
ample, in assessing compensation claims for property that has
neither been transferred or destroyed by state Action, modern
Judges are only interested in the percentage by which a thing’s
market value has declined between Tim e One and Tim e Three,
rather than the dollar amount of the loss that, has been suf
fered.51 Thus, if a thing’s value drops by a thousand dollars
from $10 10 to $10, all but the most deferential judges will
concede that a prima facie taking has occurred and anxiously
consider whether the taking can be justified; in contrast, if a
thing’s value diminishes from $100 million to $90 million,
even the most activist judge will dismiss the takings claim as
frivolous.52 Indeed, despite the fart that judges speak in terms
of the percentage of diminution in value, it seems that only
when the absolute value of Layman’s thing approaches zero
can one be at all confident that judges will be satisfiecTthat a
prima facie taking has occurred.53 As Michelman puts it, “ the
[diminution of value] test poses not nearly so loose a question
of degree; it does not ask “ how much’’ but rather (like the
physical-occupation test) it asks ‘whether or not’; whether or
not the measure in question can easily be seen to have prac
tically deprived the claimant of some distinctly perceived,
sharply crystallized, investment-backed expectation.” 54 T o put
the point in terms of the 80 percent loss suffered by our un
happy Marshans, their case would seem more promising to the
professional eye if instead of their land declining from $25,000
to $5,000, their marsh had originally been valued at $250 an
acre and then depreciated to $50. This of course is precisely
what one would expect from judges who are attempting to as
certain whether it seems only a bad joke to assure Layman
that the thing remains his own despite the new governmental
regulation.55
Apart from rendering intelligible the general drift of cases
in which a taking is found on the basis of a severe diminution
of market value, an Ordinary Observing approach makes in
1 43
telligible that aspect of the formula that has most troubled

thoughtful observers.56 Several writers have noted the puzzling
fact that in assessing the degree of financial loss, the judges
never consider the extent to which the claimant’s entire port
folio has suffered a diminution of value, but only seek to deter
mine the extent To which the price of the particular tfling sub
ject to regulation lia s plummeted toward zero. Y et if, by in
voking the diminution of value formula, the courts were trying
to isoTateTrucTely thosc~wlio havelnost suffered from legislative
redistributions, this form of myopia could hardly be justified.
For it predictably leads to a system under which many people
suffering relatively small losses in total wealth recover while
many suffering large losses go entirely ignored. Layman may
recover $5000 when his car is immobilized but may be without
a remedy when his house plummets in value from $75,000 to
$25,000 as a result of the enactment of some “ mere” regulation.
It is, I think, far from obvious that such disparate outcomes
could be defended in any way that a Scientific judge of the
Kantian variety would think petsuasiYfi^ And so far as a
U tiHtarian j udge is concernec^MichelmarTîas provided us
with a telling account of the dnhculty of justifying the pre
vailing judicial concentration on the extent to which the par
ticular thing, rather than the entire portfolio, has diminished
in value:
The worth of this kind of analysis in a utilitarian compen-'

sation scheme depends on a number of assumptions which,
while not void of plausibility, are surely debatable. The
assumptions are (1) that one thinks of himself not just as
owning a total amount of wealth or income, but also as
owning several discrete “ things” whose destinies he con
trols; (2) that deprivation of one of these mentally circum
scribed things is an event attended by pain of a specially
acute or demoralizing kind, as compared with what one ex
periences in response to the different kind of event con
sisting of a general decline in one’s net worth; and (3) that
events of the specially painful kind can usually be identi

fied by compensation tribunals with relative ease.
Of the three propositions, the second surely is the most
suspect. The first seems self-evident, and the third seems
probably true.58
As soon as one shifts from the Scientific to the Ordinary

theory of judging,59 however, the legal scene is quite trans
formed and a dark cloud of suspicion no longer surrounds the
law’s traditional concentration on the things diminution in
value.60 In contrast to his Scientific Utilitarian counterpart, an
Ordinary Observer is not required to indulge Michelman’s
second, “ suspect” assumption that the “ deprivation of one of
these mentally circumscribed things is an event attended by
pain of a specially acute or demoralizing kind.” Instead, with
out pretending to any effort at felicific calculation, it is enough
for the Ordinary judge to reason from Michelman’s first, “ self-
evident” assumption that the ordinary person “ thinks of him
self not just as owning a total amount of wealth or income but
also as owning several discrete ‘things.’ ” For if this is a “ self
evident” fact about the structure of Ordinary lay thought, the
Ordinary judge, as a matter of basic principle, will find no
difficulty in incorporating it into legal analysis— indeed, to do
so will seem to him the very essence of judicial principle. Since
the typical Layman thinks of himself as owning things, the
Ordinary judge can readily accept a “ diminution of value” test
which indicates whether particular things have been rendered
useless without perceiving the need to consider whether aggre
gate personal wealth has suffered an extreme decline. Un
fortunately, while Michelman is obviously searching for the
key which will unlock the deeper meaning of existing doctrinal
categories, he can never quite overcome his fascination with
the Scientific approach, especially its Utilitarian variety,61 to
bring himself to contemplate the possibility that courts may be
understanding their mission in a way that deeply challenges
the premises of his own analysis. As a consequence, Michel
man’s doctrinal discussion takes the form of an earnest attempt
1 45
to weave a Scientifically respectable cloak for otherwise shabby

judicial doctrine. The fact that Michelman himself recognizes
the cloak to be awkward and ill-fitting is, of course, a very high
tribute to his scholarly integrity. Even more important, it is a re
vealing indication of the increasing reluctance of sophisticated
American legal scholars to take Ordinary Observing seriously.
For surely it is surprising that a scholar of the first rank—who
manifests no desire to reform existing judicial doctrine 62—
nevertheless devotes himself to an elaborate Scientific analysis
without noting the existence of an alternative legal analytic
that will provide far more compelling support for the juridical
status quo.63 Why would a leading scholar disdain a comfort
able and close-fitting garment for one so awkward and ill-
fitting? Is it simply a matter of chance that neither leading
courts nor modern commentators are capable of providing a
convincing elaboration of the premises that seem nevertheless
to structure constitutional doctrine? Or is it a sign that Or
dinary Observing is losing its hold upon the American legal
mind?
I shall fumble with these large questions in the concluding
chapter. Since I do not pretend to answer them even there, I
am happy to invite the reader to think about them on his own
while we go about the business of completing a sketch of the
Ordinary interpretation of the takings clause.
L a y m a n ’s T hing H as B e e n T aken by the St a t e
Thus far we have merely enumerated the three basic ways in

which one of Layman’s things may be taken from him— the
thing may be transferred to a third party; it may be destroyed;
it may be rendered useless. But even if Layman is deprived
of his things in one of these ways, he may nevertheless fail to
make out a prima facie case of a taking. The fact that a thing
is taken constitutes a necessary, but not a sufficient, condition
for recovery. T o see this, let us return to Layman and his
Cadillacs. This time imagine that, despite the American gov
ernment’s efforts, the Arab oil cartel gets even tougher with
the West, raising the price of gasoline to ten dollars a gallon.
As a consequence, neither Layman nor anybody else is inter

ested in operating a gas-guzzling Cadillac. What was once Lay
man’s Cadillac has suddenly become only a piece of junk— to
be sold to a scrap dealer for recycling.64 Nevertheless, I take
it that no lawyer would think the United States government
has a constitutional obligation to pay for his loss, despite the
fact that Laym an’s Cadillac has been rendered useless as a
result of the change in relative prices.65 It is not enough that
one of Layman’s things be taken; it isT ecessM yth at it be
taken in a way in which the state’s involvement is judged sig
nificant. T o put the point in the conventional legal way, there
can be little doubt that the takings clause—like so much else
in the Constitution— is understood to constrain only state
action and not analogous conduct attempted by private
parties.66
It should be emphasized, moreover, that the Ordinary Ob
server’s conception of state action will be quite different from
that which will impress a Scientific Policymaker. From the
latter’s point of view it is apparent that officials of the modern
state act to control the marketplace in manifold ways—
weaving a web of taxes, subsidies, regulations so complex as to
challenge the understanding of the most acute analyst. The
Ordinary Observer, in contrast, will be impressed by the fact
that the typical middle-class Layman is quite unwilling to
spend the enormous time and effort required to master the
complex state-market relationship that obtains in contempo
rary society and apply this understanding to the evaluation of
state responsibility for particular events in his environment. As
a consequence, the Layman’s understanding of the extent of
state involvement will be shaped by a set of cultural cues that
appear on the surface of ordinary life. For example, Layman
has been taught to associate changes in prices with ^Fê""ec?5?,,
T o m ic system while changes in laws are associated witlPthe
state. Thus, if the price of gas increases, Layman will not
attempt to move beyond the surface of things to determine
whether the increase is to be attributed to the Arab cartel, a
presidential decision to increase tariffs, or a multitude of other
*47
factors. Instead, he will invoke the simple rule of thumb that

price changes are typically generated by market forces for
which the state does not assume particular responsibility. In
contrast, if gas is allocated through ration-books or explicit
bureaucratic order, the state has been implicated in the deci
sion in a way Layman can readily recognize. It follows that
if the judge wishes to apply the state action doctrine in a way
consistent with Ordinary Observing, he will refuse to apply
the takings clause to a multitude of situations in which the
state’s guiding hand is invisible to the Layman’s eye, limiting
the clause to those contexts in which official power assumes a
form that ordinary people have been taught to recognize as
characteristic of state involvement.
From the point of view of the Scientific Policymaker, of
course, such a dramatic limitation of the clause’s scope is in
defensible. So far as he is concerned, there are a variety of
market and nonmarket ways of effectuating a Comprehensive
View 67 and no a priori reason to believe that the justice of
compensation should be fundamentally affected by the par
ticular form of control selected. Thus, the Layman’s exclusive
concern with forms of state intervention that seem “ law-like,”
rather than “ market-like,” is to the Scientist merely a mani
festation of deep ignorance which appears a peculiarly un
likely candidate for promotion to the status of constitutional
truth.
It is therefore very revealing to recognize that none of the
government’s “ behind-the-scenes” efforts to manipulate the
price system have generated serious takings issues, while an
alogous efforts raise acute difficulties as soon as they assume a
law-like form on the surface of ordinary life. For example,
while modern government has self-consciously manipulated
prices in a wide variety of hidden ways without serious chal
lenge, President N ixon’s decision68 to control prices by
bureaucratic intervention into ordinary life predictably gener
ated judicial consideration of the takings issue.69 Indeed, some
of the great “ hard cases” of takings law can be understood as
efforts by T h ^ L o u rt to assess the extent to which Layman
would associate the state, rather than the market, with the
taking oT~one of his things. Thus, in Eureka M in es70 the
Court was obliged to consider whether a wartime bureaucratic
order closing the gold mines, so as to free scarce labor for
higher priority occupations, constituted a taking requiring
compensation. While the majority decided against compensa
tion, I am quite confident that everyone would have found
Eureka far easier if the government had pursued its objective
by behind-the-scenes manipulation of gold prices instead of
embarking upon a set of bureaucratic orders that the ordinary
citizen naturally associates with the state.71
The actions of publicly owned enterprises raise similar dif
ficulties. Once again, while the state regulates enterprise ac
tivity in a wide variety of ways, it declares its presence to the
Layman in a special way when its own officials actually operate
a state-owned firm. Although, from a Scientific point of view,
the differences between the Tennessee Valley Authority and a
privately owned (but publicly regulated) power company may
seem a matter of degree, the Observer will detect a funda
mental difference. When Layman interacts with a public
company in his daily life, he recognizes by the name on the
door that he is dealing with the state; in contrast, when deal
ing with a private (though heavily regulated) company, he
perceives the state as playing its normal backstopping role—
in which it cannot so readily be held responsible for the con
tent of the “ private” transaction. Given our thesis, then, it is
significant that with the expansion of state-owned enterprise—
most notably in the operation of airports— the courts haê
— hppn forced to deal with an increasing number of “ inverse
condemnation” suits 72 initiated by Laymen who claim that
action undertaken by one or another state-sponsored activity
has triggered the compensation clause.
Here^'hmvever, courts have been relatively cautious in ex
tending the compensation requirement— for reasons which are
not, I think, difficult to see. It is in dealing with the status of
state enterprise that an Ordinary interpretation of the takings
149
clause most clearly threatens the new economic order wrought

by Roosevelt, whose legitimacy forms the very bedrock of post-
New Deal constitutional law. For is it not a reasonable fear
that requiring compensation whenever Laymen see the state as
involved will cripple— if not kill— the activist policy in
augurated by the New Deal? Indeed, in one of the great
opinions by Justice Brandeis, shaping post-Roosevelt consti
tutional jurisprudence, this anxiety can be quite readily de
tected.73 As the memories of the Old Court of the 1920s and
1930s fade, judges have, however, gradually expanded the con-
stitutional idea of state involvement even in the takings area 74
— though the restraint with which the judges work contrasts
sharply to the innovative way they have expanded the concept
of state action Tn their effort to broaden the scope of the civil
liberties protected by the equal protection and due process
clauses.75
It should be emphasized that, as in all else that concerns
Ordinary Observing, we are not dealing here with a judicial
effort to generate a coherent conception of state involvement
from a set of highly abstract principles but an attempt to ex
plicate the evaluative structure into which middle-class Amer
icans are in fact socialized. Doubtless there have been times
and places in which no distinction between state and market
institutions has been made; 76 doubtless the prevailing ordi
nary conception is itself changing as the economic order de
parts, in increasingly obvious ways, from the paradigms of
neoclassical political economy. Nonetheless, I think it remains
true that middle-class children are still taught (both by word
and deed) that there is a very great difference in what they
can expect from market and nonmarket institutions; that,
moreover, they cannot hold political authority directly ac
countable for any and all changes in the market system, but
only for those in which the state seems involved in some
special way. And so long as this is true, the requirement of
special state involvement represents an additional, distinct
burden that must be satisfied before an Ordinary Observer
will recognize that a taking has occurred for which, prima

facie, the state bears a constitutional responsibility for com
pensation.
L a y m a n ’s T h ing H as B een T aken by th e St a t e
W it h o u t O r d in a r y J u st if ic a t io n
Once Layman has shown that the state has taken one of his
things, he may reasonably expect an Observing judge to
recognize that a prima facie case for compensation has been
established. In saying that Layman has made out a prima facie
case, I mean something that is very familiar to lawyers, how
ever much the concept’s structure may legitimately puzzle
philosophers.77 Having advanced a prima facie case, Layman
may expect to win provided that nothing more is said by the
other side in justification of the taking. If, however, the state
does come forward with a justification for its action, then Lay
man can no longer expect victory without showing why it is
that the state’s effort at justification is unsatisfactory. T o put
the point in terms of our framework, a child growing up in
middle-class America learns that while he may use his things
in many ways, he is not entitled to use them in ways a well-
socialized person should recognize as unacceptably harmful to
others.78 Thus, Layman may not properly complain about a
taking if the taker can justify his action as necessary 79 to re
strain Layman from acting in a way he ought to recognize as
unduly harmful. And if this is true in ordinary life, it is—so
far as the Observing judge is concerned— also true in constitu
tional law. The task, then, becomes one of giving a determinate
structure to the elusive idea that Layman cannot use his things
in ways a well-socialized person ought to recognize as unac
ceptably harmful. While this formula is even vaguer than the
others we have encountered, its practical utility ought not to
be discounted. Every day it is called upon by well-socialized
Americans as they control themselves on countless occasions
in which the use of their possessions would otherwise generate
acute social stress.80
Nevertheless, it remains true that sometimes social standards
*5*
are sufficiently ambiguous that one group of self-interested

Laymen will believe themselves justified in using their things
in ways that another group will consider unjustified. It is at
this point that conflict becomes manifest; since the conflicting
groups are composed of Laymen who are well-socialized, how
ever, it should be expected that each will seek to interpret
dominant communal practices in a way that will put them in
the right, their antagonists in the wrong.81 If the Laymen
cannot resolve their dispute by other means, they may ulti
mately be driven to the legal system to gain relief. If they go
directly to the courts, their conflict over the proper interpreta
tion of communal practices will take the form of some kind of
tort or contract action; if they go to the legislature, one party
or the other will attempt to make more precise, through
statutory enactment, the character of the actions that well-
socialized Laymen should recognize as unduly harmful to
others. This, at any rate, is the relationship between law and
social conflict that we shall impute to the judge who thinks
like an Ordinary Observer.
Given this understanding, the final interpretative task pre
sented by the takings clause is rather easy to set out in general
terms. The problem arises because sometimes Laymen wish to
obtain compensation despite the fact that their loss is occa
sioned by a statute grounded principally in a legislative judg
ment that they have been acting in ways unbecoming well-
socialized individuals. Since, from an Ordinary Observer’s
point of view, it is quite justified to take somebody’s thing
away from him if it is necessary to stop him acting in a way
he should recognize as socially unacceptable, legislative action
capable of Ordinary justification does not require compensa
tion despite the fact that a prima facie taking has occurred.
Hence, it is necessary for the judge to discriminate between
actions capable of Ordinary justification and those which de
prive Layman of his things without suggesting he has been
using them in ways a well-socialized person should recognize as
unduly harmful.
As should be obvious by now, it is possible to classify judges
according to the extent to which they are willing to discern,

and defer to, legislative judgments that a taking is capable of
Ordinary justification. There are, nevertheless, cases at both
poles that seem free from doubt. Consider, for example, the
standard highway building case. At Tim e One, observe Lay
man engaging in a perfectly legitimate activity on his property
—minding his business or tending his garden. Nevertheless,
the Highway Department takes his things away from him at
Tim e Two— not because he has been acting badly but be
cause his land is particularly flat and therefore relatively
cheap for road building. Since Laymen in their daily lives do
not generally condemn each other simply for owning flat land,
it follows that the Observing judge will find the taking lacks
Ordinary justification and so requires compensation.
At the other pole, consider the takings problem that would
be raised by a legislative decision prohibiting the sale or pro
duction of cigarettes because of the serious danger they cause
to human health. Here, every Layman has from early childhood
been taught that he is not entitled to use his things in ways that
seriously endanger the lives of others. This recognition may
not be enough, of course, to label the sale and manufacture
of cigarettes as a plainly improper activity for a well-socialized
person, especially when smokers give their consent “ freely” to
their eventual destruction. T he risk of death involved, how
ever, does make the case sufficiently problematic from the
Layman’s point of view to place it in the gray area of socially
questionable conduct. Thus, even though the cigarette traffic
is permitted at present (Time One), children are taught that
it is better to refrain, smokers are often asked to desist from
their habit in public places, sellers are forbidden to hawk their
wares on television and are sometimes challenged—both in
public and in private— to justify their socially suspect conduct.
Consequently, if a ban on the cigarette trade were imposed at
some future Tim e Two, an Observing judge would look at the
takings issue far differently from the one generated by the
standard highway building case. Viewing the statute against
the background of evolving social practice, an Observing judge
153
would have little difficulty understanding it as an attempt by

legislators to express the developing concept of socially harm
ful conduct rather than as an assault on Layman’s things with
out Ordinary justification. Hence the fact that our hypo
thetical anti-cigarette statute rendered millions of dollars in
company plant valueless will be dismissed by Observing judges
as merely a noncompensable cost arising from the abatement
of a “ public nuisance,’’ rather than the source of a legitimate
grievance raised on behalf of “ unoffending property [that] is
taken away from an innocent owner.” 82 Or so thought the
elder Justice Harlan in 1887, as he denied compensation to
the distillers and brewers of Kansas whose plants were trans
formed into junk by the enactment of a state prohibition
statute. And this too will be the fate of cigarette manufactur
ers today, so long as Ordinary Observing holds sway.83
And now for the harder cases. At least for the present, the
Supreme Court seems unwilling to question the legislative
judgment that a well-socialized person ought not use his prop
erty in a way that he has reason to know will cause a great
deal of inconvenience to the uses that his neighbors are al
ready making of their things. From Euclid v. Am bler to
Village of Belle Terre v. Boraas, the Court has been extremely
deferential to legislative attempts to define more precisely the
Observer’s notion ot being a good neighbor.84 Nonetheless,
even the most deferential judges have found cause to consider
whether the political process has overstepped its rightful
bounds. The classic case that presents the problem concerns
the brickworks that earlier had been located in the rural out-
lands within a setting of adjoining uses that were not then
inconsistent with industrial activity. A generation or two later,
however, the scene has been transformed. Nearby farmers have
sold to developers wrho have sold to suburbanites who wish to
restrict the brickyard through zoning in such drastic ways as
to terminate its operation. Since a taking of the brickyard has
occurred, the only remaining question is whether the owner
of the works is using his thing in a way he should, as a well-
socialized person, recognize as harming others.
i54 l a y m a n ’s t h in g s
And it is at this point that even a deferential judge may

well inquire with some anxiety whether the Layman’s notion
of being a good neighbor is sufficiently expansive to provide an
Ordinary justification for the taking. It is simply not the case
that we teach our children, or expect ourselves, to delve deeply
into the future in order to satisfy ourselves that we are using
our things in a way that will not cause undue harm to others.
So long as Layman is not using his things in a way that unduly
endangers others in ways reasonably perceptible to the person
with ordinary foresight, he is commonly entitled to use his
things to pursue his own interests. Indeed, if one were to in
sist upon foresight that spans a generation, this would trans
form the institution of property as Laymen now know it. For
it should be recalled that when something is Layman’s, it
means that he can appropriately do lots of things with it. Yet
if any use is to be deemed harmful if it may conceivably harm
someone in the remote future, the conscientious Layman must
regretfully conclude that he ought in fact do nothing with his
things unless he spends a great deal of time gazing into
crystal balls far more accurate than those of present manu
facture.
This is not to say that a Layman is never expected to take
account of the harms that his actions will cause in the future.
Railroads, for example, will not be heard to complain when
they are obliged to construct safe crossings in the towns they
themselves were instrumental in bringing into existence.85
Generally speaking, however, when the future is not clear to
ordinary common sense, Layman need not desist from using his
thing in the way he desires on the off-chance that time will
prove his actions harmful to others. In short, at the time Lay
man began his brickworks, he could not plausibly be said to
be acting in a way inappropriate to the well-socialized, middle-
class American. Nor can it be said that the late-coming subur
banites were ignorant of Layman’s operation at the time they
arrived on the scene. As a consequence, the courts have had
great difficulty coming to terms with statutes thatseeks~to
eliminate “ nonconforming uses’" outright— though they have
*55
no trouble at all with legislation that merely requires Layman

toTefrain from cxpan diiv^ &it scale^TTusoperations in a way-
that would further damage the interests of neighbors whose
presence is an accomplished fact.86
The brickworks problem has been with the law for a very
long time. Only recently, however, has a second area even be
gun to seem problematic to the Ordinary judge. I refer to the
notion that a well-socialized Layman ought to desist from
using his things not only when they cause harm to the posses
sions of his human neighbors (as wfell as their domestic ani
mals) but also that the Layman should be taught to refrain
from causing undue damage to things like Nature or T rad i
tion, conceived as entities demanding respect quite apart from
the interests of present and future human beings. It is not
difficult to detect such strains in the political and legal dis
course generated by the movements for environmental and
historical conservation.87 Nonetheless, it is informative that
these groups tend to grasp at the human interests at stake
whenever this seems even remotely plausible. If, however, one
turns to the principal means for socializing the next genera
tion, especially the schools and television, conservationist
themes— particularly the need to respect Nature in its own
right—are presented far more explicitly than is the case in
policy discussion amongst the present generation of adults.
Given these facts, exceedingly deferential Observing judges
may already be willing to endorse legislative action grounded
on the idea that wrell-socialized individuals are not entitled to
use their things in a manner that damages Nature (or T rad i
tion) in certain striking ways.88 Or they may seize upon the
merest hint of damage to human interests to declare the taking
justified.89 Those less restrained may, in contrast, continue to
demand compensation on the basis of the relatively unprob
lematic homocentric conception of harm into which they were
raised.90 Or even more significant, the conscientious judge may
be sufficiently impressed with the difficulty of identifying
dominant social norms at a time of great stress that he may
feel called upon to propose a Policymaking answer to the com
pensation question, at least so far as it deals with environ

mental regulation. While it is possible to detect movements
in this direction,91 it is too early to say authoritatively that a
Scientific Policymaking trend has been established. Nonethe
less, if there is a Scientific revolution in the making, it is only
to be expected that the first signs should manifest themselves
here, where Ordinary conceptions of justification are most in
flux. And so it is that we come upon one of the deeper legal
paradoxes attendant upon the environmental revolution: a
movement that seeks to restore Nature to its proper place may
well serve as one of the catalyzing events that inaugurates the
triumph of Artifice in legal thought.
L eg al P ro perty and S o c ia l P r o p e r t y
Thus far, I have avoided needless complexities in order to

present the Ordinary interpretation of the takings clause in
its simplest possible form, in which recovery is granted on a
showing that one of Layman’s things has been taken by the
state without Ordinary justification. It is necessary, however,
to discuss several complexities before even a preliminary can
vass of the significant practical and theoretical issues may be
concluded. Moreover, it is only by extending the analysis that
we shall come to terms with what is both the most important
and most_mysterious writing in takings law—-Mr. Justice
Holmes’s opinion, for the Supreme Court, in Pennsylvania
TloafCompany v. M a h o u t
Before scaling Everest, however, we shall walk more man
ageable paths that will permit some useful exercise for the
final ascent. Consider, then, an oversimplification that may
well have grated upon some of my readers’ legal sensibilities.
Thus far, I have spoken of Layman as if he had an unencum
bered fee simple estate in his real property and a similarly ab
solute interest in his personal property. In less technical lan
guage, I have assumed that at Tim e One, Layman has kept
his things to himself and has refused to give permission to
anybody else to use them. Now that we have elaborated the
basic ideas behind the Ordinary Observer’s approach, how
157
ever, we can afford to abandon such simplicities to take into

account the full complexity of modern property relationships.
Let us begin with the easy cases. Imagine that instead of
keeping his thing to himself, Layman lets somebody else use
it as well. Indeed, imagine that a particular User finds a par
ticular use so attractive that he no longer wishes to use the
thing at Layman’s sufferance but pays Layman to let him use
it as a matter of right. For present purposes it is not important
what legal label the lawyers will deploy to guarantee User his
rights; 93 to make it an easy case, however, we must stipulate
that User is actually making use of the thing on a regular
basis and is not simply holding his rights for possible future
employment. Imagine, for example, that while Layman wishes
to continue using the surface of parcel D (for divided) as a
factory, he grants a coal company the right to mine under the
ground his factory occupies. T o assess the significance of the
fact of divided ownership, compare the fate of parcel D to that
suffered by a second piece of land identical to D in all respects
except that this time Layman decides to mine the coal under
the factory himself, leaving the ownership of the parcel un
divided (hence parcel U).
Having defined their legal relationships during Tim e One,
the owners of parcels U and D find themselves in a familiar
situation at Tim e Two. Both lots, it seems, are in the path of
a new road planned by the State Highway Department, which
takes full title to them. As a consequence of the state’s action,
both Layman and User stand as complete strangers to D, while
Layman alone has been estranged from U. In each case, the
rights-holders have suffered a total loss of a million dollars—
though so far as parcel D is concerned, half the loss is borne
by Layman and half by User, while U's million dollar loss falls
exclusively on Layman. Despite the differing extent in the
dimension of personal loss, however, American courts insist
upon achieving parity between the divided and undivided
parcels, instructing the state to create a million dollar fund
for each parcel payable over to rights-holders as their inter
ests may appear.94 While this insistence on parity will not al
ways seem justified to a Scientific Policymaker,95 it makes

perfect sense when viewed from the Ordinary Observer’s per
spective: since Layman has the perfect right to let others use
his thing if he wants to, there seems to be no reason to dis
criminate among things according to the extent to which Lay
man avails himself of this right. Similarly, the Ordinary judge
would experience very little difficulty if the state did not take
title to both parcels but imposed a new set of regulations that
rendered the mining operations of both User and Layman
valueless. Since both mines have been taken, the only question
remaining open is whether the takings were justified; if not,
both Layman and User would each obtain a half-million
dollars in compensation, and parity between the two identical
parcels would be maintained.
There is, then, a large class of cases in which the existence
of complex patterns of divided ownership do not cause the
Ordinary judge any special difficulty in takings law. In these
“ easy” cases, the holder of a “ small” partial interest (like the
coal company’s right in parcel D) will obtain compensation if,
but only if, the owner of a “ large,” undivided interest (like
Layman’s in parcel U) would also gain victory under the same
circumstances. Yet there comes a point at which the main
tenance of this “ easy” principle of parity 96 becomes very diffi
cult indeed— where the Ordinary Observer will be sorely
tempted to grant compensation to the holder of the “ small”
interest even though he wishes to deny it to those who hold
the “ large” one. This result is, of course, exceedingly peculiar.
In constitutional law, as elsewhere, it is not often the case that
less is more: that the company should gain constitutional pro
tection precisely because it has fewer rights than Layman. It
is not for the sake of paradox alone, however, that the con
sideration of these “ hard” cases is worthwhile; for if we press
the analysis far enough, we shall finally glimpse one of the
deeper perplexities that must afflict the judge who struggles to
achieve an Ordinary understanding of the takings clause.
On, then, to the “ hard” case of divided ownership. So far
we have assumed that both Layman and the coal company
159
have already begun mining operations on their respective

parcels at the time the state has passed its anti-mining statute.
Assume now, however, that neither has done so, but that each
intends to mine the land some time in the future. I should
like to persuade you that this single change in the hypothetical
facts suffices to transform the case into one where the Ordinary
Observer will have great difficulty maintaining parity be
tween U and D.
Up to a certain point, the analysis of these new “ hard cases”
poses no new difficulties. At least so far as Layman’s mining
losses on parcel U are concerned, it should be obvious that an
Ordinary judge must decide against compensation. Indeed,
Layman cannot even advance a prima facie case of a taking
since he can point to no thing which has been taken from him
by the new regulations. Since there was no mine in existence
at Tim e One, it could not be taken from him at Tim e Two;
and so far as the factory and land are concerned, they are just
as much his as they always were. All that was taken from
Layman was simply one of the many possible ways he could
use his land if he so chose. While the loss of this opportunity
did cause the market price of U to plummet by 50 percent
to $500,000, this is not enough to induce an Ordinary judge to
consider Layman’s loss compensable. Instead, Layman’s plight
seems in all respects identical to that suffered by the unhappy
Speculator whose plans for a new Hamburger Heaven were
frustrated by the town’s zoning board.97
Having disposed of Layman’s lawsuit so easily, we are now
in a position to see why the coal company’s analogous suit on
parcel D presents a hidden difficulty. In contrast to Layman,
the company can point to a particular thing which has been
taken from it by the state as a result of the passage of its anti
mining legislation. After all, does not the company own a
piece of impressive-looking paper granting it mining rights
that its lawyers had assured it was a thing of value? And has
not this thing been rendered worthless by the state’s new law,
thereby raising a prima facie case of an Ordinary taking?
An affirmative answer to this question is, of course, sug
i6 o l a y m a n ’s t h in g s
gested by the entire drift of the Ordinary approach. Yet to

grant compensation to the company is to breach the parity
principle— for we have just shown that so far as Layman’s
parcel U is concerned, an Ordinary Observer has no difficulty
denying compensation for the loss of mining rights. How,
then, is the Ordinary judge to respond? Is he to compensate
the company for the loss of its thing or maintain parity be
tween parcels U and D?
It is less important to resolve this dilemma than to under
stand why it arises in the first place. T o do this it is necessary
to reflect upon the sort of thing that has been taken from the
coal company. Since we have stipulated that the company has
done nothing to make its mine a social reality, it should be
plain that its right to mine parcel D cannot be social property,
in the sense we have given the term,98 but only legal property.
T hat is, just as an ordinary person cannot convince a fair-
minded friend that he “ owns” the air two miles above “ his”
farm,99 so too the owners of the coal company could not point
to anything in the observable social universe that will sub
stantiate the claim that they stand in a special relationship to
parcel D. So far as the unspecialized eye can see, it is Layman,
and only Layman, who has a privileged position with respect
to D— it is Layman (or his delegate) who is running the fac
tory, using the land for a variety of purposes, and so forth.
The company, in contrast, never enters the stage of ordinary
social interaction.
It is true, of course, that the non-lawyer will not observe
Layman mining “ his” land. But there are any number of
reasons Layman might refrain from acting in this way— per
haps there is no coal under the land, perhaps mining is not
economical, perhaps Layman is just lazy— that are consistent
with Layman’s owning the mining right as well as the others
he is exercising in ways that are obvious to nonprofessional
eyes. Moreover, even if Layman does not own this particular
right, there is nothing in the nonlegal reality that points to the
coal company as the true owner—it is not even the case that
the company is engaged in a regular habit of paying Layman
a periodic rent for its special rights.100 Of course, so far as the

legal Scientist is concerned, all this is simply a tribute to the
wonders of the legal system; rather than requiring the coal
company to waste social resources by crudely staking its claim
in the real world of social action, the law simply permits the
company to protect its security of expectation by filing a single
piece of paper in the title registry at a small expense.101 How
ever efficient this may seem to the Scientist, it is simply magic
to the unprofessional Layman, who must take it on faith that
the unfamiliar piece of paper that is the only observable evi
dence of mining rights says what the company’s lawyer says it
says.102
As soon as it is recognized that the coal company’s rights
are merely legal property, not social property, it is possible to
move beyond one’s initial sense of paradox to understand the
fundamental issue raised by the company’s effort to obtain
compensation. If the Ordinary judge’s concern is restricted to
the taking of social property— Layman’s things— then the coal
company can no more point to a thing it has lost on parcel D
than Layman can with respect to parcel U. Both have simply
lost the opportunity to use the land in one of a number of
potentially profitable ways. If, however, the Ordinary judge is
also willing to protect legal property— Lawyer’s things as well
as Layman’s things— then he will find that the state has taken
the company’s property by transforming its legal document to
parcel D into a piece of scrap paper.103
Of all the Ordinary ideas we have explored in this essay, the
notion of a Lawyer’s thing is perhaps the most difficult for
the Scientific Policymaker to take seriously. T o him it seems
quite absurd to imagine that the coal company’s case can be
so sharply distinguished from Layman’s simply because the
company can point to a particular piece of paper that had be
come worthless by virtue of the new regulations, while Layman
cannot. Instead, the Scientist will impatiently put the par
ticular pieces of paper to one side and point out that the
bundle of rights to the subsurface held by Layman is the same
as the bundle held by the coal company, regardless of the
documentary ways in which both are packaged. It is only from

Layman’s point of view that an emphasis on particular pieces
of paper seems even remotely plausible. Given his ignorance of
the structure of legal discourse, he will grasp at the physical ex
istence of a piece of paper in the hope that it will provide him
with the Archimedean point from which he can understand his
place in the legal universe. Without a piece of paper, Layman
must listen passively as his lawyer explains to him his rights
and obligations; with a piece of paper, Layman can at least ask
pointedly: What is thisf What does it give me? Similarly, in or
dinary life and conversation, he need not idly report his
lawyer’s talk, but may at least show the piece of paper when
called upon by his fair-minded friends to evidence his claim
that he stands in a special legal relationship to one or another
thing in their common social reality. Thus, it may be quite
possible for rather abstruse and unfamiliar legal documents
to take on a shadowy social reality which would not exist in
the absence of documentation— a phenomenon recently il
luminated in the context of more standardized commercial
transactions by my colleagues Arthur Leff and Robert Clark.104
If, then, the Ordinary judge will accord protection to Lawyer’s
things as well as Layman’s things, the fact that the coal com
pany can point to a particular document whose value has been
destroyed is a matter of more than ordinary significance.
A ll this, however, is merely a preliminary to the truly funda
mental question— how is the Ordinary judge to decide whether
he will reserve constitutional protection to Layman’s things
or extend it further to Lawyer’s things? Even upon first ap
proach, it should be plain that the question will prove pecu
liarly embarrassing to the Ordinary judge. After all, as a matter
of basic principle, he is striving to understand the conflict
by using the categories of nonprofessional talk; yet, by defini
tion, all Layman will say about a Lawyer’s thing is that he
really must see a lawyer before he can make sense out of it!
The Ordinary Observer seems fated by his own methodology
to return to his starting place with nothing but an increased
sense of frustration, vaguely conscious that his decisionmaking

problem can be resolved only at the cost of a deep modification
of Ordinary Observing commitments.
Tw o choices are open. On the one hand, a judge may con
clude that the Ordinary methodology is simply inapplicable
to legal property and switch to one or another form of Scien
tific Policymaking to resolve this class of cases.105 On the other
hand, he may seek to devise an Ordinary-looking solution and
suppress the perception that the Ordinary forms are no longer
rooted in social— as distinct from legal— practice. Thus, the
judge may indulge in legal fiction and treat legal property as
if it were social property, protecting paper interests like that
of the coal company when they are rendered valueless by state
action. Or he may conclude that since the untrained citizen
could never assess the nature of the coal company’s legal rights
unaided, the company cannot complain when it is informed
that it has been deprived of rights a Layman could not say be
longed to it in the first place. In either case, however, the judge
has outrun his methodological premises by seeking to derive a
determinate legal conclusion from Layman’s self-denying recog
nition that he is incompetent to evaluate legal property claims
without consulting a lawyer.
With these options displayed to view, it is possible, I think,
to appreciate the deep difficulties confronting Mr. Justice
Holmes when he was called upon to write the Court’s opinion
in the leading case of Pennsylvania Coal Company v. Mahon.
For present purposes, it is enough to describe the case as
structurally identical to the hypothetical parcel D which we
have been discussing. The coal company sold Layman the sur
face rights to parcel D, reserving to itself, however, the future
right to extract the subsurface anthracite even if this should
cause great damage to Layman’s surface activities.106 These
mining rights, however, had recently been rendered worthless
by a Pennsylvania statute making extraction illegal if it
caused subsidence.107 In response the company went to court
to recover compensation for the taking of its Lawyer’s thing.
Now, given Holmes’s general outlook on constitutional law,

it should be clear that he would rebel at the thought of de
ciding the lawsuit within the Scientific Policymaking frame
work. For Holmes, nothing could have been less congenial than
indulging the Policymaker’s notion that the Constitution
should be understood as coherently organized around a deter
minate Comprehensive View.108 As a result, his only live option
was to force an answer out of the Ordinary Observer’s method
ology: either Lawyer’s things were to be treated as if they
were Layman's things, and the coal company was to be granted
compensation; or Lawyer’s things were to be treated as merely
legally packaged expectations having no basis in social practice
and so beyond the scope of the Ordinary takings clause.
Holmes took the first path. As was to be expected, however,
he did not justify his choice by arguing its affirmative attrac
tions but by emphasizing the dangers that might possibly be
hidden down the second highway. Down this road, it was
claimed, the far-sighted Ordinary jurist could discern the end
of all constitutional protection of property, social as well as
legal: if the state can take Lawyer’s things without compensa
tion, why can it not take Layman’s things as well? 109 Pointing
out that some Pennsylvania cities had, when laying out their
streets, merely purchased rights of way and expressly allowed
the sellers to mine the underground coal even if it caused sub
sidence, Holmes wrote:
If . . . [the city’s] representatives have been so short
sighted as to acquire only surface rights without the right
of support, we see no more authority for supplying the
latter without compensation than there was for taking the
right of way in the first place and refusing to pay for it
because the public wanted it very much.110
Unfortunately, the navigator who is supremely conscious of
the existence of Scylla only succeeds in making his encounter
with Charybdis the more certain. Having rejected a position
that could possibly be extended “ until at last private prop
erty disappears,” 111 Holmes had no option left but to assume
that Lawyer’s things should be treated as if they were Lay

man’s things for purposes of takings law. Since the regulation
had left a Lawyer’s thing worthless, and Holmes could find
no Ordinary justification for the state’s action,112 compensa
tion was foreordained within the framework of Ordinary
adjudication. Of course, even the most committed Ordinary
judge cannot be affirmatively happy with this result, since it is
Ordinary only in form and not in substance.113 As a con
sequence, it is not surprising to observe Holmes—often so
eager to lay down hard and fast objective-looking rules—
insisting that the issue before him turns on “ a question of
degree and therefore cannot be disposed of by general proposi
tions.” 114 Having vindicated the constitutional status of
Lawyer’s things, Holmes senses that he is on uncertain ground
and refuses to hand down a rule of any generality to govern
the taking of legal, as opposed to social, rights.
Holmes’s sense of difficulty has been shared by the genera
tions of Ordinary judges that have succeeded him. Pennsylvania
Coal has not come down to us today as a ringing affirmation of
constitutional protection for interests which do not qualify as
social property. Instead of Holmes’s aggressive holding, it is his
dicta disparaging general rules that have proved influential in
the courts. While the general embrace of Holmes’s ad hoc ap
proach has suppressed the methodological perplexities that
would be exposed by an explicit treatment of legal property,
the judges have not followed Holmes in according broad pro-
tection to the interests of those whose legal rights have êen
taken from them. Thus, the courts have failed to recognize the"
relevance of takings law in protecting the expectations of mil
lions who havtTlegal property in the Social Security and wel-
fare programs.115 Indeed, even so far as more traditional forms
of legal property are concerned— like the rights of shareholders
and SecUfecT creditors— the extent to which the courts wITT in-
voke the clause is far from clear.116
The continuing judicial uncertainty regarding the proper
treatment of legal property is not only of primary practical im
portance; it is also suggestive of the deeper difficulties that af
i6 6 l a y m a n ’s t h in g s
flict the Ordinary Observer as he attempts a credible reading

of the Constitution in a modern setting. Unlike our ancestors,
we no longer count our wealth by looking first to our social
proper tv ôU jand. farms. buildingsr~XnsIeadr~our j>nncipai
means of support consist of legal property: stocks, bonds, pen-
sions, an assortment of rights granted by the activist welfare
state. Yet the Ordinary Observer— in principle so sensitive to
the ebb and flow of social mores— is nonetheless peculiarly in-
capable of grasping the central importance of legal property
in modern life/ Since even Laymen recognize that they cannot
make sense of their new forms of property without expert ad
vice, the Ordinary judge is simply without the analytic means
to assess theônstitutional significance of the great sea change
that has transformed property in the twentieth century. In
stead, he is confronted with two unsatisfactory options: on the
one hand, he may simply reserve the takings clause to social
property only, consigning the new property and its protection
to constitutional limbo; on the other hand, he may approach
the new legal phenomena obliquely by indulging in strained
analogies to the older social forms which his chosen method so
powerfully illuminated. We come, then, to the ultimate para-
dox: a method of analysis which seeks, above all, to root the
law in dominant social practice finds itself falsitying the stTuc^
ture of this very practice, incapable of coming to terms with an
“ everyday” world in which ordinary citizens are increasingly
dependent upoalaw yers before they can understand the nature
of their entitlements.
Given this methodological dead-end, I doubt that even
Charles Reich’s eloquent statement in “ The New Property” 117
will prove sufficient to move Ordinary judges to frame general
rules governing the taking of legal property. Choosing Reich
over Holmes would raise to the surface doubts about the vi
ability of Ordinary Observing that might be intolerable so
long as the Ordinary interpretation of the clause holds sway.
This is not to say, however, that we are necessarily reduced to
Holmesian shadowplay when it comes to legal property, taking
with one hand what is given with the other. For we can at least
contemplate the move that was unthinkable for Holmes and

consider whether it is not best to discard Ordinary Observing
and look at the takings problem with the eyes of a Scientific
Policymaker. Once this shift is made, the puzzle that overtaxed
the skill of a legal genius is transformed, quite remarkably, into
the simplest of children’s games. Suddenly it becomes perfectly
clear that there is no fundamental difference between social
property and legal property; that the legally decisive question
is not whether a “ thing” has been taken, but whether those
who lose as a result of the redistribution of property bundles
ought to be compensated by those who gain; that the answer
to this question is not to be found in the patient elaboration of
Ordinary language as a key to legitimate social expectation
but in clear and systematic development of the implications of
the Comprehensive View that prevails in the legal system; that
it is only in this way that the Policymaker has any assurance
that he is participating in the larger legal enterprise of settling
disputes in a way that makes some overall sense.
By making this transition, of course, the Scientific Policy
maker does not pretend that the takings problem has thereby
been resolved. Hard work remains: in developing the criteria
by which a lawyer is to determine the particular Comprehen
sive View to be selected as the one dominant in the legal sys
tem; in understanding the deep structure of the Comprehen
sive View that is selected; in elaborating the implications of
the Comprehensive View for the problem at hand. It is these
tasks—which occupied us in the first half of the book— that,
for the Scientific Policymaker, represent the unfinished busi
ness of legal thought.
7 On the Nature and Object
of Legal Language
O n E x c o m m u n ic a t io n
We are now in a position to pierce the mystery of the takings

clause— at least to understand why it is that the guiding prin
ciples of compensation law are so obscure to the present gen
eration of lawyers. My essential diagnosis is simple. On the
one hand, traditional doctrine is in fact gromided uponTEe
principles^ of Ordinary Observing. On the other hand, so
phisticated lawyers and judges of the present day—especially
th°se_apt to write articles or opinions that nave a general
impact—are increasingly inrl inp d f n - t h i n k ahmjf the l a w in
Scientific Policymaking terms. Thus, the Scientific Policy
makers are unable to make sense of the law, while the Ordinary
Observers have lost their voice and are capable only ot ma
nipulating precedents whose deeper structures are lost from
view. J n short, the subterranean conflict between the two forms
of legal thought expresses itself on the surface of professional
life by the common perception that takings law is incoherent,
its principles altogether mysterious. If I am right, before we
can hope to demystify the law it will be necessary to take a
self-conscious position on the relative merits of Scientific Policy
making and Ordinary Observing as alternative modes of legal
analysis.
It is true, of course, that this call for methodological self-
consciousness is an unfamiliar one. At least so far as I can see,
our legal culture is sufficiently disorganized (or should I say
schizoid?) that many of its principal actors—lawyers, judges,
legislators— move back and forth between the perspectives of
the Ordinary Observer and Scientific Policymaker quite effort
lessly with no sense of impropriety. Consistent with the genius
of the common law, advocates are quite happy to indulge
168
ON THE NATURE AND OBJECT OF LEGAL LANGUAGE 169
either form of argument when it suits their advantage.1 And

judges (as well as legislators) are willing to rule neither kind of
argument beyond the pale of legal thought, though they surely
have no explicit criteria for determining the contexts in which
one or the other legal form should be given preponderant,
let alone exclusive, weight.
It takes little foresight, however, to predict that this age of
happy ignorance is drawing to a close. It is now a century since
the practicing bar began to lose to the law schools control over
the education of the new generation of lawyers; as a conse
quence of this gradual shift, it is now possible to predict with
some accuracy the future course of professional concerns by
looking to the present state of academic concerns. In saying
this, I do not mean to claim that the answers given by the
future generation of lawyers will be anything like the answers
given by the present academic generation. Instead, I only wish
to suggest that the concerns into which lawyers are socialized
by their teachers will deeply affect the way they think about
issues in practice. If this much is conceded, the present aca
demic situation is ripe with significance for crystal-ball gazers.
For the muddled form of toleration that is now the rule in
legal practice receives an increasingly hostile reception amongst
the groves of academe. Nor is the prevailing mood one of
coolly dispassionate analysis; instead, partisanship is becoming
the rule, with the most theoretically gifted seeming almost
eager to excommunicate those who depart from their version
of the true faith. At one time, perhaps, intolerance by the
Scientific Policymakers was a forgivable failing. Their num
bers, their influence on the profession, were so small that
sectarianism was necessary for survival.2 But things are dif
ferent now. The methods of Scientific Policymaking have made
a deep impression upon the generation of law teachers now
obtaining positions on important law faculties. Indeed, the
Coase Theorem 3 promises to occupy the same symbolic place
for this generation that Erie Railroad v. Tompkins 4 played
.for the last— an obligatory reference point for sophisticated
researchers.5 While the economic approach to law is currently
170 ON THE NATURE AND OBJECT OF LEGAL LANGUAGE
the most popular,6 the impulse to Scientific Policymaking can,

I think, be detected in many more traditional writers,7 not to
mention the proponents of other interdisciplinary approaches.8
As this movement comes to a crescendo, it is all too easy for
the triumphant Scientific Policymakers to take an imperialist
stance toward the Ordinary natives who formerly tended the
vineyards unaided. After expressing their respect for the value
of the native tradition in a ritual paragraph or chapter,9 the
Scientists embark on their real work of (a) translating in
digenous doctrine into Scientific sense and (b) teaching the
natives to think like Policymakers. Needless to say the Scien
tists may differ as to the state of the traditional legal enterprise.
Many will reach the predictable conclusion that by virtue of
their analytic failures the natives have made a mess of
things; 10 some will argue that the traditional practitioners
have reached the “ right” results with a frequency that is quite
remarkable for folks who so often talk gibberish; 11 a few will
even concede that there may be something valuable that is lost
in the translation into Scientific terms, to which deference
should be given, especially if the natives feel really anxious
about its loss.12 The one thing that is missing however—
particularly amongst the now dominant camp of lawyer-
economists with whom I am most familiar 13—is any effort to
make sense of the Ordinary Observing tradition in its own
terms and to confront the task of resolving the conceptual con
flict that is then observable.
So long as the Scientists were at the fringe of the teaching
profession, their challenge did not need to be taken seriously
by the bulk of academics whose instinct was to avoid theoreti
cal questions as much as possible. With the increasing pene
tration of Scientific Policymaking concepts, however, the time
for self-consciousness is coming. Indeed, in fields like torts,
which have witnessed a full scale scientific revolution over the
past fifteen years, even the traditionalist's counterattack has
now been fairly launched.14 Even more significant is the dawn
of professional recognition that lawyers are confronted with a
general analytic problem that transcends this or that area of
doctrine. Quite recently, two major writers—stimulated in

part by the challenge of the lawyer-economists— have launched
the first serious efforts to isolate^ and reflect upon, the chal
lenge that the new wave of Scjfntific^Bcdicymnking represents.
The first essay, written by Harry Wellington,15 deals with the
phenomenon by trying to convince lawyers that they should be
“ especially concerned, in the arguments they make or the ex
planations they give, to chstjnguishîrinci^les from policies . . .
— the latter [provide] an instrumental justification for a rule,
while the former [do] not.16 Armed with this distinction, Wel~
lington attempts to define the conditions under which policies,
as well as principles, are properly admissible in judicial argu
ment. Speaking very broadly, Wellington’s aim is an eclectic
one— while his central reliance is on an Observer’s method
ology,17 he attempts to find airTmporlanrfthbiigli subordinate)
place for Utilitarian Policymakers 11U a7IjudfcafTon.T8~ Un-
for tuna tely, however, Wellington fa iIs to “eTabor a te the im
plications of his eclectic mixture for constitutional law with
the same care that he devotes to common law adjudication.19
Nonetheless, his perception of the need for a systematic treat
ment of conflicting forms of argument in constitutional law
represents an advance of the first importance.
This said, it is also necessary to recognize that Wellington
fails to do justice to the complex structure of constitutional
argument that has been revealed in our treatment of compen
sation law. While his definition of a policy as an “ instrumental
justification for a rule’’ is sufficient, perhaps,20 to mark oup
Utilitarian Policymaking from_tlie general r im o ! legal argu
mentation, Wellington’s effort at methodological discrimina
tion ends prematurely at this point. So far as he is concerned,
all noninstrumental arguments may properly be treated to
gether under the heading of p rinciples. This, of course, makes
it difficult to recognize that the legal arguments of a Kantian
Policymaker are based on very different premises from those
advanced by an Ordinary Observer, despite the fact that
neither can justly be called instrumental in character. Indeed,
when Wellington seeks to deploy his distinction in a valuable
series of concrete case discussions, the only principles taken

seriously are those generated by a sophisticated kind of Or
dinary Observing; the power of Kantian Policymaking is
never squarely confronted.21 In short, while Wellington recog
nizes that traditional forms of legal argument are under at
tack, he imagines that the challenge comes only from Utilitarian
Policymaking. In doing so he mistakes the assault launched by
a particularly visible strike force of lawyer-economists for the
deeper threat to Ordinary Observing presented by the larger
army of Scientific Policymakers.
This certainly cannot be said o^R onald Dworkin’s^recent
report from the battlefield.22 IndeedpDworkinT overall con
ceptual apparatus permits a more just appreciation of the
contending parties. Instead of relying on a single distinction
to do all the work, Dworkin’s battle plan has at least two dis-
crete dimensions. Dworkin first locates judges on the basis of
the doctrine of political responsibility . . . [which] states,
in its most general form that political officials must make
jonly such pnlitiral decisions as they can justify within a
political theory that also justifies the other decisions
they propose to make. The doctrine . . . condemn^] a
style of political administration that might be called . . .
intuitionistic. It condemns the practice of making de-
cisions that seem right in isolation, but cannot be brought
within some comprehensive theory of general principles
and policies that is consistent with other decisions also
thought right.23
It should be plain that this doctrine will have the consequence
of distinguishing the Policymakers from the Observers in our
present legal culture. For, as we have seen, so long as we re
main distant from a Utopia in which a single Comprehensive
View is perfectly institutionalized in social practice, Observers
will refuse to purchase abstract theoretical consistency at the
price of falsifying the structure of dominant social expecta
tion, and so will qualify as “ infiibinnists” so far as ^Dworkin is
concerned^ In contrast, Policymakers will insist upon articulate
ON THE NATURE AND OBJECT OF LEGAL LANGUAGE 1 73
theoretical consistency, and so will qualify as “ politically

responsible.” 24
Having sorted Observers from Policymakers in a rough and
ready way, Dworkin deploys a second set of distinctions, which
permits one to discriminate between the two Comprehensive
Views ^treated in the first half of this book. Unfortunately for
the novice, Dworkin has chosen to express this second dis
tinction by using the same verbal opposition between principle
and policy invoked by Wellington for a very different pur
pose.25 Thus, for Dworkin: “ Arguments of policy . . . [show]
that the decision advances or protects some collectw^godT of
the community as a whole. . . T^rgum ents of jjrin cip le . . .
[show] that the decision respects or secures some individual or
group ri&ht.” 26 As I hope my selective emphasis suggests,
Dworkin’s distinction between principle and policy is far from
clear. A s he himself recognizes, it requires a powerful way of
discriminating between “ collective goals” on the one hand and
“ individual or group rights” on the other.27 Whatever else re
mains obscure, however, it seems clear that Dworkin would
consider the U tilitarian arguments described in Chapter 3
to provide an archetypal form oUpolicy reasoning; while the
Kantian arguments in Chapter 4 are of a paradigmatically
principled character.28 In short, the Kantian arguments
Dworkin takes to be paradigmatic of principle, Wellington
fails to take seriously; while the Observing arguments Welling
ton understands to be central to principle, Dworkin would not
consider principled at all but rather condemn as “ intuition-
istic.” T o compound the confusion, both Wellington and
Dworkin agree (though for different reasons) on calling U tili
tarian arguments policies. Once we penetrate the smoke, how
ever, it should be plain that Dworkin provides the better bat
tle plan— sorting “ intuitionistic” Observers onto one side of
the field and grouping on the other side “ politically respon
sible” Policymakers of both the Utilitarian and Kantian kinds.
Unfortunately, Dworkin’s superiority in analytic power is
overmatched by his peculiar perspective upon the scene of the
legal battle. For the picture he presents of the contestants seems
174 ON THE NATURE a n d o b j e c t o f l e g a l l a n g u a g e
sorely at variance with American legal realities. As Welling

ton’s article suggests, the fiercest struggle at present is between
Ordinary Observers and Utilitarian Policymakers, with the
Kantian Policymakers at best constituting an increasingly
ready reserve. Yet one would hardly recognize this from
Dworkin’s account. So far as the established Anglo-American
tradition of Ordinary Observing is concerned, Dworkin con
ceives it unworthy of any analysis whatever, content to “ con
demn” it in a paragraph as an “ intuitionistic” breach of “ po
litical responsibility.” 29 This move is especially remarkable
in a writer whose stated ambition is to provide “ not some new
information about what judges do, but a new way of describ
ing what we all know they do.” 30 Having disposed of the
Observers with a single wave of the hand, Dworkin dispatches
the Utilitarian Policymakers with almost equal facility. His
thesis is, once again, an extreme one: “ that judicial decisions
in civil cases . . . characteristically are and should be gen-
erafed by principle not policy.” 31
While, as we have seen, the distinction between principles
and policies is not clear, there can be little doubt that Dworkin
intends to ban absolutely from the judicial repertoire forms of
Utilitarian Policymaking that serve as the standard perspec
tive for most of the prominent authors who take an economic
approach to law— Guido Calabresi and Richard Posner, to
name only two.32 Moving closer to our present subject,
Dworkin’s position would suggest that the two legal writers
who are generally understood to have contributed most to
takings law in the past decade— Frank Michelman and Joseph
Sax— have, by virtue of their lapses into Utilitarianism, writ
ten little that judges should find relevant to their straight and
narrow inquiry. Now one would think that such a sweeping
excommunication should be accompanied by a thoughtful con
sideration of the grounds that could be advanced in support of
more tolerant views. Unfortunately, however, Dworkin’s main
energies are devoted to elaborating the terms of his own thesis,
rather than defending it against plausible alternatives. Thus,
before his report has properly begun, Dworkin has swept the
field clear of its major participants, awarding victory to the

small but growing band of Kantians by default.33 Even those
attracted to the Kantian approach, however, must doubt the
enduring character of a victory that comes so easily.
Our song, then, is one of division and disdain: so far as
Dworkin is concerned, there is no room for a Utilitarian like
Posner or an Observer like Wellington within the precincts of
generally acceptable legal argument; 34 a view with which
Posner tends to agree, so long as the parties’ identities are
suitably reversed.35 Wellington, in contrast, seems downright
catholic in his tastes, since he ignores only the Kantians while
attempting to find an accommodation with the Utilitarians
that saves for Observing its accustomed central role.
Now if this were some theological dispute between rival Popes
temporarily quartered at Oxford, Chicago, and Yale, it would
be of no practical importance to lawyers. Yet if, as I suspect, the
conflict between Scientific Policymaker and Ordinary Observer
is emerging as one of the master issues in the professional prac
tice of law’, lawyers cannot afford to view these academic ex
ercises in mutual incomprehension with casual disdain or idle
curiosity. For, as our scrutiny of takings law reveals, the con
ceptual conflict is already taking a form that practical men of
the world cannot so easily evade. And when the moment of
professional recognition comes, it would be a shame if the
academy has nothing better to offer than narrow interpreta
tions of the nature of the conflict that afflicts American law.
What is wanted is philosophy, not theology; a sense of wonder
rather than certainty when called upon to explain the grounds
upon which lawyers may properly choose between the compet
ing forms of legal thought.
P h il o so p h ic a l F o u n d atio n s
Even if it were within my power, it would be premature to

attempt a final theoretical solution to our present legal predic
ament. Instead, the point of my essay is to make enough people
(of different sorts) sufficiently uncomfortable with the prevail
ing schizophrenia that they find themselves driven to philoso
phy as the only available therapy. Nevertheless, it may not hurt

to mark out some of the more obvious paths that must be ex
plored by those who wish to make sense of the legal terrain. I
shall attempt this tour d’horizon simply by pointing to philo
sophical doctrines that the partisans of Ordinary Observing
and Scientific Policymaking would tend to find congenial,
making a special effort to suggest the ways they may be
plausibly interrelated into larger patterns. It should be em
phasized, however, that in linking doctrines together I do not
claim that one position necessarily entails any of the others.
Partisans of one or another legal analytic may well reject one
or another of their potential philosophic allies as unworthy
when judged on its own merits. Nor do I imagine that my
enumeration of relevant issues is in any sense exhaustive; in
stead I wish merely to suggest the broad range of relevant in
quiry.
Let us begin by noting what is perhaps the most distinctive
feature of the Ordinary Observer’s approach to law. By in
sisting on grounding legal concepts upon those developed in
daily life, the Ordinary judge (or other Ordinary decision
maker) 36 remains peculiarly close to the disputants before him
by thinking and talking in a way that is in principle compre
hensible to the general public. This is not to say that the
litigants-behind-the-lawyers will necessarily agree with the
Ordinary judge’s decision. Even apart from self-interest, lay
men may conscientiously weigh the competing arguments dif
ferently. The critical point is that the concrete categories of
evaluation used by the typical citizen are the same as those
used by the judge. Hence, while particular laymen may well
disagree with the decision, they can at least be brought to un
derstand the nature of their disagreement with established
authority in the case at hand.
In contrast, there is no such assurance if the judge deploys
a mode of Scientific Policymaking. This is not to say that a
legal system operated by Scientific Policymakers will be com
pletely obscure to the untrained citizen. Instead, it should be
quite possible to state the guiding principles established by
the Comprehensive View in a way that is readily grasped by

the general public. Indeed, it may well be far easier for the
citizen to gain an understanding of the general aspirations of
a Policymaking system than it would be to gain a comparable
grasp of an Observing system. Nonetheless, when it comes to
working out the implications of the Comprehensive View in
the resolution of concrete disputes, the layman will often have
great difficulty following the details of Scientific argument.
This intelligibility problem does not arise because Scientific
conceptual frameworks are necessarily more complicated than
their Ordinary counterparts— indeed, Ordinary concepts are
anything but simple in their structure— but because Scientific
types of analysis are self-consciously esoteric. They are not in
tended as mefCTTaboratioiis^TTxistlng social practices but are
designed by and for power-wTielders who conceive the altera
tion of existing practices as an option open to them. There is
little point in mastering a Scientific language unless one hopes
to be a member of the decisionmaking elite oneself—or, at
the very least, an enthusiastic spectator of its comings and
goings.
Once this is conceded, it would seem that the partisans of
Ordinary Observing can make several kinds of philosophic
appeal on behalf of their analytic. On the level of philosophy
of language, they may claim that the very notion of creating
artificial languages, especially in fields like law, is deeply
flawed. T o the extent the analyst succeeds in liberating himself
from the web of ordinary language into which he has been
socialized, he succeeds only in rendering himself unintelligible
to himself as well as to others. Instead of applauding the effort
to construct an esoteric judicial language, the task of phi
losophy—on this viewr— is to expose the Ordinary conceptual
troubles that so perplex the lawyer as to drive him to seek
salvation in an artificial language. It should be apparent that
a certain reading of the later Wittgenstein may powerfully be
employed in devising such a defense of Ordinary Observing.37
But the argument may be pressed on other equally im
portant fronts as well. On the level of ethical theory, the
partisan of Ordinary Observing may disparage the effort to

construct coherent and complete normative systems (what we
have called Comprehensive Views) in any number of familiar
ways. Such systems may be called completely meaningless, or
denigrated more subtly as merely the expression of intense
subjective convictions or preferences.38 The fundamental ob
jective, however, is to portray any effort at normative system
building as intellectual conceit that merely serves to mystify
oneself as to the one supreme truth— that there is no Truth
in ethics, only lots of different opinions. And if this is so, it
is easy to view Scientific Policymaking as an arrogant effort by
a handful of scholars to dress up their own particular opinions
in a form that will give them the most influence. Since scholars
are the only people with the time, inclination, and ability to
write up positions that look like Comprehensive Views, a com
mitment to Scientific Policymaking makes it difficult for judges
(and other lawmakers) to consider views that have not gained
at least some scholarly acceptance. Yet in disdaining normative
opinions that are not dressed up in academic trappings, law-
niakers will have simply blinded themselves to the one su
preme truth—.that a normative opinion remains nojjdng more
than opinion, no matter how elaborate it may seem. At least
Ordinary adjudication does not give such inordinate power to
those who have most blinded themselves to the truth. At least
Ordinary concepts can be seen as the product of countless
people in countless generations making countless decisions,
each of which individually is of no importance.
Needless to say, the Scientific Policymaker would have a
very different view of the Observer’s paean to the Ordinary
concepts of ordinary folk. For him, the Observer, under cover
of his appeal to common ideas, may well be announcing his
own personal prejudices on the matter without exposing them
to the searching and self-conscious scrutiny that comprehen
sive and exacting analysis provides.
This objection will lead the partisan of Ordinary Observing
to more explicit themes in political philosophy. T o put the
point in terms of modern Western theory, the Observing style
of legal thought fits more comfortably into a political theory

in which the state is_not marked out from society as an insti
tution with a peculiarly important mission. True, people some-
times come to state officials when they are unable to resolve
disputes by other means. But the relative frequency with which
even this is done can be readily overestimated. Moreover, the
success which state officials have in imposing a settlement that
is inconsistent witli the larger social balance is even more
limited. Hence, it is wisest even for relatively powerful state
officials not to stray from Ordinary concepts in resolving con
flicts. At least these concepts have proved themselves consis
tent, historically, with the evolution of the basic social forces.
Otherwise they would not have survived. In contrast, if state
officials adopt a Scientific P o l i c y m a k i n g approach, it will be
too easy for them to lead vv here others will not follow—with a
resulting conflict that may make it impossible for the state to
discharge itsbasic function of siipjxm ing the established social
order N^Cittess HT'say^ suclTyiews as these are easiest main
tained by those who, lik& BurkeTjge great value in the domi
nant cultural tradition into which the general population is
socialized.39 But such views may also be held by the rare
thinker who takes a starkly amoral view of history, neither
praising nor condemning culturally dominant tendencies, as
the example of Holmes established.40
Moving finally to explicit jurisprudential theory, it is easy
to attribute peculiar characteristics to courts that make the
appeal of Ordinary Observing seem even more compelling
than the analogous arguments that can be made in the case
of other state decisionmakers.41 ^The peculiar function^ of the
courts, it may be said, is to settle individual cases on the basis
oTTKe^partie^socially based expectations prevailing at some
past time at which the dispute arose. Once this is conceded,
the propriety of Ordinary Observing—which seeks to explicate
preexisting socially based expectations—seems almost self-
evident.42 Indeed, one can even say that the litigants are en
titled to such a method of judicial reasoning, since this
conforms to their understanding of the judicial function. And
if pressed as to why such an understanding is imputed to the

litigants, it is always possible to retrace the paths we have
sketched, seeking to root this idea of adjudication in theories"
of the state, history, ethics, language, perhaps making use of
some specific themes we have discussed or variants of them.
Unfortunately, while the philosophic materials exist in abun-
dance, it is impossible to be dogmatic as to the best lines of
theoretical development. For the harsh fact is that the great
book by an American lawyer or philosopher exploring these
themes remains to be written.43
Even if a mighty champion of Ordinary Observing should
suddenly appear, however, there is little reason to suspect that
his arguments would reduce his antagonists to silence. For the
proponents of Scientific Policymaking are in a position to ad
vance a wide range of philosophical considerations that pro
vide affirmative supporTTor their own position. Perhaps the
Policymaker’s case can best be introduced by contrasting his
likely theory of the state with the position we imputed to the
Ordinary Observer. F or the Policymaker, it is a deep mistake
to look upon the state as merely an institution people some-
times rely upon when other mechanisms of social control are
found wanting. While the existence of (great) constraints upon
state power need not be denied, the Policymaker can never
theless assert that the exercise of state power should be gov
erned by principles that do not presuppose the validity of the
concrete evaluative notions that happen to be dominant in
the well-socialized Layman’s upbringing. T o put the point in
terms of liberal political philosophy, the Policymaker may in
sist that theorists like Locke and Bentham were right in
supposing that the state’s actions should be tested by abstract
principles whose validity does not depend in any simple way
upon existing social practices. In contrast to writers like B urke
and Holmes, these thinkers contend that the state does not
exist merely to backstop existing institutions but to exercise a
critical function, providing its support only for those social
practices that satisfy the state’s own standards of right. The
Policymaker’s state, in short, is not concerned with muddling
through, but with assuring the attainment of a just or good

society.
It should be emphasized that, in invoking the notion of the
“ critical” state, the Policymaker has not yet committed him
self on the substantive character of the values the state ought
to express. Thus, it is quite possible for someone to take a
very modest view of the proper scope of state functions and
nevertheless accept a critical conception of the state. For ex
ample, there are many laissez-faire liberals amongst us who
believe that state officials should self-conSciousiy restrict thern-
selves to night-watchman functions rather than mindlessly”
follow Observing conceptions wherever they may lead.44
Needless to say, others may hold a more expansive conception
of the values the critical state should affirm. The decisive ques
tion for us, however, is one that is logically antecedent to the
task of identifying the substantive values the state should ex
press. It is whether state officials should think of themselves
merely as accommodating conflicts arising within existing in
stitutional structures or whether they are entitled to question
the validity of the structures themselves.
If one accepts the notion of the critical state, it is quite
possible to develop a set of jurisprudential positions to justify
the use of Scientific Policymaking by courts. No longer will
the protection of socially based exjiectations be conceived as
the supreme objective of adjudication. For the social institu
tions or practices that give rise to these expectationsImay them
selves be unjust, inefficient, or otherwise inconsistent with
supervening state objectives. As a consequence, it becomes
necessary tor courts, especially in constitutional litigation, to
exercise a criticarTunction. determining the extent to which
one or another social practice deserves the support of the
state’scoercive power. But to discharge this function, Scientific
Policymaking seems an absolute necessity— for how is it possi
ble to criticize institutional practice other than by under
standing the relationship between the legal rules presently
under dispute and the Comprehensive View imputed to the
critical state? 45
18 2 ON THE NATURE AND OBJECT OF LEGAL LANGUAGE
This is not to say that the conscientious Scientific Policy

maker thinks himself entitled to impose his personal Compre
hensive View on the parties before him. Instead, he will
conceive his role to require him to transcend his private
opinions and implement the state’s Comprehensive View in
the dispute at hand— for it is only as a state official that the
judge is authorized to exercise his critical function. Thus, the
master jurisprudential question for Policymakers will center
upon the criteria the judge may appropriately use to identify
the Comprehensive View which is to be imputed to the state
for purposes of legal analysis. Doubtless, this task is an ex
tremely complex one in the American constitutional system
based on the separation of powers. Nonetheless, the difficulty
of the issues— both in theory and in the practice of interpret
ing constitutions, statutes, and prior judicial decisions—will
not deter the Policymaking judge from the enterprise. For urn
less he can provide a convincing account of the techniques by
"wKlchTie transcends his private opinions to ascertain the Com
prehensive View adopted by the legal system, he will be
unable to defend himself against the Ordinary Observer's
charge that Scientific Policymaking is but a screen for impos
ing idiosyncratic or elite judicial preferences on society at
large.46
Thus far we have sketched some basic moves in jurispruden
tial and political theory which will tempt the proponent of
Scientific Policymaking seeking to ground his legal analytic in
a larger theory. As in the parallel treatment of Ordinary Ob
serving, however, it is possible to go beyond these explicit
politico-legal concerns and link Scientific Policymaking to
more general theories of normative evaluation and communi
cation. Thus, Policymaking will be strengthend by philosophi
cal efforts to provide convincing foundations for abstract talk
criticizing established social practices. For example, insofar as
John Raw ls’ account of justice is convincing,47 it provides im
portant support for the Kantian style of adjudication sketched
in Chapter 4; 48 similarly, a latter-day Bentham could provide
important services for those Scientific lawyers who wish to
recast the law in explicitly Utilitarian terms. Indeed, Policy

makers are not limited to explicitly philosophical texts in
their effort to defend the proposition that their talk about the
legal system’s Comprehensive View reflects more than a pro
jection of their own personal idiosyncratic preferences. T o
select only the most striking example, a great deal of recent
legal writing has attempted to employ the limited, but power
ful, notion of Pareto-superiority, developed by welfare econo
mists,49 as a tool in the normative evaluation of legal rules.50
Finally, on the level of philosophy of language, the legal
Scientist may gain a limited support for his enterprise from
work by philosophers like R. M. Hare,51 who seek to isolate
certain logicaTpro per ties of normative discourse; and it is
possible once again to look beyond philosophy at least to
imagine that far greater guidance may one day come from the
revolution in linguistics that has readied a new stage with
the writings of Chomsky,52 as well as the larger tangle of
tendencies that is associated with the Structuralist movement.53
Even more than elsewhere, however, everything remains to be
done before the areas of potential relationship can be ascer
tained and appraised.
We have, then, come to a rather unsurprising conclusion.
Neither of the competing legal forms can be considered a cul
tural anomaly for which nothing can be said in a philosophical
way. It will solve absolutely nothing to act as if members of
one school or the other were willfully blind or perverse. What
is required is discussion, not excommunication: while the gen
eral character of the larger issues may be dimly perceived, the
entire debate must be brought to a far higher stage of self-
conscious development before it can be said to be understood,
let alone intelligently resolved.
It is even possible that once the arguments on behalf of the
competing legal analytics come into sharper focus, promising
intermediate positions may appear in view. Thus, it may seem
plausible to mark out certain areas and issues as to which the
arguments on behalf of one form or the other are relatively
strong, thereby providing a philosophical foundation for a
discriminating eclecticism qualitatively different from the

present legal muddle. Nonetheless, even our brief canvass of
competing positions should serve as a caution that the task of
the eclectics will not be an easy one. While much that sounds
plausible can be said on behalf of each of the different legal
styles, even a casual inspection of the competing arguments
will suggest that many an attempt to navigate with two com
passes will founder on the rock of logical contradiction. In
deed, caution is warranted even among that small band of
American legal scholars for whom “ dialectical reasoning,” of
one sort or another, holds some attraction.54 However eager
one may be to synthesize contradictions on a “ higher level,”
it is sobering to recognize that even Hegel’s dialectical ca
pacities proved unequal to the task of transcending the an
alytical conflict with which we are concerned.
Put in Hegelian terms, the Ordinary Observer’s conception
of property is rooted in the egoistic, individualistic conscioiis-
ness of a member of civil (or market) society who is only
marginally concerned with the ethical content of communal
life. In contrast, the Scientific Policymaker’s conception is
“ characteristic of Hegel’s ideal state official who seeks to recon
cile the inevitable conflicts generated by the market society
“Ev FeTiFr in g lo The Community’s fundamental ethical princj-
ples. Rather than seeking to resolve this conflict at some higher
level, the whole of Hegel’s philosophy is an attempt to argue,
among other things, that state officials should systematically
adopt a Scientific Policymaking conception of their mission.55
Here, for once, Hegel stands foursquare with the most single-
minded missionary from Chicago, who with equal fervor in
sists that the task of legal thought is to isolate— through
Scientific analysis— a suitable basic structure within which
market transactions may take place. It is, however, possible to
detect an element of irony in the Hegelian position altogether
absent from the Chicagoan’s Scientific effort to reconstruct law
from an Efficiency point of view. If there was one thing Hegel
thought he knew, it was that the present historical period
would be dominated by states whose officials were self
consciously attempting to govern the market society by con

sulting the community’s basic values. What, then, would he
say upon learning that officials of the leading state of the
twentieth century were as uncertain about the value of Scien
tific Policymaking as in fact they are? 56
T he F uture
But perhaps Hegel was not so wrong as he seems on first

encounter. Perhaps the rise of the critical state in America has
merely been delayed, not prevented.57 Though its substantive
values are certainly not Hegel’s, it is possible to detect an in-
creasingly critical spirit at work in American legal and jpoliti^
cal institutions over the past generation. At the constitutional
level, the Supreme Court has subjected fundamental sbcTaT
practices to a deep moral critique and has attempted^ revolu
tionary changes in the name of law. At the legislative level, the
state has accepted responsibility for countless problems arising
in social life which were formerly left to chance and private
adjustment. A t the organizational level, a massive bureaucratic
machinery has been developed which, for the first time in
America at least, makes it possible at least to imagine that a
program initiated at the center could be carried out in a
systematic fashion. At the technological level, large organiza
tions possess mechanisms of intelligence and control unknown
in the past. All these movements provide a social context con
genial to the growth and development of Scientific Policy
making.
It is quite true, of course, that Scientific analysis may itself
reveal that the ethical promise of the welfare state has not
been redeemed; that fundamental changes in course are justi
fied. The fact that social science reveals past failures, however,
does not necessarily endanger the future of the critical state.
Indeed, no law-trained person could even imagine that Sci
entific Policymaking—or any other form of reasoning—can of
itself lead us to Utopia. Instead, it will be enough if it pro
vides a disciplined way to learn from the past so as to assure
sensitive, responsible reform. And it is far too soon to say
l8 6 ON THE NATURE AND OBJECT OF LEGAL LANGUAGE
whether this more modest hope will prove illusory. At any

rate, I see little evidence that the attractions of Scientific
Policymaking among the country’s elite is on the wane, while
there is much to suggest its increase.58
Nonetheless, it would be a serious mistake to view the
Scientific tendency as if it were inexorably fated to master all
that came before it and remake the law in its own image. Per
haps this point can best be made by casting a few sidelong
glances toward Europe and noting the enormous cultural dis
tance that still separates the new legal world from the old. In
speaking of a Continental legal culture, I am, of course, in
dulging in a gross oversimplification. Moreover, it seems plain
that, over the course of the twentieth century, the European
legal systems of the West have moved a certain distance away
from my model of Scientific Policymaking.59 Nonetheless, to
American eyes, the striking fact remains the extent to which
the norms of Scientific Policymaking have been institutional
ized within the European legal culture. Turning first to legal
education, the dominant motifs are precisely those to be ex
pected from our model: on the one hand, great emphasis is
placed upon the mastery of a refined, self-consciously technical,
legal language; on the other hand, the standard course of
lectures strives to present a synoptic view of vast areas of law,
each neatly ordered around “ fundamental” principles.60 Simi
larly, the structure of adjudication suggests parallel tendencies.
Thus, judges are not only recruited on the basis of merito
cratic examinations, but their promotion depends upon the
extent to which their written opinions and actual decisions
conform to standard practice.61 Equally revealing is the diffi
culty the Europeans have had in accommodating themselves
to the Anglo-American jury— imposed upon them by the
French Revolution and its aftermath. Rather than glorying in
the participation of laymen, the legal profession has waged a
long— and quite successful— battle to limit and control this
foreign element in the system. The paradigmatic adjudication
remains one that is dominated by professional judges, whose
decisions are closely reviewed— as to both law and fact—by
professionals further up the bureaucratic hierarchy.62
Finally, there is the question of dominant symbols. The

documents that serve as the ideological center of the legal
culture are the civil and criminal codes of the nineteenth
century— statutes that attempt a comprehensive view of their
subject based upon a formidable tradition of scholarship trac
ing itself back to the rediscovery of Roman law in eleventh-
century Italy.63 While it is quite true that these nineteenth-
century syntheses are under considerable strain at present,64
the characteristic Continental reaction is not to question the
need for synoptic intelligence, but to begin the work of evolv
ing new comprehensive structures better adapted to contem
porary ideas concerning the nature of the legitimate state and
its role in social life.65
One could go on and on. Yet I hope I have said enough to
support my main point: at crucial stages in his professional
life, the Continental lawyer is taught to distrust his own un
trained intuitions as to the merits of particular cases ancTis
instead trained to view each particular dispute through thF
refracting lenses provided- by a technical language and a
generalt2ing~ set of legal principles. H ow different all this
seems fronTthetraditional framework within which the pro
fession operates in America: where students are taught by
the “ Socratic method” to recognize the difficulty of applying'
abstract legal principles to the “ hard” cases which find their
way into their casebooks; where judges are selected after prov
ing themselves to be people of good sense to politicians who
control the judicial patronage; where the triumph of the
legal culture is represented by the Constitution, drafted by
statesmen in a single summer of insight.66 In short, the gradual
growth of Scientific Policymaking should not blind us to the
fact that the American lawyer continues to be surrounded
by institutions and symbols that teach him to be skeptical of
abstract and systematic thought, encouraging J}im instead tcT
view himself as a hard-headed problem-solver who reacts to
each practical situation in the light of his common-sense un-
derstanding of social expectations.
While the Continental parallel makes it clear how far
Scientific Policymaking is from total ascendancy in this coun
l8 8 ON THE NATURE AND OBJECT OF LEGAL LANGUAGE
try, I do not wish to place too heavy a burden upon the Con
tinental analogy. In particular, I am skeptical of any sugges
tion that the rise of Scientific Policymaking—if it continues
apace— will be accompanied by the self-conscious imitation of
European institutional forms. T he independence of the Anglo-
American tradition from Roman law stands as a basic his
torical reality far more powerful than any of the habits of
mind discussed in this essay. Just as the Scientific Policymaking
doctrines treated in the first half of this book are entirely
indigenous, without the hint of European legal influence, so
too new institutional forms will be the product of the English-
speaking tradition. Indeed, contemporary Continentals are
themselves increasingly aware of the need for fundamental re
construction of their legal inheritance— cautioning even those
who would happily avoid the agonies of creative thought that
this may be a peculiarly bad time to foresake our hard-won
legal independence.67
The European tradition is useful only as a foil to dramatize
the fact that the conflict between Ordinary Observing and
Scientific Policymaking involves much more than two disem
bodied forms of thought. What is at stake is the reorganiza
tion of an entire sociocultural system that creates powerful
professional incentives for the development of one or another
frame of mind. Thus, the question of constitutional law we
have debated is a part of a larger challenge to Ordinary Ob
serving in many parts of the legal culture— the decline of the
“ Socratic” method in the classroom; the erosion of the crim
inal jury by bureaucratic plea-bargaining; the displacement of
the civil jury by statutory compensation schemes and the in
stitution of insurance; the rise of the “ expert” administrative
agency at the expense of politician and juryman alike; and so
forth. Indeed, it is only after the breadth of the challenge is
recognized that the empty promise of European models takes
on its real significance. For it means that we are very much on
our own as we struggle with the task of developing a coherent
legal stance— be it Ordinary Observing or Scientific Policy
making or some sensible eclectic combination— in a new
world.
From this perspective, two points stand out from the mass
explored in the course of the essay. (On the one hand, it is
significant that the Constitution of the United States, as
presently construed, contains a principle that requires the state
to assess its manipulation of the economic environment not
by a critical yardstick of its own devising but by one rooted in
established social practice. On the other hand, it is equally
significant that this commitment to the Ordinary Observer’s
point of view is now constitutionally suspect; neither courts
nor commentators are now capable of its explicit statement or
sympathetic affirmation. It is, then, a moment of reappraisal—
of rediscovery and creation— in which law’ must become philo
sophical if it is to make sense of the demand for just compen
sation]
Notes
C hapter 1
1. S i b s o n v. S t a te o f N e w H a m p s h i r e , 1 1 5 N . H . 1 2 4 , 3 3 6 A . 2 d 2 3 9
(>9 7 5 )-
2. 1 1 5 N . H . 12 4 , 1 2 5 , 3 3 6 A . 2d 2 39 , 240.
3. R o b e r t N o z ic k , fo r e x a m p l e , is a t t r a c t e d to this v i e w in h is
Anarchy, State, and Utopia ( 1 9 7 4 ) . I t is n o t c le a r , h o w e v e r , t h a t e v e n
h e p u r s u e s this l i n e c o n s is te n tly . T h u s , in th e m id s t o f h is p r i n c i p a l
d is c u ss io n o f th e q u e s t io n , N o z i c k a p p e a r s to c o n c e d e th e r i g h t o f
th e sta te to p e r m i t o n l y “ tho se p o l l u t i n g a c t iv it ie s w h o s e b e n e fits a re
g r e a t e r t h a n t h e ir costs,” id. a t 7 9 , t h e r e b y s e e m in g to d e n y th e n e e d
fo r c o m p e n s a t i n g p o llu t e r s , so l o n g as th e e n v i r o n m e n t a l s ta tu te c a n
b e ju s t ifie d o n u t i l i t a r i a n g r o u n d s . A l l in all. J a m e s B u c h a n a n ’ s n e w
book. The Lim its of Liberty ( 1 9 7 5 ) , tak es a m o r e c o n s is te n t “ f u l l
c o m p e n s a t i o n ” p o s itio n .
4 . I h a v e f o u n d n o c o n t e m p o r a r y A m e r i c a n le g a l a u t h o r w h o a d
v o c a t e s o u t - a n d - o u t r e p e a l o f th e c o m p e n s a t i o n c la u s e o r a j u d i c i a l
r e a d i n g o f its c o m m a n d a m o u n t i n g to j u d i c i a l n u l l if ic a t i o n . T h e r e
d o e x is t a n u m b e r o f i n t e r p r e t a t io n s , h o w e v e r , c a l l i n g f o r a “ s tr ict
c o n stru ctio n ” of th e c l a u s e ; see, e.g., F r e d B o sselm an et al., The
Taking Issue 2 3 8 - 5 5 (1973); J°lm E- D o n ald so n , “ R e g u la tion of
Conduct in R e la tio n to L a n d : T h e Need to P u r g e N atu ral L a w
C o n s t r a i n t s f r o m th e F o u r t e e n t h A m e n d m e n t , ” 16 Wm. & M ary L.
~Rev. 1 8 7 ( 1 974'jl
5 . I t s h o u l d b e e m p h a s iz e d a t th e o u ts e t th a t o u r a i m is n o t a n
e n cy clo p e d ic survey o f c o m p e n sa tio n law but rath er an in t e n s iv e
s c r u t i n y o f b a s ic p r i n c i p l e s o f in t e r p r e t a t i o n . A s a c o n s e q u e n c e , a
n u m b e r o f i m p o r t a n t p e r i p h e r a l issues h a v e b e e n ig n o r e d . T w o a re
a t lea st w o r t h y o f n o tic e . F ir s t, w e sh a ll n o t c o n s t r u e th e t e x t u a l
c o m m a n d th a t t a k in g s b e m a d e fo r a “ p u b l i c u s e .” W h i l e th e m o d
e rn u n d e rsta n d in g of “ p u b lic use” h old s th a t any sta te purpose
o t h e r w is e co n stitu tio n al sh ou ld q u a lify as su fficien tly “ p u b lic” to
j u s t i f y a t a k i n g ( B e r m a n v. P a r k e r , 3 4 8 U . S . 26 , 3 2 , 1 9 5 4 ) , P r o fe s s o r
H enry H a n s m a n n , o f th e U n i v e r s i t y o f P e n n s y l v a n i a Law S c h o o l,
h a s c o n v i n c e d m e th a t t h e r e is a t lea st s o m e t h i n g to b e s a id o n th e
19°
NOTES TO PAGES 3-4 19 1
o t h e r side. I sh all, h o w e v e r , l e a v e it to h i m to s a y it. S e c o n d , a
large num ber of state c o n s t it u t io n s in c l u d e co m p e n satio n c la u ses
w hose la n g u a g e su g g ests a s ig n ific a n t m o d if ic a t io n of the fe d e r a l
standard. These p r o v i s io n s dem and c o m p e n s a t io n not o n ly when
p ro p erty is “ t a k e n ,” but also when it is “ d a m a g e d .” W h ile this
t e x t u a l m o d ific a t io n w o u l d seem q u i t e s ig n ific a n t ( e s p e c ia lly o n the
i n t e r p r e t a t io n we s h a ll a t t r ib u t e to th e O rd in a ry O bserver), my
im p r e s s io n is that it h a s h a d a g o o d d e a l less i m p a c t t h a n m i g h t b e
p r e d ic t e d b y t e x t u a l e x e g e s is a lo n e . In a n y e v e n t, I sh a ll n o t try to
d e t e r m i n e th e e x t e n t to w h i c h this e x p a n d e d v e r s io n o f the c la u s e
s h o u ld h a v e , o r has in fa c t h a d , a n im p a c t o n j u d i c i a l d o c t r in e .
6. W h i l e th e h o ld in g in Sibson is c l e a r e n o u g h , its p r e c is e r a
t io n a le suffers f r o m c h a r a c t e r is t ic c o m m o n l a w fo rm s o f a m b i g u i t y .
Thus, the c o u r t exp ressly n o te s th a t S ib s o n had alread y r e c e iv e d
p e r m is s io n to d e v e l o p p r o f it a b l y a n a d j a c e n t p o r t i o n o f th e m a rsh ,
o n l y la te r e x p r e s s l y to d e n y the r e l e v a n c e o f this fa ct to its d e c isio n ,
1 1 5 N . H . 1 2 4 , 1 2 6 , 3 3 6 A . 2 d 2 3 9 , 2 4 1 . S i m i l a r l y , th e c o u r t e x p r e s s e d
d o u b t th a t the p r o p e r t y h a d been rendered v a lu e le s s sin ce it w a s
ad a p ta b le to “ th e n orm al t r a d it io n a l uses of th e m arsh lan d in
c l u d i n g w i l d l i f e o b s e r v a t io n , h u n t i n g , h a r v e s t i n g o f m a rsh g ra ss , c l a m
and shellfish h a r v e s t in g , and a e s th e tic p u r p o s e s .” Id . at 127, 243.
I n d e e d , it w’e n t so fa r as to d e n y th a t th e m a r s h ’ s v a l u e h a d b e e n
r e d u c e d at a ll, e x p l a i n i n g th a t ‘ ‘ [It] w a s the sa m e a f t e r th e d e n i a l
o f th e p e r m it as b e f o r e and it r e m a i n e d as it h a d been fo r m il-
len iu m s [51c].” I b id . B u t s u r e ly a s u b s t a n t ia l d e c l i n e in v a l u e h a d
o c c u r r e d — o t h e r w is e th e c o s tly su it w o u l d n e v e r h a v e b e e n b r o u g h t .
F i n a l l y , the c o u r t ^ m i n im iz e d S i b s o n ’ s i n tere st b y n o t i n g th a t the
d e v e l o p m e n t b a n m e r e l y d e p r i v e d h i m o f r ig h t s th a t d i d n o t h a v e
the “ s u b s ta n t ia l c h a r a c t e r o f a c u r r e n t u s e ,” ib id ., a l t h o u g h it also
sta te d th a t “ th e i m p o r t a n c e o f w e t l a n d s to the p u b l i c h e a l t h a n d
w e l f a r e w o u l d c l e a r l y su sta in th e d e n i a l o f th e p e r m it to fill p l a i n
tiff’s m a r s h l a n d e v e n w e r e th e ir rig h ts th e s u b s t a n t ia l p r o p e r t y r ig h ts
in h e r e n t in a c u r r e n t use o f a n a c t i v i t y o n th e ir l a n d . ” Id ., a t 1 2 7 ,
24 2-43.
7. R e c e n t w e t l a n d s r e g u l a t i o n cases h a v e d i v i d e d a p p ro x im a te ly
e v e n l y o n th e issue o f c o m p e n s a t i o n . S e e c h a p . 3, n. 5 4 .
8. P e n n s y l v a n i a C o a l C o . v. M a h o n , 2 6 0 U . S . 3 9 3 ( 1 9 2 2 ) a n d V i l
la g e o f E u c l i d v. A m b l e r R e a l t y C o ., 2 7 2 U . S . 3 6 5 ( 1 9 2 6 ) e s ta b lis h e d
the present c o n s t it u t i o n a l fram ew ork fo r a p p ly in g t a k in g s l a w to
l a n d use r e g u l a t i o n .
19 2 NOTES TO PAGES 6 - 7
9. T h e a p p r o a c h t a k e n in th e t e x t m a y p r o f i t a b l y b e v i e w e d as a n
a p p l i c a t i o n o f R o n a l d D w o r k i n ’s m o r e g e n e r a l c r i t i q u e o f lite r a lis m ,
to b e f o u n d in h is “ T h e J u r i s p r u d e n c e o f R i c h a r d N i x o n , ” 18 The
New York Review of Books 2 7 - 2 8 ( M a y 4, 1 9 7 2 ) .
10 . D u r i n g th e process o f r a tify in g th e o r i g i n a l C o n stitu tio n , a
n u m b e r o f sta te c o n v e n t i o n s p r o p o s e d a m e n d m e n t s w h i c h u l t i m a t e l y
l e d to the a d o p t i o n o f t h e B i l l o f R i g h t s . N o n e o f th e state p r o p o
sals, h o w e v e r , s u g g e s te d a c o m p e n s a t i o n c la u s e . S e e E d w a r d Dum -
b au ld , The Bill of Rights and What It Means Today 173-20 5
(1957). The concept was first in tro d u c e d in M a d i s o n ’s d r a f t of
Ju n e 8, 1789 : “ no person sh a ll . . . be o b lig e d to r e l i n q u i s h h is
p r o p e r t y , w h e r e it m a y b e n e c e s s a ry f o r p u b l i c use, w i t h o u t a ju s t
c o m p e n sa tio n .” 1 Annals of Congress 4 51-52. T h is becam e, after
a m e n d m e n t a n d d e b a t e in b o t h ho u ses, th e c o m p e n s a t i o n c la u s e o f
th e F i f t h A m e n d m e n t . M a d i s o n ’ s r e a s o n s f o r p r o p o s i n g it h a v e n e v e r
b e e n s a t i s f a c t o r i ly e x p l a i n e d , a n d th e d e b a t e s in C o n g r e s s a n d in th e
state r a t if ic a t io n c o n v e n t i o n s t h r o w n o l ig h t o n th e m a tte r . A l t h o u g h
t w o p r e - 1 7 8 9 sta te c o n s t it u t i o n s [ M a s s a c h u s e t t s ( 1 7 8 0 ) a n d V e r m o n t
(1786)] had ju s t c o m p e n sa tio n p r o v is io n s , others m erely req u ired
th a t p r o p e r t y c o u l d n o t b e t a k e n e x c e p t a c c o r d i n g to the l a w o f the
l a n d , o r i g n o r e d th e t a k i n g issue a l t o g e t h e r . N o c o l o n i a l c h a r t e r o r
"fu n d a m e n ta l la w ” req u ired c o m p e n sa tio n f o r th e t a k i n g o f p r o p
e rty , e x c e p t th e M a s s a c h u s e t t s B o d y o f L i b e r t i e s § 8 ( 1 6 4 1 ) w h i c h r e
q u i r e d it f o r “ c a t t le o r g o o d s . ”
11. T h e t a k in g s c la u s e , lik e th e rest o f th e B ill o f R ig h ts, w as
o r i g i n a l l y u n d e r s t o o d to c o n t r o l o n l y a c t io n s o f th e f e d e r a l g o v e r n
m en t, not th o se o f th e states. N o n e t h e l e s s , it w a s a m o n g th e first
p r o v i s io n s m a d e a p p l i c a b l e to th e states t h r o u g h j u d i c i a l i n t e r p r e
t a tio n of th e due p ro c e s s c la u s e of th e F o u rteen th A m en d m en t.
See C h icago , B u rlin g to n & Q u in c y Ry. v. C h icago , 16 6 U .S . 226
(1897). T h is m akes it p o s s ib le fo r a w o u ld -b e h is to r ic is t to c l a im
th a t, so f a r as the states a r e c o n c e r n e d , th e a b s t r a c t c o n c e p t s in th e
t a k in g s c la u s e s h o u l d b e c o n t r o l l e d b y th e u n d e r s t a n d i n g s p r e v a i l
i n g a m o n g l a w y e r s in 1 8 6 8 , th e d a t e o f th e F o u r t e e n t h A m e n d m e n t ’ s
e n a c t m e n t , r a t h e r th a n 179 1, th e y e a r in w h i c h th e F i f t h A m e n d
m e n t c a m e in t o fo rc e . I l e a v e t h e s o lu t io n o f this q u e s t io n , h o w e v e r ,
to those w h o fin d it in te r e s tin g .
12. E ve n Ju stice B lack , who was enam ored of this approach ,
l a c k e d th e c o u r a g e o f h is c o n v i c t i o n s w h e n it c a m e to th e t a k in g s
c la u s e. I n a r e v e a l i n g o p i n i o n in U n i t e d S ta te s v. C a u s b y , 3 2 8 U . S .
NOTES TO PAGE 7 *93
2 5 6 , 2 6 8 ( 1 9 4 6 ) , J u s t i c e B l a c k d is s e n te d f r o m the m a j o r i t y ’s d e c is io n
to g r a n t c o m p e n s a t io n to a f a r m o w n e r i n j u r e d b y l o w - f l y in g m i l i t a r y
a ir c r a ft , w a r n i n g the c o u r t th a t “ o l d c o n c e p t s o f p r i v a t e o w n e r s h i p
o f l a n d s h o u ld n o t b e i n t r o d u c e d in t o th e field o f a i r r e g u l a t i o n . ”
I d . at 2 7 4 . S i m i l a r l y , B l a c k w a s w i l l i n g o n o t h e r o c c a s io n s to a p
p r o v e c o n g r e s s io n a l a c t io n s th a t w o u l d h a v e t r o u b l e d a d e t e r m i n e d
h isto ric ist; see U n i t e d S ta te s e x rel. T . V . A . v . W e l c h , 3 2 7 U .S . 54 6
( 1 9 4 6 ) ( i n t e r p r e t i n g “ p u b l i c u s e ” ), a n d U n i t e d S ta te s v. C o m m o d i t i e s
T ra d in g C o rp ., 339 U .S . 121 (1950 ) (in te rp retin g “ ju s t com pen
s a t i o n ” ).
13. N o r e s e a r c h e r h a s d is c o v e r e d e it h e r a n E n g l i s h o r a n A m e r
ican case b e f o r e 1789 th a t e x p r e s s l y r e q u i r e d c o m p e n s a t i o n in the
a b s e n c e o f l e g i s la t iv e au th o rization . See W illia m B. Sto ebu ck , “A
G e n e ra l T h e o r y o f E m in e n t D o m a in ,” 4 7 Wash. L. Rev. 553, 575
( 1 9 7 2 ) . N o r w a s th e re a n y s c h o l a r l y d is c u ss io n o f the issue, e x c e p t
fo r a b r ie f c o m m e n t o f B l a c k s t o n e at the e n d o f th e c o lo n ia l p e r io d .
Sir W illia m B lack sto n e, 1 Commentaries on the Laws of England
•139 . W h ile th e r e w a s a p a r l i a m e n t a r y p r a c t ic e u n d e r w h i c h c o m
p e n s a t io n w a s g r a n t e d in so m e cases, t h e r e seem s to h a v e b e e n n o
w e l l - d e v e l o p e d n o t io n in the c o n t e m p o r a r y le g a l c u l t u r e d e f i n i n g the
scope of the r ig h t to c o m p e n s a t i o n . Com pare Stoebu ck , supra at
577-8 8 to Jo sep h L. Sax, “ T a k in g s and th e P o l ic e P o w e r,” 74
Yale L.J. 36, 54 -6 0 (196 4), fo r c o n f l ic t i n g in t e r p r e t a t i o n s of the
p a l t r y d a ta .
L o o k i n g f u r t h e r a fie ld , a f a ir r e a d e r o f L o c k e c a n o n l y c o n c l u d e
th a t he h a d n o c le a r c o n c e p t i o n o f a class o f ju s tifie d g o v e r n m e n t a l
a c tio n s w h ic h n e v e r th e le s s req u ired c o m p e n s a t io n . See h is Two
Treatises on Government, b o o k I I , sec. 1 3 8 - 4 0 ( 1 9 2 4 ) ; a c o ll e c t io n o f
relevan t p a s sa g e s m ay be The fo u n d in C asim ir J. C z a j k o w s k i,
Theory of Private Property in John Locke’s Politicdl Philosophy
9 0 -9 7 ( 1 9 4 1 j n e X T r i i t e e n i l i cCTTtury C o n t i n e n t a l sources, lik e ~ G *f& tia s
and P u f e n d o r f , h a v e s lig h t ly m o r e d e v e l o p e d n o t io n s th a t fa ll fa r
sh ort o f a d e v e l o p e d ta k in g s t h e o ry . D e s p it e these m o d e s t b egin
n in g s , sta te c o u r t s h a d little d iffic u lty e r e c t in g , d u r i n g th e first h a l f
o f the n in e t e e n t h c e n t u r y , a v e r y p o t e n t t a k in g s j u r i s p r u d e n c e o n a
n a t u r a l l a w f o u n d a t i o n . S t o e b u c k , s u p r a at 5 7 3 , n. 66.
14 . T h i s is so e v e n for those wrh o w is h to tem p er C h a rle s E.
B e a r d ’s Economic Interpretation of the Constitution, esp. 152-8 8
( 1 9 3 5 ) , w i t h i n t e r p r e t a t i o n s th a t e m p h a s iz e th e i m p o r t a n c e o f n o n
e c o n o m i c fa cto rs. S e e B ernard B a ily n , The Ideological Origins of
194 NOTES TO PAGE 1 1
the American Revolution 1 7 5 - 2 3 0 ( 1 9 6 7 ) , a n d G o r d o n S. W o o d , The

Creation of the American Republic 3 4 4 - 8 0 ( 1 9 6 9 ) .
1 5 . T h e w r i t i n g s o f W e s l e y H o h f e l d a r e a classic e x a m p l e o f this
v ie w . S e e h is Fundamental Legal Conceptions (1919). T h e id e a is
not th a t le g a l d is c o u rs e is m o r e e la b o r a t e and s o p h is t i c a t e d th a n
o rd in a ry la n g u a g e . (In d eed , one of th e c h ie f virtu es claim ed for
H o h f e l d ’s p r o p o s e d lan gu ag e was its c o n c e p t u a l s im p lic it y .) It is
r a t h e r th a t le g a l a n d o r d i n a r y l a n g u a g e a r e d if f e r e n t in kind, in m u c h
th e sa m e w a y th a t a m a t h e m a t i c a l a n d a p h e n o m e n o l o g i c a l d e s c r i p
tio n o f a f a l l i n g o b j e c t a re d iffe r e n t . T h e S c i e n t if ic a p p a r a t u s o r d e r s
th e p h e n o m e n a o n the b asis o f c a t e g o r ie s th a t d o n o t d e p e n d f o r
t h e ir v a l i d i t y o n t h e ir c o n n e c t i o n w i t h the l a n g u a g e u s e d in e v e r y d a y
life . F o r m o r e o n th e c o n t r a s t i n g c o n c e p t i o n s o f l a n g u a g e , c o m p a r e
c h a p s . 2 a n d 5, in f r a .
16. F o r p r e s e n t p u r p o s e s it w i l l suffice to c la s s ify as a rule any
le g a l p r o p o s i t i o n th a t d o e s n o t q u a l i f y as a n e le m e n t in th e le g a l
s y s t e m ’s C o m p r e h e n s i v e V i e w . I t is p o ss ib le , o f co u rse , th a t th is v e r y
broad class of r u le s m ay be p r o f it a b l y su b d ivid ed in t o d iffe r e n t
c a t e g o r ie s f o r o t h e r p u r p o s e s . B u t I d o n o t t h i n k I n e e d to discuss
this q u e s t io n , a n d th e d e b a t e it ha s e n g e n d e r e d . S e e e.g., R o n a l d
D w o rk in , “The M odel of R u le s,” 35 U. Chi. L. Rev. 14 (196 7);
J o s e p h R a z , “ L e g a l P r i n c i p l e s a n d th e L i m i t s o f L a w , ” 8 1 Yale L.J.
8 2 3 ( 1 9 7 2 ) ; R o n a l d D w o r k i n , “ S o c ia l R u l e s a n d L e g a l T h e o r y , ” 8 1
Yale L.J. 8 55 (1972).
1 7 . I t is c u r r e n t l y p o p u l a r in le g a l t h e o r y to d e fin e th e n o t i o n o f
a “ p r i n c i p l e ” n a r r o w l y so th a t it c a n b e d is t in g u i s h e d f r o m a n o t h e r
class o f a b s t r a c t a n d g e n e r a l le g a l s t a n d a r d s c a l l e d “ p o l ic ie s .” C o m
p a r e th e d if f e r e n t d e fi n it io n s p r o p o s e d b y P r o fe s s o rs W e l l i n g t o n a n d
D w o rk in , d is c u s s e d a t pp. 171-75. My use o f th e te rm , how ever,
s h o u l d b e u n d e r s t o o d to h a v e a fa r b r o a d e r r a n g e o f a p p l i c a t i o n .
Any prescriptive and universalizable proposition w ill count as a
principle so long as it sets f o r t h o n e o f th e a b s t r a c t id e a ls th a t t h e
P o licym ak er understands th e le g a l syste m to serve. B y r e s t r ic t in g
th e class o f p o t e n t i a l l y a d m is s ib le p r o p o s i t i o n s to tho se o f a norma
tive c h a r a c t e r , m o r e o v e r , I m e a n to im p o s e v e r y m o d e s t tests, m o r e
o r less o f the k i n d s u g g e s te d b y P r o fe s s o r H a r e in his g e n e r a l a n a l
ysis o f th e lo g ic a l p r o p e r t i e s o f p r e s c r i p t i v e l a n g u a g e . R . M . H a r e ,
The Language of Morals ( 1 9 5 2 ) ; see also h is Freedom and Reason
( 1 9 6 3 ) . F o r e x a m p l e , n e i t h e r “ th e sky is b l u e ” n o r “ I lik e i t ” c o u n t
as p r e s c r i p t i v e and u n i v e r s a l iz a b l e p r o p o s it i o n s a n d hence cannot
NOTES TO PAGE 1 1 J 95
c o n c e i v a b l y b e a d m i t t e d as e le m e n ts in a C o m p r e h e n s i v e V i e w . B u t
the p r o p o s it i o n , “ S o c ie t y o u g h t to b e a r r a n g e d so as to m a x i m i z e
its c itiz e n s ’ a g g r e g a t e u tility ” c e r t a i n ly d o e s sa tisfy H a r e - l i k e tests
a n d w o u l d be a c a n d i d a t e fo r in c lu s io n in the l e g a l s y s te m ’ s C o m p r e
h e n s iv e V i e w . T h i s U tilita ria n p r o p o s it i o n w o u ld be t r e a te d as a
“ p o lic y ,” rath er th a n a “ p rin c ip le ,” by b o th D w o rk in and W e l
l in g t o n .
B y s a y in g th a t m y p r i n c i p l e s m u st b e general, I m e a n th a t e a c h
n o r m a t i v e p r o p o s it i o n m u st b e u n d e r s t o o d to b e a p p l i c a b l e to the
le g a l a n a ly s is o f m a n y classes o f cases. H o w m a n y is e n o u g h is, o f
co urse, a difficult q u e s t io n , fo r re a s o n s su g g e s te d o n c e a g a i n b y P r o
fessor H a r e in his r e c e n t essay, “ P r i n c i p l e s , ” 7 4 Proceedings of the
Aristotelian Society 1, 3 (1973). W h i l e th e re is, I su sp e c t, a g o o d d e a l
m o r e to be said o n the s u b je c t as it a p p l i e s to la w , I t h i n k it w o u l d
b e too m u c h o f a d e t o u r to a t t e m p t a n y t h i n g f a n c y h e re.
18 . By re q u irin g th a t my p rin cip les abstract
d e s c r ib e id eals, I
im p ly so m eth in g m ore th a n th a t th e y be general in the sense
ad u m b rated in the p re ce d in g n o te. T h e o p p o site o f “ a b stract” is
“ c o n c r e t e ,” w h i l e the o p p o s i t e o f “ g e n e r a l ” is “ s p e c ific .” P u t t i n g the
p o in t c r u d e ly , a p rin cip le is a b s tr a c t to th e e x t e n t to w h ich i ts
p r o p e r a p p lic a tio n to c o n c r e t e cases seem s p r o b l e m a t i c e v e n after
it h a s b e e n e x h a u s t iv e l y s t a t e d . W h i l e m u c h m o r e n e e d s to b e d o n e
to c l a r i t y this n o t io n , I fin d D w o rk in and G a llie su g g e s tiv e h e re.
Se e R o n a l d D w o rk in , “The Ju risp ru d e n ce o f R ic h a rd N ix o n ,” 18
The New York Review of Books, 2 7 - 2 8 ( M a y 4, 1 9 7 2 ) ; W . B . G a l l i e ,
“ E s s e n t i a l ly C o n t e s t e d C o n c e p t s , ” 5 6 Proceedings of the Aristotelian
Society 16 7 (1956 ).
E v e n if th e n o t io n o f a b s tr a c tn e s s w e r e p e r f e c t l y c lea r, it m a y b e
su g g e s te d th a t I h a v e a r b i t r a r i l y r e s tric te d the d o m a i n o f p o s s ib le
C o m p re h e n siv e V ie w s by re q u irin g th a t its c o n s t it u e n t e le m e n ts
b e a b s tr a c t as w e ll as g e n e r a l . W h i l e this is a d e e p q u e s t io n , as to
w h ic h m uch can b e sa id , I d o n o t t h i n k a d e c is io n p ro visio n a lly
a c c e p t i n g a r e q u i r e m e n t th a t p r i n c i p l e s b e r e l a t i v e l y a b s t r a c t is o f
a n y p r a c t ic a l s ig n ific a n c e in the a n a ly s is o f c o n t e m p o r a r y A m e r i c a n
la w . W h e n w e t u r n to c o n s id e r in c h a p t e r s 3 a n d 4 the s ta te m e n ts
o f p r i n c i p l e th a t A m e r i c a n l a w y e r s w o u l d ta k e as s e rio u s c a n d id a t e s
f o r the p o s itio n o f C o m p r e h e n s i v e V i e w , w e w i l l fin d th a t h i g h l y
a b s tr a c t c o n c e p t s a b o u n d in e a c h o f th e m . C o n s e q u e n t l y , I d o n o t
t h in k w e need p r e o c c u p y o u r s e lv e s w i t h th e a b s tr a c tn e s s q u e s t io n
in a w o r k o f a p p l i e d j u r i s p r u d e n c e lik e the p r e s e n t o n e .
1 9 . B y s a y in g th a t th e P o l i c y m a k e r p r e s u m e s h is p r i n c i p l e s f o r m a
s e lf-c o n siste n t w h o le I m ean th re e th in g s. F ir s t, a p e rfe ctly satis
fa cto ry C o m p re h e n siv e V ie w is a whole in th a t a t le a s t o n e o f its
p r i n c i p l e s m a y b e p r o p e r l y i n v o k e d in e a c h d is p u t e th a t c o u l d b e
brought b efo re th e le g a l s y s te m fo r r e s o lu t io n . Second, it is self-
consistent in t h a t its p r in c i p l e s , i f r i g h t l y a p p l i e d , w i l l l e a d to o n e ,
a n d o n l y o n e , d o c t r i n a l s o lu t io n in e v e r y case. ( N o t e th a t th is d o es
n o t r e q u i r e th e d o c t r i n a l s o lu t io n to s p e c if y a u n i q u e s u b s t a n t iv e
o u t c o m e in e v e r y case. I t m a y be, f o r e x a m p l e , th a t a p r o p e r a p p l i
c a t io n o f th e C o m p r e h e n s i v e V i e w l e a d s to th e c o n c l u s io n th a t a set
o f outcom es { A , B . . . } w i l l sa tis fy e q u a l l y w e l l the u l t i m a t e e n d s o f
th e le g a l system . T h i s is a ll r ig h t so l o n g as it is n o t th e case th a t a n
e q u a l l y v a l i d a n a ly s is r e a c h e s th e c o n c l u s io n th a t A , o r o n e o f the
o t h e r m e m b e r s o f the first o u tc o m e -s e t, c o n s t it u t e s a n i m p r o p e r s u b
s t a n t iv e r e s p o n s e o f the le g a l system .)
F i n a l l y , b y s t i p u l a t i n g th a t th e P o l i c y m a k e r presumes th e C o m p r e
hen sive V ie w to b e a s e lf-c o n siste n t w h o l e , I w is h to su ggest the
r e q u is i t e d e c i s io n - p r o c e d u r e th a t m u s t b e f o l l o w e d w h e n a ju d g e ’s
in i t i a l c o n s id e r a t io n of a p a r t i c u l a r case r e v e a ls t h a t th e e x i s t i n g
leg a l syste m fa lls sh o rt o f th e tw o form al id e a ls d is c u ss e d in the
p r e c e d i n g p a r a g r a p h . T h a t is, w h e n a n i n i t i a l a n a ly s is o f a case s u g
gests th a t th e j u d g e ’s u n d e r s t a n d i n g o f th e C o m p r e h e n s i v e V i e w is
in c o m p l e t e or s e lf-c o n t r a d ic t o r y , th e P o lic ym a k e r w ill n o n e th e le s s
i n v o k e th e p r e s u m p t i o n th a t th e p r o p e r state o f a ffa irs is o t h e r w is e
a n d p r o c e e d to r e fin e a n d e l a b o r a t e h is u n d e r s t a n d i n g o f th e C o m
p re h e n siv e V ie w so th a t he m ay gen erate a fin a l le g a l a n a ly s is
w h i c h y i e l d s a s e lf-c o n siste n t a n d c o m p l e t e c o n c e p t i o n o f th e C o m
p re h e n siv e V ie w .
20. T h e r e a d e r t r a i n e d in w e l f a r e e c o n o m ic s s h o u ld r e c o g n iz e th a t
th e d e c i s io n - p r o c e d u r e d e s c r ib e d in th e t e x t is su fficien tly g e n e r a l to
e m b r a c e the a p p r o a c h w i t h w h i c h h e is f a m il i a r . T h u s , th e s t a n d a r d
B e rg so n ia n -S a m u e lso n ia n so cial w elfare fu n ctio n w o u ld fo rm a lly
q u a lify as a C o m p r e h e n s i v e V ie w ; and th e standard LaG ran gean
p r o c e s s o f m a x i m i z i n g th e so c ia l w e l f a r e f u n c t i o n w o u l d p r o v i d e a
t e c h n i q u e a P o l i c y m a k e r m i g h t use to i d e n t i f y th e r u l e w h i c h b est
f u lf ille d th e C o m p reh en siv e V iew . For an a c c e s s ib le accou n t, see
F ra n cis M . B ator, “ T h e S im p le A n a lytics o f W e lfa r e M a x im iz a tio n ,”
4 7 Amer. Econ. Rev. 2 2 ( 1 9 5 7 ) . S i n c e th e n o r m a l e c o n o m i c o p t i m i
z a tio n t e c h n iq u e s a r e o f a m a t h e m a t i c a l c h a r a c t e r , w h i c h d o n o t d e
p e n d f o r t h e ir v a l i d i t y u p o n o r d i n a r y w a y s o f t a lk in g , it fo ll o w s th a t
NOTES TO PAGE 1 1 x97
the e c o n o m i c a p p r o a c h to l a w p r o v i d e s a p a r a d i g m a t i c in s ta n c e o f
S c ie n tific P o l i c y m a k i n g , h o w e v e r m u c h p a r t i c u l a r p r a c t it i o n e r s m a y
d iffe r c o n c e r n i n g the n a t u r e o f the so cial w e l f a r e f u n c t i o n (i.e., the
i d e n t it y o f the r e l e v a n t C o m p r e h e n s i v e V i e w ) a n d th e k i n d s o f o p
tim iz a tio n t e c h n iq u e s th a t best p e r m i t o n e to u n d e r s t a n d the w a y s
the so cial w e l f a r e f u n c t io n c a n be m a x i m i z e d (i.e. th e i d e n t i t y o f the
r e l e v a n t S c ie n t if ic l a n g u a g e ) . It s h o u ld b e e m p h a s iz e d , h o w e v e r , th a t
w h i l e the m o d e r n e c o n o m ic a p p r o a c h to l a w r e p r e s e n ts a p a r a d i g
m a t i c in s ta n c e o f S c ie n t ific P o l i c y m a k i n g , it is h a r d l y the o n l y w a y
o f f u l f il l in g the n e c e s s a ry c o n d it io n s fo r this f o r m o f l e g a l t h o u g h t .
A n o t a b l e e x a m p l e o f a n a l t e r n a t i v e S c ie n tific P o l i c y m a k i n g f o r m is,
o f co urse, th e w o r k o f P r o fe s s o rs M c D o u g a l a n d L a s s w e l l ; see, e.g.,
t h e ir “ C r i t e r i a fo r a T h e o r y A b o u t L a w , ” 4 4 So. Cal. L. Rev. 3 6 2
( 1 9 7 1 ) . T h e s e m a tte r s w il l be d isc u ss ed m o r e e x t e n s i v e l y in c h a p s . 2
a n d 7.
21. I d o n o t t h i n k it p r o p e r to set d o w n a firm n u m e r i c a l lim i t
a n d d e c l a r e th a t n o C o m p r e h e n s i v e V i e w m a y c o n t a in m o r e t h a n x
p r in c ip le s . T h i s is so n o t o n l y b e c a u s e the d e t e r m i n a t i o n o f w h i c h
v e r b a l f o r m u l a t i o n s a re to c o u n t as o n e p r i n c i p l e , r a t h e r t h a n m a n y
p r in c ip le s , is its elf a p r o b l e m a t i c m a tte r , b u t f o r r e a s o n s th a t i m
p lic a t e the n a t u r e o f th e r e q u i r e m e n t itself. M y in s is te n c e u p o n a
r e l a t i v e ly sm a ll n u m b e r o f p r i n c i p l e s is n o t m o t i v a t e d b y a n a e s th e tic
im p u l s e b u t r a t h e r b y a fe a r th a t the lim itle s s e n u m e r a t i o n o f p r i n
c ip le s w il l m ake P o licym a k in g an u n te n a b le p r o fe s s io n a l a c t iv it y .
T o see this o n the p r a c t ic a l le v e l w e c a n n o te th a t w i t h a l a r g e n u m
b e r o f p r in c ip le s , a P o l i c y m a k i n g l a w y e r o r j u d g e w i l l b e f a c e d w i t h
the f o r m i d a b l e task o f s e le c t in g o u t o f the m ass o f p r i n c i p l e s th a t
su bset a r g u a b l y r e l e v a n t to his p a r t i c u l a r d e c is io n . A t a c e r t a i n p o i n t
the cost o f this p r e l i m i n a r y a c t iv it y w il l m a k e the e n t ir e P o l i c y m a k
i n g e n t e r p r is e im p r a c t ic a l . I t fo ll o w s that, as the n u m b e r o f p r i n c i
p le s in creases, the C o m p r e h e n s i v e V ie w m u s t also c o n t a i n “ s e a rc h
p rin cip les” t e l l in g p ractitio n ers w h ic h classes o f s u b s t a n t iv e p rin
c ip le s th e y s h o u ld co n su lt b efore co m p le tin g th e ir p r a c t ic a l l e g a l
a n a lys is. It s h o u ld be a p p a r e n t th a t this m u l t i l e v e l s t r u c t u r e c a n
its e lf so o n b e c o m e u n m a n a g e a b l e .
P u t t i n g a s id e p r a c t ic a l d ifficulties, h o w e v e r , th e r e is a s e c o n d r e a
son f o r r e q u i r i n g a c e r t a in le v e l o f s im p lic it y . I n o r d e r f o r a P o l i c y
m a k i n g system to b e f u n c t i o n i n g c o h e r e n t ly , th e r e m u s t b e so m e
o c c a s io n s u p o n w h i c h at least so m e p r o fe s s io n a l p e o p l e a t t e m p t to
a p p r a i s e the e x t e n t to w h i c h th e v a r i o u s p r i n c i p l e s sa id to c o n s t it u t e
19 8 NOTES TO PAGE 14
th e C o m p re h e n siv e V ie w in fa c t c o m p r is e a s e lf-c o n siste n t w h o le

th a t e x p r e s s e s id e a ls w o r t h y o f state s u p p o r t . Y e t as p r i n c i p l e s b e
c o m e m o r e n u m e r o u s ( a n d less a b s t r a c t a n d g e n e r a l ) , it w i l l b e c o m e
in c r e a s i n g l y d ifficu lt to p e r f o r m this f u n c t i o n w i t h a n y c r e d i b i li t y .
In sh ort, as th e n u m b e r o f p r i n c i p l e s in crea ses, it b e c o m e s h a r d e r
b o t h f o r p r a c t i t i o n e r s a n d s c h o la r s to assert th a t t h e ir le g a l sy ste m is
s t r u c t u r e d so as to p e r m i t t h e m to select a n d a p p r a i s e r u le s o n th e
b a s is o f a set o f a b s t r a c t id e a ls th a t f o r m a s e lf-c o n siste n t w h o l e .
W hen this c l a i m c a n n o l o n g e r p l a u s i b l y b e m a d e , th e C o m p r e h e n
sive V i e w v io la t e s th e r e q u i r e m e n t t h a t it c o n t a i n a r e l a t i v e l y s m a ll
n u m b e r o f p r i n c i p l e s . I t is, o f co u rse , o n e o f th e v i r t u e s o f U t i l i t a r
i a n i s m t h a t it p e r m it s th e e a s y s t a t e m e n t o f th e le g a l s y s te m ’ s C o m
p re h e n siv e V i e w in te rm s o f a s in g le p r i n c i p l e o f g r e a t a b s t r a c t io n
and ge n era lity. But I th in k it a p p a r e n t th a t th e le g a l p r o fe s s io n
c o u l d t o le r a t e a m u c h g r e a t e r d e g r e e o f c o m p l e x i t y if it s e e m e d th a t
an altern ative C o m p re h e n siv e V ie w better expressed th e s t a t e ’s
u l t i m a t e id e a ls.
2 2 . A t m o st, th is r e c o g n i t i o n w il l l e a d th e S c ie n t if ic P o l i c y m a k e r to
i n t r o d u c e a n e w a b s t r a c t a n d g e n e r a l p r i n c i p l e d e a l i n g w i t h th e e x
tent to w h ich s o c ia lly leg itim ate e xp e c ta tio n s sh ou ld be afforded
le g a l p r o t e c t i o n d e s p it e th e fa c t th a t r e l i a n c e w o u l d n o t b e ju s tifie d
in a w o rld in w h i c h th e C o m p r e h e n s i v e V i e w had been p e rfe ctly
i n s t i t u t io n a l iz e d . E v e n this m o d if ic a t i o n , h o w e v e r , is n o t a l w a y s r e
q u i r e d . F o r e x a m p l e , th e le g a l sta tu s o f “ n o n - c o n f o r m i n g so c ia l e x
p e c t a t i o n s ” u n d e r a U t i l i t a r i a n C o m p r e h e n s i v e V i e w w o u l d b e tested
b y th e p r i n c i p l e o f u t i l i t y ju s t lik e e v e r y o t h e r q u e s t io n . T h a t is, i f
th e u tility g a in e d by d e n y in g le g a l p ro tectio n exceeds th e u t i l i t y
lo st in d i s a p p o i n t i n g s o c ia l e x p e c t a t i o n s , th e n th e r e l i a n c e in te re s t
s h o u l d n o t b e p r o t e c t e d , w h i l e o t h e r w is e it s h o u l d b e. T h e s p e c ia l
p r o b l e m s th a t a ris e w h e n c o u r t s m a n n e d b y S c i e n t if ic P o l i c y m a k e r s
seek to p r o v i d e c o n s t i t u t i o n a l p r o t e c t io n to “ n o n - c o n f o r m i n g so cial
e x p e c t a t i o n s ” w i l l b e d is c u ss e d at p p . 6 0 - 6 4 , a n d 8 3 .
2 3 . A l m o s t e v e r y w o r d in this s e n te n c e c o u l d p r o f i t a b l y b e d e fin e d
a n d d is c u ss e d at l e n g t h . T h i s is n o t th e tim e , h o w e v e r , to m a k e a
fu ll-s c a le attem pt, though th e w ords “ p rin c ip le ,” “ a b s t r a c t ,” and
“ g e n e r a l ” h a v e b e e n g i v e n s e p a r a t e t r e a t m e n t a t n o te s 17 and 18,
s u p r a . M o r e o v e r , I h o p e t h a t so m e o f th e o b s c u r it ie s th a t r e m a in
w i l l b e c la r ifie d b y th e m o r e e x t e n s iv e d is c u s s io n o f O r d i n a r y O b
s e r v i n g to b e f o u n d in c h a p . 5.
2 4 . A s A r i s t o t l e p u t it: “ I t is th e m a r k o f a n e d u c a t e d m a n to l o o k
NOTES TO PAGES 1 5 - 1 8 199
fo r p r e c is io n in e a c h class o f th in g s ju s t as f a r as th e n a t u r e o f the
s u b je c t a d m its ; it is e v i d e n t l y fo o lis h to a c c e p t p r o b a b l e r e a s o n i n g
f r o m a m a t h e m a t i c i a n , a n d to d e m a n d f r o m a r h e t o r i c i a n scie n tific
p r o o f s .” Nichomachean Ethics I. iii. i o g 4 b2 4 - 7 (tr. W . D . R o s s ).
25. O r as P lato m igh t put it, the O rd in a ry O bserver m ista k e s
r h e t o r i c fo r ju s tic e . R h e t o r i c is a f o r m o f fla tte r y — lik e c o o k e r y —
“ [ a im in g ] at w h a t is p le a s a n t, i g n o r i n g the g o o d , a n d I insist th a t it
is n o t a n a rt, b u t a r o u t i n e b e c a u s e it c a n p r o d u c e n o p r i n c i p l e in
v ir t u e o f w h i c h it o ffers w h a t it does, n o r e x p l a i n the n a t u r e th e r e o f,
a n d c o n s e q u e n t l y is u n a b l e to p o i n t to the c a u s e o f a n y t h i n g it
o ffe rs.” Gorgias 4 6 5 a (tr. L a n e C o o p e r ) .
2 6 . T h e s e e a r l i e r S c ie n tis ts also i m a g i n e d th a t th e ir h is to r ic a l a n a l
ysis w o u l d y i e l d a b o d y o f p r i n c i p l e s su fficien tly a b s tr a c t a n d self-
c o n s is te n t to c o n s t it u t e a C o m p r e h e n s i v e V i e w . T h u s , a s p e c ia l k in d
o f S c ie n t ific O b s e r v i n g s e rv e d as the f o u n d a t i o n f o r S c ie n t if ic P o l i c y
m a k i n g d u r i n g th e “ C l a s s i c a l ” p h a s e o f A m e r i c a n le g a l t h o u g h t at
the tu r n o f th e c e n t u r y .
O f c o u rse , m u c h o f le g a l th o u gh t over the past fifty y e a r s h a s
s o u g h t, in o n e w a y o r a n o t h e r , to d e a l w i t h th e b r e a k d o w n o f the
C la s s ic a l e n t e r p r is e . S e e D u n c a n K e n n e d y , “ F o r m a n d S u b s t a n c e in
P riv a te L a w ’ A d ju d i c a t i o n ,” 89 Harv. L. Rev. 1685, 1713-78 (1976 );
B r u c e A . A c k e r m a n , “ L a w a n d th e M o d e r n M i n d , ” 1 0 3 Daedalus 119
(19 74 ). From this p o i n t o f v ie w , the p r e s e n t essay d o e s m o r e th a n
m a k e th e a n a l y t i c p o in t th a t th e “ C l a s s i c a l ” k in d o f S c ie n t if ic P o l i c y
m a k i n g is b u t a s p e c ia l case o f a f a r m o r e g e n e r a l fo rm o f legal
t h o u g h t . It also seeks to d e m o n s t r a t e th a t th e p r e s e n t g e n e r a t i o n o f
l a w y e r s is in fact d e v e l o p i n g a k in d o f S c ie n t ific P o l i c y m a k i n g q u i t e
d is t in c t f r o m the C la s s ic a l o n e in b o t h v o c a b u l a r y , m e th o d s , a n d u l t i
m a te v a lu e s . T h i s is n o t to d e n y , o f c o u rse , th a t th e re are so m e s im i
la r itie s b e t w e e n p r e s e n t P o l i c y m a k i n g e ffo rts a n d C la s s ic a l o n es. I t is
o n l y to say th a t the m o d e r n e n t e r p r is e c a n n o t b e d is m iss e d b y c a s u a l
referen ces to th e C la s s ic is ts ’ a t t e m p t to g r o u n d a C o m p reh en siv e
V i e w o n a n a r r o w c o n c e p t i o n o f the c o m m o n l a w th a t h a d little h is
to ric a l d e p t h a n d e v e n less p o w e r to g u i d e o u r f u t u r e . W h a t e v e r th e
f a il in g s o f th e c o n t e m p o r a r y P o l i c y m a k i n g m o v e m e n t , t h e y a re at
least d if f e r e n t f r o m those o f th e past.
2 7 . Se e , e.g., S t a n l e y C a v e l l , “ M u s t W e M e a n W h a t W e S a y ? ” in
V . C . C h a p p e l l , ed., Ordinary Language 75 (1964); B en so n M ates,
“ O n the V e r i f i c a t i o n o f S t a t e m e n t s A b o u t O r d i n a r y L a n g u a g e , ” id.,
6 4. G o o d a n t h o l o g ie s h a v e b e e n c o m p i l e d b y F o d o r a n d K a tz , The
200 NOTES TO PAGE 20
Structure of Language ( 1 9 6 4 ) ; a n d D a v id so n a n d H a rm a n , Semantics

of Natural Language ( 1 9 7 2 ) .
2 8 . O r , as J . L . A u s t i n p u t it, “ I t seem s to b e to o r e a d i l y a ss u m e d
th a t if w e c a n o n l y d is c o v e r th e tr u e m e a n i n g o f e a c h o f a c lu s te r
o f k e y term s, u s u a l l y h is to r ic term s, th a t w e use in s o m e p a r t i c u l a r
field (as, f o r e x a m p l e , ‘r i g h t ’, ‘g o o d ’ a n d th e rest in m o ra ls ), th e n it
m u s t w i t h o u t q u e s t io n t r a n s p i r e th a t e a c h w i l l fit in to so m e sin g le ,
i n t e r lo c k in g , c o n s is te n t, co n cep tu al s c h em e . Not o n ly is th e re no
re a s o n to a s s u m e this, but a ll h i s t o r ic a l p ro b ab ility is a g a in s t it,
e s p e c i a l l y in th e case o f a l a n g u a g e d e r i v e d f r o m s u c h v a r i e d c i v i l i
z a tio n s as o u r s is. W e m a y c h e e r f u l l y s u b s c r ib e to, o r h a v e th e g r a c e
to b e to rn b e t w e e n , s i m p l y d is p a r a t e id e a ls — w h y must th e r e b e a
co n ce iva b le a m algam , th e Good L ife fo r M an?” “A P le a for E x
Proceedings of the Aristotelian Society 1, 29 , n . 1 6 ( 1 9 5 6 ) .
c u s e s,” 5 7
29. In his recent article, “ Hard Cases,” 88 Harv. L. Rev. 1 0 5 7
975 ), P rofessor D w o rk in qu ite s e lf-c o n s c io u s ly accep ts a P o licy
m a k i n g p o i n t o f v ie w , w h i c h “ c o n d e m n s th e p r a c t ic e o f m a k i n g d e
c is io n s th a t se e m r i g h t in is o la tio n , b u t c a n n o t b e b r o u g h t w i t h i n
so m e c o m p r e h e n s i v e t h e o r y o f g e n e r a l p r i n c i p l e s a n d p o lic ie s t h a t is
c o n s is te n t w ith other d e c is io n s also thought rig h t.” Id. at 1064.
D w o r k i n ’ s c o m m i t m e n t to O r d i n a r y a n a ly s is , h o w e v e r , is n o less c lea r.
C o n s i d e r th e m e t h o d p u r s u e d b y D w o r k i n ’ s id e a l j u d g e , H e r c u l e s , as
h e seeks to e la b o r a t e a C o m p r e h e n s i v e V i e w in w h i c h th e c o n c e p t
o f d i g n i t y is to p l a y a n i m p o r t a n t r o le : “ T h i s is a p r o c e s s t h a t c a n
u s e f u l l y b e seen as o c c u p y i n g tw o stages. H e r c u l e s w i l l n o tic e , s i m p l y
as a m a t t e r o f u n d e r s t a n d i n g h is l a n g u a g e , w h i c h a re th e c l e a r set
tle d cases in w h i c h th e c o n c e p t h o ld s. H e w i l l n o tic e , f o r e x a m p l e ,
t h a t i f o n e m a n is t h o u g h t to tr e a t a n o t h e r as h is s e r v a n t, t h o u g h
h e is n o t in fa c t th a t m a n ’s e m p l o y e r , th e n h e w i l l b e t h o u g h t to
have in v a d e d h is d ig n i t y . He w ill next try to put h im self . . .
w i t h i n th e m o r e g e n e r a l sc h e m e o f b e lie fs a n d a t t it u d e s o f tho se w h o
va lu e th e co n cep t. . . . p u t[tin g ] to h i m s e l f . . . q u e s t io n s about
th e d e e p m o r a l i t y th a t g iv e s the c o n c e p t v a l u e . ” I d . a t 1 1 0 6 - 0 7 .
I n th e c o n t e x t o f A m e r i c a n so ciety, h o w e v e r , th e “ d e e p ” q u e s t io n s
o n e asks, a n d th e “ d e e p ” v a l u e s o n e finds, w i l l d e p e n d u p o n th e
p articu lar patterns o f “ su rface ” ta lk and a c t io n upon w h ich one
c o n c e n t r a t e s a t the “ first” stage. T h u s , th e “ c l e a r c ases” o f a b r e a c h
o f d i g n i t y in a m a r r i a g e w i l l v e r y m u c h d e p e n d o n th e class a n d
c u l t u r e o f th e c o u p l e a n d m a y b e o r g a n iz e d o n v e r y d iffe r e n t p r i n
c ip l e s th a n those w h i c h s t r u c t u r e th e c o n c e p t o f d i g n i t y in e m p l o y
m e n t r e l a t i o n s h ip s o f o n e k i n d o r a n o t h e r . I n short, if o n e w e r e to
p o sit tw o of D w o r k i n ’s id e a l ju d g e s— H e rcu le s and A j a x — th e re
w o u l d b e n o t h i n g to p r e v e n t th e m f r o m r e a d i n g v e r y d iffe r e n t u n
d e r s t a n d in g s o f the p r e v a i l i n g C o m p r e h e n s i v e V i e w o n th e b a sis o f
d iffe r e n t sets o f “ c le a r, se ttled cases” se le c te d at the “ first-stage”
i n q u i r y . It w o u l d seem , th e n , th a t D w o r k i n ’ s c o m m i t m e n t to O r d i n a r y
a n a ly s is w il l le a d h i m to the c o n c lu s io n th a t a n u m b e r o f d iffe r e n t
C o m p r e h e n s i v e V i e w s h a v e e q u a l title to r e c o g n it io n as l e g a l l y b i n d
i n g w i t h i n th e sa m e le g a l system . W h i l e D w o r k i n a p p a r e n t l y r e c o g
nizes this p o s s ib ility , see id. at 1 1 0 5 , it is fo r q u i t e d iffe r e n t rea so n s.
C hapter 2
1. P r o b a b l y the m o st p o p u l a r t o d a y is the d is t in c t iv e v o c a b u l a r y
d e p l o y e d b y the p r a c t it i o n e r s o f the so -c a lled e c o n o m i c a p p r o a c h to
The Costs of Accidents
l a w ; see G u i d o C a l a b r e s i , (19 70 ); R ich a rd A .
P o s n e r , Economic Analysis of Law ( 1 9 7 3 ) , B r u c e A . A c k e r m a n , ed.,
Economic Foundations of Property Law ( 1 9 7 5 ) . T h is w ork rep re
sents th e m ost r e c e n t m a n i fe s t a t i o n o f a n a p p r o a c h th a t c a n tr a c e its
an teced en ts through B en th am back at least to H o b b e s . A se c o n d ,
q u ite d iffe r e n t, le g a l a n alytic has been d e v e lo p e d by P r o fe s s o rs
M c D o u g a l a n d L a s s w e l l ; see M y r e s S. M c D o u g a l a n d H a r o l d G . L a ss-
w e ll, The Jurisprudence of a Free Society: Studies in Law, Science
and Policy ( f o r t h c o m i n g ) ; L a s s w e l l a n d M c D o u g a l , “ C r i t e r i a fo r a
T h e o r y A b o u t L a w , ” 4 4 So. Cal. L , Rev. 3 6 2 ( 1 9 7 1 ) . M o r e p e r v a s iv e
th a n e it h e r o f the p r e c e d i n g v o c a b u l a r i e s is the set o f c o n c e p t s d e
velo p ed by W e sley N. H o h fe ld , Fundamental Legal Conceptions
(1919). For so m e com m ents on the s t r ik i n g ly d iffe r e n t t e c h n ic a l
v o c a b u l a r y d e v e l o p e d o n the C o n t i n e n t , see n. 3, in f r a .
2. A p a r t i c u l a r l y s e n s itiv e t r e a t m e n t o f the p r o b l e m o f r e ific a tio n
m a y be f o u n d in A r t h u r A . L e ff, “ C o n t r a c t as T h i n g , ” 1 9 Am. U.L.
Rev. 1 3 1 (1970).
3. I have attem p ted in the p re ce d in g paragraphs to p ro vid e a
s t r a i g h t f o r w a r d a c c o u n t o f th e b e d r o c k c o n v e n t i o n a l w i s d o m a b o u t
p r o p e r t y c u r r e n t l y p r e v a i l i n g in e n l i g h t e n e d l e g a l circles. W h i l e it
is p o ss ib le to c ite s i m il a r a c c o u n ts , a f e w c it a t io n s c a n n o t p r o v e the
i m p o r t a n t p o i n t — th a t m y p r e s e n t a t i o n d o e s in fa c t c o n f o r m to the
c o n v e n t i o n a l t h i n k i n g o n the s u b je c t. F o r w h a t it is w o r t h , n o n e o f
the m a n y p e o p l e w h o h a v e r e a d this b o o k in m a n u s c r i p t f o r m h a v e
fa ile d to r e c o g n iz e th e a c c o u n t as p a r t o f th e ir o w n t r a d it io n . T h o s e
w h o w is h to tra c e the p a t t e r n s m o r e c a r e f u l l y in th e l it e r a t u r e c o u l d
w ell b eg in w ith G u i d o C a la b re si a n d A . D o u g la s M e la m e d , “ P r o p
erty R u le s, L ia b ility R u le s, and In a lie n a b ility : One V ie w of th e
C a t h e d r a l , ” 8 5 Harv. L. Rev. 1 0 8 9 , 1 0 9 0 —9 3 ( 1 9 7 2 ) ; M y r e s S. M c -
D ougal and D a v id H aber, Property, Wealth, L a n d 1-113 (1948).
T h e s e th e m e s a r e c a r r i e d t h r o u g h in th e c o m m o n l y u s e d p r o p e r t y
c a s e b o o k s ; see, e.g., C h a r l e s D o n a h u e , J r . , T h o m a s E . K a u p e r , a n d
P eter W. M a rtin , Property 1-28 8 (1974); C u rtis J. Berger, La n d
Ownership and Use 1 - 7 9 (1975). S im ila rly, tho se e c o n o m is ts con
c e r n e d w i t h le g a l issues w o u l d fin d n o t h i n g h e r e w i t h w h i c h th e y
w o u l d d is a g r e e . P r o f e s s o r M c K e a n ' s s t a t e m e n t is t y p i c a l : “ T h e b a s ic
t h i n g s th a t w e e x c h a n g e a r e n o t p r o d u c t s ’ p h y s i c a l f e a t u r e s as s u c h
but rath er packages of r ig h t s to do th in gs w ith tho se fe a t u r e s .”
R o la n d N. M cKean, “ P roducts L ia b ility: Im p lic a tio n s of Som e
C h a n g i n g P r o p e r t y R i g h t s , ” 8 4 Q . / . Econ. 6 1 1 ( 1 9 7 0 ) .
H o w ever broad th e a g r e e m e n t a m o n g s t S c ie n t is t s in th e A n g l o -
A m erican leg a l w o rld , it sh ou ld be e m p h a s iz e d th a t my account
d o e s n o t r e p r e s e n t th e o n l y w a y to t h i n k a b o u t p r o p e r t y o n c e o n e
h a s a c c e p t e d S c i e n t if ic p re m is e s . I n d e e d , E u r o p e a n l a w y e r s — t h o u g h
d e e p l y c o m m i t t e d to th e d e v e l o p m e n t o f a t e c h n ic a l le g a l v o c a b u l a r y
— h a v e n o n e t h e l e s s d e v e l o p e d a v e r y d if f e r e n t t e c h n ic a l l a n g u a g e to
d e a l w i t h p r o p e r t y r e l a t i o n s h ip s . R a t h e r th a n r e j e c t i n g “ o w n e r s h ip
falk M m is g u i d e d , r . n n f i n e n t a l l a w y e r s ta k e th e id e a v e r y s e rio u s ly,
try in g b o th to g i v e th e c o n c e p t a t e c h n i c a l m e a n i n g a n d to l im i t
q u i t e s tr ic tly th e w a y s in w h i c h n o n - o w n e r s m a y h a v e r ig h t s in a
t h i n g . T h e d if f e r e n c e in th e tw o m o d e r n a p p r o a c h e s d o u b t l e s s m a y
be e x p la in e d in part by h is to r y . On th e o n e hand, th e m odern
A m e r i c a n S c i e n t is t 's s k e p t ic is m a b o u t th e u t i l i t y o f d e s c r i b i n g s o m e
o n e as “ t h e ” o w n e r o f a t h i n g a n d h is d e l i g h t in th e d i v e r s it y o f
p r o p e r t y p a c k a g e s m a y b e t r a c e d to th e f e u d a l o r ig in s o f th e co m -
m o n l a w o f p r o p e r t y , w h e r e th e d i s t r i b u t i o n o f r ig h t s to l a n d a m o n g
a v a r i e t y o f p e r s o n s w a s a c e n t ra l c o n c e r n . O n th e o t h e r h a n d , th e
m o d e r n C o n t i n e n t a l ’s e m p h a s i s o n o w n e rsh ip has an o b vio u s re la -
t io n s h ip to th e r a t h e r u n i t a r y c o n c e p t i o n o f p r o p e r t y t r a d i t i o n a l in
iR o m a n law . M oreover, th e e n t ir e co n ce p tio n o f p ro p e rty p lay s^ a
far less c e n t r a l r o le in European le g a l th ough t th an it d o e s Tn
"~Am e i i c a Tr, " W h ich h e lp s e x p l a i n why th e C o n t i n e n t a l s h a v e got~~b5r
w i t h a set o f n o t i o n s th a t s e e m e x t r a o r d i n a r i l y u n s o p h i s t i c a t e d a n d
r i g i d to th e t y p ic a l A m e r i c a n la w y e r . I n sh ort, a l t h o u g h th e C o n t i
n e n t a l c o n c e p t i o n o f p r o p e r t y is e q u a l l y t e c h n ic a l in o r ig in s , it c o n
f o r m s f a r m o r e c lo s e ly to th e p a t t e r n s o f n o n p r o f e s s i o n a l ta lk th a n
NOTES TO PAGE 3 1 203
d o e s th e A n g l o - A m e r i c a n c o n c e p t io n . T h e r e s u lt is q u i t e e x c e p t i o n a l
w h e n v i e w e d f r o m a c o m p a r a t i v e p e r s p e c t iv e — f o r it is a p l a t i t u d e
a m o n g c o m p a r a t is t s th a t E u r o p e a n s u b s t a n t iv e l a w is g e n e r a l l y fa r
m ore t e c h n ic a l l y r e fin e d th a n its co m m o n -la w cou n terpart. As
L l e w e l l y n r e m a r k e d : “ [If] all o u r le g a l t h i n k i n g . . . w e r e th e t h i n k
i n g o f a sk ille d c o n v e y a n c e r w h e n c o n v e y a n c i n g . . . , th e n A m e r
ic a n l a w y e r s w o u l d fe e l less lik e zoo s p e c im e n s w h e n present at a
g a th e rin g of C o n tin e n ta l la w y e rs ." K arl N. L le w e lly n , “ R u le of
'L l i u m b and P rin c ip le ," in W . T w in in g , ed., The K a rl Llew ellyn
Papers 9 ( 1 9 6 8 ) . F o r a fine in t r o d u c t io n to the c o m p a r a t i v e l a w o
p r o p e r t y , as w e ll as u s e fu l r e f e r e n c e s to the r a t h e r l i m i t e d c o m p a r a -
tive l it e r a tu r e , see J o h n H e n r y M e r r y m a n , “ O w n e r s h i p a n d E s t a t e , "
4 8 Tulane Law Review 9 1 6 ( 1 9 7 4 ) .
4. I n th e cases th a t w il l c o n c e r n us, the c l a im a n t s h a v e s u ffe re d a
r e a l m o n e y loss as a r e s u lt o f the le g is la t iv e r e d i s t r ib u t io n o f p r o p e r t y
righ ts. W h ile this req u irem en t of a real loss m a y se em o b v io u s ,
c la im s fo r c o m p e n s a t i o n a re s o m e tim e s ra is e d th a t m a y b e d e n i e d
fo r f a il u r e to fu lfil this t h r e s h h o ld c o n d it io n . I m a g i n e , fo r e x a m p l e ,
th a t as a resu lt of th e general p attern of e c o l o g ic a l regu latio n ,
J o n e s ’ s l a n d in c re a s e s in v a l u e f r o m $ 2 5 , 0 0 0 to $ 4 0 ,0 0 0 b e c a u s e the
v a l u e to h i m o f the f o r b e a r a n c e o f o t h e r m a r s h o w n e r s is g r e a t e r to
h i m t h a n th e cost im p o s e d b y th e l a w ’ s d e m a n d that h e re s tric t his
own d e ve lo p m e n t. N e v e r t h e le s s , if J o n e s co u ld free h im self from
th e d e v e l o p m e n t l im i t a t i o n w h i l e th e o t h e r M a r s h a n s c o n t i n u e d to
b e re s tric te d , he w o u l d p ro fit e v e n m ore from th e n e w le g is la t iv e
e n a c t m e n t . F o r th e n h e w o u l d b e free to b u i l d the o n l y s k y s c r a p e r
o n the m a r s h , in c r e a s i n g the v a l u e o f h is l a n d to a m i ll io n d o lla rs .
G i v e n these facts, it s o m e tim e s h a p p e n s th a t J o n e s g o e s to c o u r t to
claim th a t th e l a w ’ s r e fu s a l to g r a n t h im an e xe m p tio n h a s cost
h i m $ 9 6 0 , (xx), fo r w h i c h the C o n s t i t u t i o n r e q u ir e s c o m p e n s a t io n . I t
s h o u ld b e a p p a r e n t , h o w e v e r , th a t r a t h e r t h a n c o s t in g h i m $ 9 6 0 ,0 0 0 ,
th e s ta tu te h a s b e n e fit t e d h i m by $ 15 ,0 0 0 and th a t J o n e s ’ s su it is
m e rely an a t t e m p t to g a i n an e v e n g r e a t e r sh a re o f the c o ll e c t iv e
b e n e fit g e n e r a t e d by th e sta tu te . W h i l e this e ffo rt raises c o m p l e x
q u e s t io n s d e serv in g s u s t a in e d a n a ly s is, no one has suggested th a t
th e e ffo rts o f g a i n e r s to o b t a i n e v e n g r e a t e r g a i n s c a n b e g r o u n d e d
o n c o n s t it u t i o n a l , r a t h e r t h a n s ta tu to r y , f o u n d a t io n s . C o n s e q u e n t l y ,
w e sh all ig n o r e these q u e s t io n s h e re . T o p u t the p o i n t m o r e g e n e r -
a lly . w e sh all b e a s s u m i n g th a t, as a r e s u lt o f a l e g i s l a t iv e e n a c t m e n t .
the c h n f E a n t h a s s u ffe re d a s u b s t a n t ia l f in a n c ia l loss t h a t w i l l n o t b e
204 NOTES TO PAGES 3 2 - 3 9
m ade u n e v e n in th e l o n g r u n , b y th e fa c t th a t o t h e r s w ill b e sub-

, j e c t e d to s i m il a r r e s tra in ts. F o r a m o r e e l e g a n t f o r m u l a t i o n o f this
id e a , see A. M itch ell P o l in s k y , “ P ro b a b ilistic C o m p e n sa tio n C ri
te ria ,” 86 Q.J. Econ. 407 (1972).
Som e readers have also called to my atten tion th e p o s s ib ility
th a t pro perty ow ners m ay have good re a s o n to a n t i c i p a t e d u rin g
T i m e O n e the p o s s ib ilit y th a t t h e ir r ig h t s w i l l b e res h u ffled a t T i m e
T w o . T h i s m a y m e a n th a t th e m a r k e t v a l u e o f t h e ir r ig h t s w i l l a l
ready have s u ffe r e d a d e p recia tio n b efo re th e fo rm al ta k in g has
occurred at T im e Two, s o m e tim e s le a d in g to a re la tive ly s m a ll
m arket d ro p a t th a t stage. W h i l e a ll this is s o m e tim e s true, e v e n
s o m e o n e w h o a n t i c i p a t e s th a t a t a k i n g is a p o s s ib il it y w i l l n e v e r t h e
less su ffe r a “ r e a l lo ss” o f so m e size a t T i m e T w o , e x c e p t u n d e r th e
m o st u n l i k e l y c o n d it io n s . M o r e o v e r , th e r e is n o re a s o n f o r the P o l i c y
m a k e r to l im i t h is v i e w o f th e d a m a g e to th e m o m e n t in tim e th a t
th e t a k i n g is a n n o u n c e d ; in s te a d , h e m a y ta k e in t o a c c o u n t th e costs
g e n e r a t e d d u r i n g e a r l i e r p e r io d s if th is w o u l d f u r t h e r th e C o m p r e
h e n s i v e V i e w h e h a s i m p u t e d to th e l e g a l system .
A l l this is n o t to d e n y th a t the e ase w i t h w h i c h th e p o s s ib il it y o f
a t a k i n g m a y b e fo re s e e n , a n d th e p r o p e r t y o w n e r ’s a t t it u d e t o w a r d
risk, is s o m t e im e s r e l e v a n t to a P o l i c y m a k e r 's a p p r o a c h to c o m p e n
s a tio n d a w ^ l n d e e d , it is s o m e tim e s v e r y r e l e v a n t , see p p . 4 3 - 4 6 , m t r a T
a n d also n. 3 3 , c h a p . 4. I t is o n l y to say th a t “ p a r t i a l l y a n t i c i p a t e d ”
t a k in g s cannot be e lim in a te d by the th r e s h o ld re q u irem en t of a
“ r e a l loss.”
5. A sam p le o f the last g e n e r a t i o n ’ s s c h o l a r s h ip w o u ld in c lu d e ,
am ong other t h in g s : A lex an d e r The Least Dangerous
M. B ic k e l,
Branch ( 1 9 6 2 ) , a n d The Supreme Court and the Idea of Progress
( 1 9 7 0 ) ; C h a r l e s L . B l a c k , J r . , The People and the Court: Judicial
Review in a Democracy ( i 9 6 0 ) ; J a n G . D e u t s c h , “ N e u t r a l i t y , L e g i t
i m a c y a n d th e S u p r e m e C o u r t : S o m e I n t e r s e c t io n s B e t w e e n L a w a n d
P o litica l S c ie n c e ,” 20 Stan. L. Rev. 169 (196 8); L e a rn e d H a n d , The
Bill of Rights ( 1 9 5 8 ) ; H e r b e r t W e c h sle r, “ T o w a r d N e u t r a l P rin cip les
of C o n stitu tio n a l L a w ,” in Principles, Politics, and Fundamental
Law (196 1).
The Bill of Rights, n. 5 , s u p r a .
6. S e e h is H o l m e s L e c t u r e s ,
7. J o h n R a w l s , A Theory of Justice 4 - 5 , 4 5 3 - 6 2 ( 1 9 7 1 ) .
8. S i n c e each of th e th re e r o le v a r i a b l e s can a ss u m e tw o b a s ic
v a lu e s , it is p o s s ib le to g e n e r a t e e ig h t l o g i c a l l y d is t in c t c o n c e p t io n s
of ju d icia l r o le : (CV,?,), ( C , D , P 2), (C A P ,), ( C , A , P 2), (R ,D ,P j),
( R , D , P 2), ( R , A , P , ) , ( R , A , P 2) w h e r e C = c o n s e r v a t iv e , R = r e fo r m is t,
D d e fe r e n t ia l , A = a c tiv ist, Px= p rin cip led and P2 = p r a g m a t ic .
Even this, h o w e v e r , is a s im p lific a t io n sin ce, as w e sh all see, th e re
m a y o f te n be se v e ra l p l a u s ib l e w a y s o f d e f i n in g e a c h o f the j u d i c i a l
o p t i o n s th a t t o le r a te o n e o r a n o t h e r f o r m o f in n o v a t i o n .
C hapter 3
1. C h a p . 7 lo c a te s this p r o b l e m o f P o l i c y m a k i n g j u r i s p r u d e n c e in
a w i d e r p h i l o s o p h i c a l se ttin g . Se e p p . 1 7 5 - 8 5 in fr a .
2. O f c o u rse , the g o o d U tilita ria n w il l c h o o se the m o d e l o f j u
d ic ia l ro le w h ic h , in his best j u d g m e n t , m a x im iz e s l o n g -r u n u tility .
B u t to th e p r e s e n t g e n e r a t i o n o f la w y e rs , at least, it m a y n o t b e at
all o b vio u s w h ic h ro le m odel w il l in fact gen erate th e l o n g -r u n
u tility-m a x im iz in g consequences. H ence the n ece ssity of f o c u s in g
u p o n the in s t i t u t io n a l v a r i a b l e as o n e o f i n d e p e n d e n t im p o r t a n c e .
3. In r u l i n g u p o n a p a r t i c u l a r l it ig a t e d case, a U t i l i t a r i a n j u d g e
w ill b e fre e to f r a m e a r u le th a t c o v e r s o n l y a v e r y s m a ll n u m b e r
o f a lm o s t id e n t ic a l s it u a t io n s a r is in g in the f u t u r e o r m a y in s te a d
s p e a k m o r e g e n e r a l l y a n d c o v e r a m o r e n u m e r o u s class u n d e r the
sa m e r u b r ic . N e e d l e s s to say, the g e n e r a l i t y w i t h w h i c h the r u l e is
f r a m e d is itself a q u e s t io n th a t a U t i l i t a r i a n w o u l d d e t e r m in e a ft e r
a se n sitiv e a p p r e c i a t i o n o f the costs a n d b en efits o f g r e a t e r s p e c i
ficity o r g e n e r a l i t y . F o r so m e g e n e r a l l y e n l i g h t e n i n g c o m m e n t s , see
Is a a c E h rlic h and R ich a rd A. Posner, “An E c o n o m ic A n a lysis o f
Legal R u le m a k in g ,” 3 /. of Legal Studies 2 5 7 ( 1 9 7 4 ) ; W e r n e r Z .
H ir s c h , “ R e d u c i n g L a w ’s U n c e r t a i n t y a n d C o m p l e x i t y , ” 2 1 U.C.L.A.
L. Rev. 1 2 3 3 (1974)-
4. F o r p r e s e n t p u r p o s e s w e sh all a ss u m e th a t th e r e is n o t h i n g o u r
risk -a v ers e citiz e n can do to r e d u c e the th r e a t o f a d v e r s e g o v e r n
m e n t a l a c t io n b y h i m s e l f e n g a g i n g in p o l it ic a l a c t iv it ie s — l o b b y i n g
a n d so f o r t h — to p r o te c t his fin a n c ia l in te rest. T h i s is, o f co urse, a n
u n r e a l is t ic p ic t u r e . In m any cases, d e n y in g c o m p e n s a t io n to the
M a r s h a n s w i l l i n d u c e th e m to in v e s t m o r e o f th e ir tim e t h a n t h e y
o t h e r w is e w o u l d in p o l it ic a l a c tio n . N o n e t h e le s s , I d o n o t t h i n k the
costs i n v o l v e d in th is p o l it ic a l k i n d o f a d a p t i v e b e h a v i o r w o u l d b e
c o n s id e r e d b y a r e s t r a in e d j u d g e as h e w e i g h e d the fe lic ific m e r it o f
a co m p e n satio n re q u irem en t. B efo re he m a y c o u n t the M a r s h a n s ’
in te n s ifie d p o l it ic a l a c t io n as a net cost, a j u d g e m u s t tak e it u p o n
h i m s e l f to m e a s u r e the p o s s ib le b en efits, b o t h to th e M a r s h a n s a n d
th e l a r g e r b o d y p o lit ic , th a t m a y f o l l o w u p o n t h e ir g r e a t e r p o l it ic a l
aw areness. And it is d ifficu lt to i m a g i n e a d e fe re n tia l ju d ge con

c lu d in g th a t th e in c r e a s e d p o litica l activity d id m ore h arm th a n
good.
T h i s is n o t to say, h o w e v e r , th a t th e tie b e t w e e n th e c o m p e n s a t i o n
re q u irem en t and th e c h a r a c t e r o f p o l i t i c a l a c t i v i t y w i l l a l w a y s b e
irrele va n t in le g a l a n a ly s is . In deed, it w il l be a cen tral issue f o r
a c t iv is t a d j u d i c a t i o n , to b e d is c u ss e d a t p p . 4 9 - 5 6 in f r a .
5 . T h e l it e r a t u r e o n th e f a i l u r e o f in s u r a n c e m a r k e ts is v a s t a n d
r ic h . A g o o d p l a c e to b e g i n is M a r k V . P a u l y , “ O v e r i n s u r a n c e a n d
P u b lic P ro visio n of In su ran ce: The R o les of M oral H azard and
Âdverse S e l e c t i o n , ” 88 Q.J. Econ. 4 4 ( 1 9 7 4 ) , w h i c h also cites the
m o st i m p o r t a n t r e c e n t w o r k in th e field. W h i l e th e p a s t d e c a d e h a s
seen c o n s id e r a b l e a d v a n c e s in th e o r e t ic a l u n d e r s t a n d i n g o f in s u r a n c e
m a r k e t f a ilu r e , th e p r e v a i l i n g th e o r e t ic a l t r e a t m e n t s i n v o k e a s s u m p
tio n s s u fficie n tly r e m o v e d f r o m r e a l i t y as to d e fe a t a n y s im p le e ffo rt
to d e r i v e c o n c r e t e p o l i c y a p p l i c a t i o n s f r o m t h e m a t th e p r e s e n t tim e .
T h u s , f o r th e p r e s e n t a t least, U t i l i t a r i a n j u d g e s w o u l d b e w e l l a d
v is e d to p u r s u e a m o r e c o m m o n sense a p p r o a c h , t a k i n g n o t ic e o f the
p ractical d iffic u lty i n v o l v e d in o b t a i n i n g in s u ra n c e again st a w id e
v a r i e ty o f risks, as well ns r e c o g n i s i n g th e m a n y ty p e s o f in t o r m a -
rirm-al i m p p r f p r tinn w h ic h m ake p e r fe c t in s u r a n c e m a r k e ts a the
o r is ts dream . F o r an i l l u m i n a t i n g d is c u ss io n , see G u i d o C a l a b r e s i ,
The Costs of Accidents, c h a p . 4 ( 1 9 7 0 ) .
6. I n a d d i t i o n , a f a v o r a b l e d e c is io n o n c o m p e n s a t i o n m a y i n d u c e
e n t r y in t o th e c o m p e n s a t e d a c t i v i t y th a t c o u l d n o t b e ju s t ifie d o n
U t i l i t a r i a n g r o u n d s i f s e c o n d - o r d e r effects w e r e t a k e n in t o a c c o u n t .
F o r e x a m p l e , a d e c is io n to c o m p e n s a t e flo o d v ic t im s f o r t h e ir losses
m a y e n c o u r a g e f u r t h e r s e t t le m e n t o n th e flo o d p l a i n , i n d u c i n g th e
g o v e r n m e n t to r e s p o n d to the e n h a n c e d flo o d costs t h r o u g h a d a m -
c o n s t r u c t io n p ro g ra m — w hereas th e u tility -m a x im iz in g s o lu t io n a ll
a l o n g w a s to re s tric t s e t t le m e n t in th e flo o d p l a i n .
Ju st as a n appeal to s e c o n d -o r d e r effects m ay s o m e tim e s w o r k
again st co m p e n sa tio n , it m ay s o m e tim e s w ork p o w erfu lly in th e
o p p o s i t e d ir e c t i o n . F o r e x a m p l e , w h e r e it is o n l y th e d iffic u lty o f
c o n s t r u c t i n g a p r i v a t e i n s u r a n c e m a r k e t t h a t is p r e v e n t i n g th e d e
velo p m en t of an a ctiv ity th a t w o u ld generate s u b s t a n t ia l felic ific
b en e fits, c o m p e n s a t i o n m a y se e m i n d i c a t e d e v e n in th e p r e s e n c e o f
l a r g e p r o c e s s costs. S i n c e c o u rts, h o w e v e r , w i l l t y p i c a l l y fin d it q u i t e
d ifficu lt to assess s e c o n d - o r d e r effects, these p o in t s d o n o t w a r r a n t
f u r t h e r d e v e l o p m e n t h e re.
7. G e n e r a l l y s p e a k in g , p r e v a i l i n g j u d i c i a l n o r m s r e q u i r e the j u d g e
e it h e r to g r a n t c o m p e n s a t io n to a ll c l a im a n t s w i t h i n a g i v e n class o r
w i t h h o l d it a lt o g e t h e r . G i v e n this a l l - o r - n o t h in g c h o ic e , the f o r m u l a
presented in th e te x t, w h i c h s p e a k s in te rm s o f to tal r a t h e r th a n
m a r g i n a l c o n d it io n s , w il l suffice. If, h o w e v e r , the j u d g e m o v e s to a
h i g h e r le v e l o f s o p h is tic a tio n to c o n s id e r the le v e l o f g e n e r a l i t y at
w h ic h h e s h o u l d c a te g o r iz e the class o f c l a im a n t s d e s e r v i n g o f c o m
p e n s a t io n (see n. 3 s u p r a ), th e n m a r g i n a l c a l c u l a t i o n s w il l b e the
a p p r o p r i a t e o n es. T h u s , in c h o o s in g b e t w e e n a ru le , R x, th a t p r o
tec te d a r e l a t i v e l y sm a ll set o f c la im a n ts , { X } , a n d a r u le R 2 th a t
p r o t e c t e d a la r g e r g r o u p {X U Y }, it c o u l d w e l l t u r n o u t th a t b o t h
R t a n d R * pass the test set o u t in the te x t. I n this case, th e p r o p e r
R w o u l d b e the o n e fo r w h ic h the d iffe r e n c e b e t w e e n U a n d P w a s
g r e a t e r ; in o t h e r w o r d s , m a r g i n a l c a l c u l a t io n s w o u l d h e r e b e n e c e s
sary.
8. A c o m p l e t e t h e o r y o f j u d i c i a l r e s tr a in t w o u l d , o f c o u rse , e x p l a i n
w h y e v e n a “ w e l l - o r d e r e d ” l e g is la t u r e w o u l d t e n d to s lig h t g e n e r a l
u n ce rta in ty in its effo rt to m a x i m ize u t ilit y . T h i s d o es n o t seem
e s p e c i a l l y d iffic u lt in lig h t r>f w e l l - k n o w n p r o b l e m s e n c o u n te re d
b y la r g e g r o u p s w h o s e in te rests a re b o th d iffu se a n d t r a n s it o r y w h e n
i hey seek to o r g a n iz e fo r p o l it ic a l a c tio n . See g e n erally, M ancur
The Logic of Collective Action ( 1 9 6 5 ) ; J a m e s Q . W i l s o n ,
O ls o n , J r . ,
Political Organizations (1973). A l t h o u g h I w il l n o t h e r e ta k e the
tim e to assess a n d a p p r a i s e the p o ss ib le s o p h is t ic a t e d th e o rie s o f th e
“ w e l l - o r d e r e d ’ ' p o lit ic a l process, I d o n o t w is h to m i n i m iz e th e i m
p o r t a n c e o f this e n t e r p r is e . I n d e e d , f u r t h e r r e fle c tio n o n this m a t t e r
— to w h i c h I h a v e b e e n led b y a p a r t i c u l a r l y f r u i t f u l c o r r e s p o n d e n c e
w it h P r o fe s s o r Frank M i c h e l m a n — c o n v in c e s me th a t an e la b o ra
tio n o f a l t e r n a t i v e th e o r ie s o f the legislative p ro c es s is a r e s e a r c h
t o p ic o f th e h ig h e s t p r i o r i t y fo r a ll those w h o w is h to a t t a in a so
p h is t ic a te d u n d e r s t a n d i n g o f judicial r e v i e w in b o t h its d e f e r e n t ia l
a n d a c tiv ist m o d es .
9. N o n e t h e l e s s , a p l a u s ib l e constitutional c l a i m fo r c o m p e n s a t i o n
b a s e d o n the A p p e a l to G e n e r a l U n c e r t a i n t y c a n b e m a d e o n l y if it
is the state, r a t h e r th a n so m e p r i v a t e d e c is io n m a k e r , w h o s e a c t io n
h a s in c r e a s e d the le v e l o f risk o b t a i n i n g in th e e n v i r o n m e n t . Of
c o u rse , c o m p e n s a t i o n m a y s o m e tim e s b e ju s tifie d to offset risk s g e n
e r a t e d b y p r i v a t e d e c i s io n m a k e r s th a t a re e x p e n s i v e to in s u r e a g a in s t.
U n d e r p r e v a i l i n g l e g a l th e o ries , h o w e v e r , the C o n s t i t u t i o n is u n d e r
sto o d to p ro vid e relief again st a c t io n s w ith w h ich th e state is
20 8 NOTES TO PAGES 4 7 - 4 9
s i g n if ic a n t l y i n v o l v e d . So f a r as th e d e le t e r io u s a c t io n s o f p r i v a t e
i n d i v i d u a l s a r e c o n c e r n e d , c o n v e n t i o n a l l e g a l t h e o r y a ssign s r e m e d i a l
resp o n sib ility la rg ely to th e d is c r e t io n o f le g is la tu r e s , r a t h e r th a n
th e c o n s t i t u t i o n a l j u d g m e n t o f c o u rts. F o r a b r i e f d is c u s s io n o f th e
d is t in c t io n b e t w e e n state a n d p r i v a t e a c t io n , see p p . 14 5-50 in f r a .
10 . O n c e a g a i n th e f o r m u l a is o v e r s im p l if ie d in th e t e x t w h e n it
s u g g es ts .that th e j u d g e s h o u l d b e c o n c e r n e d o n l y w i t h .total costs a n d
total b e n e fits; f o r th e r o le o f m a r g i n a l c o n d i t i o n s see n. 7 s u p r a .
1 1 . F o r th e d e fi n it io n o f d e fe r e n c e , see p. 3 7 s u p r a .
12. See A le x a n d e r B ick el, The Least Dangerous Branch 111-9 9
(1962).
13 . R e ca ll th a t in r u l i n g o n any p a r t i c u l a r case th e U t i l i t a r i a n
ju d g e understands h im se lf to be co n stru ctin g a ru le w h ich w ill
d is p o s e o f a s t r e a m o f cases a r is in g in th e f u t u r e . S i n c e th e p ro c ess
costs a r i s i n g in th e case at b a r h a v e a l r e a d y b e e n e x p e n d e d , t h e y w il l
n o t b e c o u n t e d . I n s t e a d th e f o r m u l a r e q u ir e s th e j u d g e to c o m p a r e
o n l y tho se b e n e fits a n d costs a r i s i n g in th e f u t u r e . H e n c e a m o r e
s o p h is t i c a t e d treatm en t w o u ld req u ire th e j u d g e to p e r f o r m a fa
m i l i a r sort o f d i s c o u n t i n g in o r d e r to r e d u c e f u t u r e to p r e s e n t v a lu e s .
F o r a m o r e i m p o r t a n t w a y in w h i c h th e d is c u s s io n ’s s o p h is t ic a t io n
m a y b e e n h a n c e d , r e c a ll n. 3 s u p r a .
1 4 . F o r th e r o le o f m a r g i n a l , as o p p o s e d to to ta l, c o n d i t i o n s in
th is fe lic ific f o r m u l a , see n. 7 s u p r a .
15. “ P rop erty, U tility , and F a ir n e s s : C o m m en ts on th e E th ic a l
F o u n d a t i o n s o f ‘J u s t C o m p e n s a t i o n ’ L a w , ” 80 Haru. L. Rev. 116 5
( > 967)-
1 6 . I n d e e d , t h e id e a th a t c o m p e t i n g th e o rie s o f j u d i c i a l r o le i m
p o r t a n t l y c o n t r o l d o c t r i n e is a b s e n t f r o m th e b u l k o f M i c h e l m a n 's
d is c u s s io n , t h o u g h a d e f e r e n t i a l t o n e is s tr u c k in a c o n c l u d i n g p l e a
f o r in c r e a s e d le g i s l a t iv e c r e a t i v i t y o n c o m p e n s a t i o n issues; see id . at
1245- 57*
1 7 . I n s t e a d , these c o n s id e r a t io n s , t o g e t h e r w i t h th e “ s e c o n d - o r d e r ”
c o n s e q u e n c e s d is c u ss e d in n. 6 s u p r a , a r e a g g r e g a t e d u n d e r a s in g le
concept term ed “ d e m o ralizatio n ” costs, see id . at 1215 -16 . For
an oth er e ffo rt to re fin e the u m b re lla concept of “ d e m o ralizatio n
c o st” see O l i v e r E. W illia m so n , “ A d m in istra tiv e D e c i s io n M a k in g
a n d P ric in g : E x te rn a lity an d C o m p e n satio n A n a lysis A p p l i e d ,” in
J . M a r g o l i s , ed., The Analysis of Public Output 1 1 5 (1970).
18. M ich e lm a n is n o t alto geth er u n m in d fu l of this factor and
c o n t r i b u t e s a n u m b e r o f v a l u a b l e in s ig h ts (8 0 Harv. L. Rev. 116 5,
1 2 3 5 ) . T h e s e in s ig h ts a re n o t d e v e l o p e d ,* h o w e v e r , a n d M i c h e l m a n ’ s
i n t r o d u c t o r y s ta t e m e n t th a t a j u d g m e n t o f the s t a t u t e ’ s u n d e r l y i n g
U tilita ria n m e r it s “ is n o t e n t i r e l y i r r e l e v a n t to the c o m p e n s a b i l i t y
issu e ” (id. at 1 2 3 5 ) su ggests to the u n w a r y r e a d e r th a t th e issue is o f
s u b s id ia r y i m p o r t a n c e .
1 9 . M y d e b t to M i c h e l m a n e x t e n d s fa r b e y o n d his i n n o v a t i v e a t
t e m p t to sk e tch th e o u t l i n e s o f a U t i l i t a r i a n a p p r o a c h to c o m p e n s a
tio n la w . O th er e le m e n ts of his essay w ere e q u ally im p o rtan t,
o b l i g i n g m e to reflect fa r m o r e d e e p l y o n the s u b j e c t th a n I c o u l d
h a v e d o n e u n a i d e d . W h i l e c e r ta in s a lie n t p o in t s o f a g r e e m e n t a n d
d is a g r e e m e n t w ith M ich elm an w il l be n oted as they arise, these
s c h o la r ly to k e n s d o n o t m e a s u r e the fu ll c o m p e n s a t io n th a t w o u l d
b e d u e in a w e l l - o r d e r e d a c a d e m y .
20. Q u i t e o b v io u s l y , m y effo rt h e re h a s n o t b e e n to o ffe r a d is tille d
and condensed v e r s io n of M ic h e lm a n ’s co m p lex argum ent but to
in d i c a t e the w a y c e r t a in o f his b a s ic in s ig h ts fit in t o the p r e s e n t
t h e o r e tic a l s t r u c t u r e . I a m o f fe r in g a se lf-c o n sc io u s r e i n t e r p r e t a t i o n ,
fo r th e p u r p o s e o f r e d u c i n g the in t e l le c t u a l c h a o s p r e s e n t l y e x i s t i n g
in the field, p r o d u c e d in l a r g e m e a s u r e b y the fa c t th a t e a c h w r i t e r
e a g e r l y p r o c e e d s at o n c e to p r o p o u n d his o w n s p e c ia l t h e o r y w i t h o u t
s e e k in g to r e la te his thesis to those a d v a n c e d b y o th e rs. W i t h so
m a n y w r it e r s p r o c e e d i n g as if the le g a l w o r l d w e r e f o r e v e r n e w , it
is n o s u r p r is e th a t m o st l a b o r m i g h t i l y o n l y to r e d i s c o v e r the w h e e l ,
w h i l e f e w a r e at w o r k o n the i n t e r n a l c o m b u s t i o n e n g i n e (n o t to
s p e a k o f s o la r e n e r g y ) .
2 1 . U n i t e d S ta te s v. C a r o l e n e P r o d u c t s C o ., 3 0 4 U . S . 1 4 4 , 1 5 2 , n .4
(>938).
2 2 . “ T a k i n g s a n d the P o lic e P o w e r , ” 7 4 Yale L.J. 3 6 ( 1 9 6 4 ) ( h e r e
a f t e r c ite d as Sax /). For m ore recent S c ie n t ific w o r k exp ressin g
s i m il a r c o n c e r n s , see Law rence Berger, “A P o l i c y A n a l y s i s o f the
T a k i n g P r o b l e m , ” 4 9 N .Y .U .L. Rev. 1 6 5 , 1 9 7 - 9 8 ( 1 9 7 4 ) ; W i l l i a m F .
B a x t e r a n d L illia n R . A ltre e , “ L e g a l A sp e cts o f A ir p o r t N o is e ,” 15
J. of Law & Econ. 1, 2 - 2 8 ( 1 9 7 2 ) .
2 3 . Sax I at 6 1 - 6 7 .
2 4 . I n d e e d , o v e r th e p a s t d e c a d e it h a s b e c o m e i n c r e a s in g l y f a s h
i o n a b l e a m o n g p o l it ic a l sc ie n tists to s t u d y in s t i t u t io n a l a c t o rs as If
th e y m a x i m iz e d th e ir u tility su b ] e c t ~ t o c o n s t r a in ts i m p o s e d b y ex
tern al forces^—p r e c i s e ly th e m o d e l u n d e r l y i n g P r o p o s i t i o n B x, as it
is sta te d in th e t e x t. For a s e n sitiv e d is c u ss io n of th e in c r e a s in g
p r o m i n e n c e o f this m o d e o f p o l it ic a l scie n ce, see D a v i d R . M a y h e w ,
Congress: The Electoral Connection 1 3 - 7 7 ( 1 974 )- For an applica

tion to administrative behavior, see William A. Niskanen, Bureau
cracy and Representative Government ( 1 9 7 1 ) .
25. T h e re m ay, of c o u rse , be o th e r reasons fo r d is t r u s t in g the
u t i l i t y - m a x i m i z i n g c h a r a c t e r o f th e d e c is io n s h a n d e d d o w n b y lo c a l
z o n i n g b o a rd s . A l l I a m s a y i n g h e r e is th a t th e t y p i c a l z o n i n g b o a r d
la c k s b o th th e b u re a u cra tic and f in a n c ia l pow er th a t p e r m it s a
p la u sib le a p p lic a tio n o f P ro p o sitio n Br F o r m o r e o n z o n i n g b o a rd s ,
see n. 3 1 in f r a .
26 . Sax I at 6 4-6 5. See also Josep h L. Sax, “ T ak in g s, P riv a te
P ro p e rty an d P u b lic R ig h ts,” 81 Yale L. J. 149, 1 6 9 - 7 1 ( 1 9 7 1 ) (h ere
a f t e r c it e d as Sax II).
2 7 . S e e n . 20, s u p r a .
28. Sax II, n. 26 , s u p r a .
2 9 . S e e O ls o n ,The Logic of Collective Action 2 7 - 3 2 , n. 8, s u p r a .
W i l s o n , Political Organizations, n. 8, s u p r a .
3 0 . S e e Sax II a t 16 0 .
3 1 . One line of development is so promising that it requires at
least a footnote invitation to further work. In treating the activist
judge, the text has considered only the easiest and hardest cases
along a continuum. On the one hand, it is relatively easy for a judge
to refuse deference to “self-aggrandizing” bureaucracies of the sort
discussed at pp. 5 0 - 5 2 ; on the other hand, it is relatively difficult
to deny, except in special cases, deference to the central legislative
processes of the state or nation, enshrined as these are by demo
cratic ideology. There are, however, intermediate cases of obvious
importance to the compensation clause. Consider, for example, the
land use regulations imposed by thousands of zoning boards across
the country. While these decisions generally have the warrant of
democratic ideology behind them, local government does not have
the same high status held by the states and the federal government
in our constitutional scheme. There are, moreover, reasons to be
lieve that local governments’ use of the zoning power may be
systematically biased in a non-felicific fashion. See e.g., Susan Rose-
Ackerman, “The Political Economy of a Racist Housing Market,”
4 /. Urban Econ. (forthcoming, 1977), and materials cited in
Bruce A. Ackerman, ed., Economic Foundations of Property Law
3 2 8 (1975). Consequently, it may be perfectly plausible for an
activist judge to subject local zoning regulations to special scrutiny,
requiring compensation whenever a careful appraisal of the regula-
tio n 's o v e r a l l u t i li t y seem ed d o u b tfu l. W h ile this step w o u ld , of

co urse, e n t a il a v e r y s u b s ta n tia l in c u r s io n in t o lo c a l p o l it ic a l p r o
cesses, it is in fa c t less in t r u s iv e t h a n the flat i n v a l i d a t i o n o f “ e x
c l u s i o n a r y ” z o n i n g o r d i n a n c e s o n s im ila r g r o u n d s th a t h a s b e c o m e
i n c r e a s in g l y c o m m o n o v e r the p ast five ye a rs, n o t to m e n t i o n the
m a s siv e ju d icial in t e r v e n t i o n in lo ca l e d u ca tio n a l p o licym a k in g
d u r i n g the g e n e r a t i o n sin ce Brown v. Board of Education. A fu ll
a p p r a is a l o f this f o r m o f j u d i c i a l a c tiv is m , h o w e v e r , w o u l d r e q u ir e
too e la b o r a t e a n a n a ly s is to u n d e r t a k e h e r e ; o n e w o u l d b e o b li g e d
to e x a m i n e a n u m b e r o f m o d e ls o f lo c a l g o v e r n m e n t d e c i s i o n m a k i n g
to d e t e r m i n e the o c c a s io n s u p o n w h i c h a g o o d U t i l i t a r i a n w o u l d b e
e s p e c i a l l y s u s p ic io u s o r i T s p r o p e r T u n c t i o n i n g . (F o r~ a n ~ a rtic le 'w T iT c h
suggests th e g e n e r a l io r m o f an a lys is, t h o u g h I d is a g r e e w i t h its c o n
c lu sio n s, see N o t e , “ E q u a liza tio n o f M u n i c i p a l S e r v ic e s : The Eco
Serrano a n d Shaw,” 8 2 Yale L.J.
n o m ic s o f 8 9 ( 1 9 7 2 ) , r e p r i n t e d in
Economic Foundations of Property Law 2 4 7 , su p ra.)
I n a d d it i o n , it w o u l d be n e c e ssa ry to c o n s id e r in d e ta il the c o n s t it u
t io n a l sta tu s o f l o c a l g o v e r n m e n t s , d e v e l o p i n g a n d a p p r a i s i n g in this
c o n t e x t m a n y o f the th e m e s d e v e l o p e d b y C h a r l e s B l a c k in his im p o r -
ta n t b o o k , Structure and Relationship in Constitutional Law ( i q 6 q).
3 2 . It is l o g ic a l l y c o n c e iv a b l e , o f c o u rse , th a t a n a g n o s tic j u d g e
m ay n e v e r th e le s s ta k e an e xtre m ely a c tiv is t p o s itio n on ju d icia l
com petence and assert th a t the d e li b e r a t e a c tio n s of th e other
b r a n c h e s o f g o v e r n m e n t a re less lik e ly to m a x im iz e u t i l i t y t h a n d e
c isio n s b a s e d o n a j u d i c i a l flip o f the c o in . B u t this p o s it io n is ju s t
p l a i n silly — r e m i n d i n g us th a t m a n y o f o u r a n a l y t i c b o x e s w i l l — a n d
s h o u ld — r e m a in e m p t y in the an a lys is.
3 3 . A s the e n v i r o n m e n t a l m o v e m e n t r e a c h e s m a t u r i t y , h o w e v e r , it
is b e c o m i n g a p p a r e n t th a t e n v i r o n m e n t a l issues m a y s o m e tim e s be
i n e x t r i c a b l y i n t e r w o v e n w i t h f u n d a m e n t a l q u e s t io n s o f d is t r i b u t iv e
ju s tic e . T o ta k e b u t o n e o b v i o u s e x a m p l e , e n v i r o n m e n t a l v a l u e s m a y
be i n v o k e d to j u s t i f y z o n i n g o r d in a n c e s th a t h a v e the o b v i o u s effect
o f e x c l u d i n g th e p o o r f r o m d e s ir a b le c o m m u n it ie s . A s trad e-o ffs o f
this k in d are m ore g e n e ra lly p e rce iv ed and d iscussed , it m a y be
c o m e in c r e a s in g l y d ifficu lt fo r a g n o s t ic j u d g e s to d e t e r m in e w h e t h e r
the p r i n c i p a l o b j e c t i v e o f a le g is la t iv e r e s h u fflin g o f p r o p e r t y b u n
d le s is to e l i m i n a t e th e p e c u l i a r e n v i r o n m e n t a l d is u tilitie s a ss o c ia te d
w i t h o n e o r a n o t h e r a c t i v i t y o r in s te a d to r e d i s t r ib u t e slices in th e
o v e r a l l u t i l i t y p ie b e t w e e n c o n t e n d i n g g r o u p s .
3 4 . T h i s is n o t to say, h o w e v e r , th a t a ll t a x l e g is la t io n s h o u ld b e
u n d e r s t o o d to se rve p r i m a r i l y r e d i s t r i b u t i v e f u n c t io n s . I n s t e a d , the
p o ten tial effic ien c y of ta x in g p o llu ters and other “ e x te rn a lity-
producers” has becom e a part of th e d o m in a n t S c ie n t ific P o licy
m a k i n g c r e d o ; see, e.g. W i l l i a m F . B a x t e r , People or Penguins: The
Case for Optim al Pollu tio n ( 1 9 7 4 ) . H e n c e it is p e r f e c t l y p o s s ib le fo r
a n a g n o s t ic U t i l i t a r i a n c o u r t to r e c o g n iz e th a t so m e t a x l e g i s l a t io n is
m o t i v a t e d b y efficien cy, r a t h e r th a n d i s t r i b u t i o n a l c o n c e r n s , a n d to
proceed to an alyze th e law in a c o n s e r v a t iv e f a s h io n . Sp eak in g
b r o a d l y , th is a p p r o a c h w a s in fa c t t a k e n b y th e P e n n s y l v a n i a S u
p r e m e C o u r t in a r e c e n t case i n v o l v i n g th e c it y o f P i t t s b u r g h ’ s effo rt
to assess a h e a v y t a x u p o n p riv a te p a r k i n g lo ts in th e d o w n t o w n
area. Sin ce th is tax co u ld m o st read ily be ju s tifie d on efficien cy
g r o u n d s , r e q u i r i n g a u t o m o b i l e o w n e r s to “ i n t e r n a l i z e ” s o m e o f t h e ir
“ e x t e r n a l i t i e s ,” t h e r e w a s n o n e e d fo r a n a g n o s t ic c o u r t to s u s p e n d
a ll f u r t h e r t a k in g s a n a ly s is s i m p l y b e c a u s e th e l e g i s l a t io n to o k the
form o f a tax m e a s u re . T h u s th e P e n n sylv an ia court fe lt fr e e to
s c r u tin iz e th e t a x m e a s u r e fu r t h e r , n o t i n g th a t o n e o f its p r i n c i p a l
b e n e fic ia r ie s w o u l d b e th e c i t y ’s o w n p a r k i n g a u t h o r i t y w h i c h o p e r
ated som e 6 ,0 0 0 of th e a v a ila b le p ark in g spaces. In vo k in g S a x ’s
a c t iv is t d is t in c t io n betw een e n tre p ren e u ria l a n d m e d ia tio n a l fu n c
tio n s, th e c o u r t h e l d th e t a x to b e a n u n c o n s t i t u t i o n a l t a k in g . T h e
P e n n sy lv a n ia c o u r t 's j u d g m e n t w a s a p p e a l e d to th e U . S . Suprem e
C o u r t , w h i c h r e v e r s e d in a c l o u d y o p i n i o n th a t r e lie d h e a v i l y o n th e
t r a d i t i o n a l i m m u n i t y o f t a x le g is la t io n . S e e A l c o P a r k i n g C o r p o r a
tio n v. P i t t s b u r g h , 4 5 3 P a . 2 4 5 , 3 0 7 A . 2 d 8 5 1 ( 1 9 7 3 ) , r e v 'd . 4 1 7 U . S .
3 6 9 ( 1 9 7 4 ) . W h i l e th e C o u r t ’ s j u d g m e n t is, o f co u rse , s ig n ific a n t, I d o
not th in k it s h o u l d be c o n s id e r e d as a s o b e r a ssessm en t o f S a x ’s
th e o r y , w h i c h p r o v i d e s th e b a sis fo r P r o p o s i t i o n B x advanced pre
v io u s l y . N o t o n l y d o e s th e P e n n s y l v a n i a d e c is io n r e p r e s e n t a r a t h e r
p r o b l e m a t i c a p p l i c a t i o n o f th e th e o r y , b u t th e t r a d i t i o n o f e x t r e m e
d e f e r e n c e o n t a x a t i o n q u e s t io n s u n d o u b t e d l y in c r e a s e d the C o u r t ’s
u n w i l l i n g n e s s to ta k e s e r io u s ly a n o v e l d o c t r i n a l s u g g e s tio n in a field
w here it h a s a c t e d w i t h e x c e e d in g cau tion fo r a h a lf - c e n t u r y . S e e
c h a p . 6 in f r a . S a x ’s th e o r y , in sh ort, w i l l g e t a f a i r h e a r i n g in the
S u p r e m e C o u r t o n l y a f t e r a m u c h f u l l e r a i r i n g in th e l o w e r c o u rts.
Tax cases lik e Parking Corporation w i l l se em t r o u b le s o m e , a t least
in W a s h i n g t o n , D . C . , o n l y a t a l a t e r s ta g e in th e a d v a n c e o f S c i e n
tific P o l i c y m a k i n g , w h e n th e less o b v i o u s i m p l i c a t i o n s o f S a x ’ s a p
p r o a c h a re s u b j e c t e d to r e fin e d e l a b o r a t i o n .
3 5 . T h e t h e o r y o f s t a t u t o r y i n t e r p r e t a t i o n , as w e l l as th e r o le th e
NOTES TO PAGE 59 213
t h e o r y p la y s in c o n s t it u t i o n a l a d j u d i c a t i o n , h a s b e e n th e s u b je c t o f
a n u m b e r o f in s ig h t f u l essays w h i c h c r y o u t f o r sy n th e sis a n d f u r t h e r
e la b o r a t io n . S e e A n t h o n y G . A m s t e r d a m , “ T h e V o i d - f o r - V a g u e n e s s
D o c t r i n e in th e S u p r e m e C o u r t , ” 1 0 9 U. Pa. L. Rev. 67 (i9 6 0 ); J o h n
H art Ely, “ L e g isla tive a n d A d m in istra tiv e M o tiv a tio n in C o n s t i t u
t io n a l L a w ,” 79 Yale L.J. 120 5 (1970); Paul B re st, “ P alm e r v.
T h o m p s o n : A n A p p r o a c h to the P r o b l e m o f U n c o n s t i t u t i o n a l L e g i s
l a t iv e M o tiv e ,” Supreme Court Rev. 9 5 ; D u n c a n K e n n e d y ,
797/
“ L e g a l F o r m a l i t y , ” 2 J. Leg. Studies 3 5 1 ( 1 9 7 3 ) . S e e also, P a u l B re st,
Processes of Constitutional Decisionmaking: Cases and Materials
9-46,102-72 (1975).
36. W h ile I b e l ie v e th a t no current theory of ju s t ic e — b e it
U tilita ria n , K a n t i a n , o r w h a t - h a v e - y o u — suggests th e d e s ir a b il it y o f
i m p o s i n g su ch a q u a n t i t a t i v e p a t t e r n o n so cial o u tc o m e s , o th e rs m a y
d is a g r e e . R o b e r t N o z ic k , fo r e x a m p l e , d e v o t e s a g r e a t d e a l o f e n e r g y
to r e f u t i n g th e o rists w h o seek to im p o s e su c h d e t e r m i n a t e p a t t e r n s
upon th e p o p u la tio n , his c o n c e n t r a t i o n on the s u b je c t s u g g e s t in g
th a t he is d o i n g s o m e t h in g m ore th a n t i l t in g at w in d m i l l s . Se e
R obert N o z ic k , Anarchy, State, and Utopia, 150 -74 (1974). I am ,
how ever, unpersuaded th a t the th eo rists N o z i c k a tta c k s d o in fa c t
e sp o u s e the s i m p le p o s itio n h e a t t r ib u t e s to th e m .
37. I am h e r e m a k i n g a d is t in c t io n b e t w e e n a le g a l r u l e a n d a
p rin cip le in the w a y su g g e s te d by R o n ald D w o rk in , “ T h e M odel
o f R u le s,” 3 5 U. Chi. L. Rev. 1 4 , 2 2 - 2 9 ( 1 9 6 7 ) ; fo r a c r it ic is m o f this
a p p r o a c h , see J o s e p h R a z , “ L e g a l P r i n c i p l e s a n d th e L i m i t s o f L a w , ”
81 Yale L.J. 823, 8 3 4 -3 9 (1972).
3 8 . T h e s i m p l e a r g u m e n t is m a d e in A . C . P i g o u , The Economics
of Welfare, 4 t h ed., I, 8, § § 1 - 4 ( * 9 4 8 ) , w h i l e a m o r e s o p h is tic a te d , if
m o r e lim it e d , fo r m o f th e a r g u m e n t c a n b e f o u n d in A b b a P . L e r n e r ,
The Economics of Control: Principles of Welfare Economics, chap. 3
( 1 9 4 4 ) . F o r a c r itic a l a p p r a i s a l o f the effo rt to m a k e in t e r p e r s o n a l
c o m p a r i s o n s o f u tility , see L i o n e l R o b b i n s , An Essay on the Nature
and Significance of Economic Science, 2 d ed., c h a p . 6 ( 1 9 5 2 ) ;
W a l t e r J . B l u m a n d H a r r y ' K a l v e n J r . , The Uneasy Case for Progres
sive Taxation 4 9 —6 3 ( 1 9 5 3 ) - f t s h o u l d b e n o t e d th a t w h i l e e c o n o m is ts
a r e a p t to d e n y th e p o s s ib il it y o f m a k i n g m e a n i n g f u l in t e r p e r s o n a l
c o m p a r is o n s o f u t ilit y , p h il o s o p h e r s a re m o r e r e c e p t i v e to th e p l a u s i
b i l it y o f the e n t e r p r is e . S e e I. M . D . L i t t l e , A Critique of Welfare
Economics, 2 d ed., c h a p . 4 ( 1 9 5 7 ) ; J o h n R a w l s , A Theory of Justice
3 2 1 - 2 4 (1971).
39. See, e.g., G u id o C alab resi, The Costs of Accidents (1970);

G u id o C alab resi a n d J o n T. H ir s c h o f f , “ T o w a r d a T e s t f o r S t r ic t
L i a b i l i t y in T o r t s , ” 8 1 Yale L.J. 10 5 5 (19 7 2 ); P eter A . D ia m o n d and
J a m e s A . M ir r le e s , “ O n th e A s s i g n m e n t o f L i a b i l i t y : T h e U n i f o r m
C a se ,” 6 Bell J. Econ. 4 8 7 ( 1 9 7 5 ) ; P eter A . D ia m o n d , “ A c c id e n t L a w
a n d R eso u rce A llo c a tio n ,” 5 Bell J. Econ. 366 (19 74 ).
Economic Foundations of
4 0 . S e e e.g., B r u c e A . A c k e r m a n , ed.,
Property Law ( 1 9 7 5 ) ; H e n r y G . M a n n e , ed., The Economics of
Legal Relationships ( 1 9 7 5 ) ; R i c h a r d A . P o s n e r , Economic Analysis
of Law 1 0 - 1 0 2 ( 1 9 7 3 )*
4 1 . Se e , e.g., P h i l l i p A r e e d a and D o n ald F. T u rn e r, “ P red atory
P r i c i n g a n d R e l a t e d P r a c t ic e s U n d e r S e c t io n 2 o f th e S h e r m a n A c t , ”
88 Harv. L. Rev. 6 9 7 ( 1 9 7 5 ) ; F . M . Sch erer, “ P re d a to ry P ric in g an d
the Sherm an A ct: A C o m m e n t,” 89 Harv. L. Rev. 869 (1976);
P h illip A reeda and D o n ald F. T u rn er, “ Scherer on P red atory
P r i c i n g : A R e p l y , ” id . a t 8 9 1 ; F . M . Sch erer, “ Som e L a s t W o r d s on
P r e d a t o r y P r i c i n g , id. a t 9 0 1 ; R obert H . Bork and W a rd S. B o w
m a n , J r . , “ T h e C r is i s in A n t i t r u s t , ” 6 5 Colum. L. Rev. 36 3 (1965);
H a r la n M . B la k e a n d W illia m K . Jo n e s, “ In D efen se o f A n titru s t,”
id. a t 3 7 7 ; R o b e r t H . B o r k a n d W a r d S. B o w m a n , J r . , “ C o n t r a s t s in
A n titru st T h e o r y ,” id . a t 4 0 1 ; H arlan M. B lak e and W illia m K.
J o n e s , “ T o w a r d a T h r e e - D i m e n s i o n a l A n t i t r u s t P o l i c y , ” id. a t 4 2 2 ;
C a rl K aysen an d D o n a ld F. T u rn e r , Antitrust Policy: An Economic
and Legal Analysis (1959); R ic h a rd S. M a rk o vits, “ O lig o p o listic
P r i c i n g S u its, T h e S h e r m a n A c t , a n d E c o n o m i c W e l f a r e ” ( P a r t I) 2 6
Stan. L. Rev. 4 9 3 ( 1 9 7 4 ) , ( P a r t I I ) id . at 7 1 7 , ( P a r t I I I ) 2 7 Stan. L.
Rev. 3 0 7 ( 1 9 7 5 ) , ( P a r t I V ) 2 8 Stan. L. Rev. 4 5 ( 1 9 7 5 ) ; R i c h a r d A .
P o s n e r , “ N a t u r a l M o n o p o l y a n d I t s R e g u l a t i o n , ” 2 1 Stan. L. Rev.
5 4 8 ( 1 9 ® 9 )-
4 2 . See, e.g., W i l l i a m D . A n d r e w s , “ A C o n s u m p t i o n - T y p e o r C a s h
F lo w Personal In co m e T a x , ” 87 Harv. L. Rev. 1 1 1 3 (1974); A lvin C.
W a r r e n , J r ., “ F airn ess a n d a C o n s u m p t io n -T y p e o r C a sh F lo w P e r
sonal In com e T a x ,” 88 Harv. L. Rev. 931 (1975); W illia m D.
A n d r e w s , “ F a ir n e s s a n d th e P e r s o n a l I n c o m e T a x : A R e p l y to P r o
fessor W a r r e n , ” id. a t 9 4 7 ; S t a n l e y S. S u r r e y , Pathways to Tax Re
form (1973); A lv in C. W arren, Jr., “The C o rp orate In terest De
d u ctio n : A P o lic y E v a lu a tio n ,” 8 3 Yale L.J. 1 5 8 5 ( 1 9 7 4 ) .
4 3 . See, e.g., W a r d S. B o w m a n , J r . , Patent and Antitrust Law
( 1 9 7 3 )» V i c t o r B r u d n e y a n d M a r v i n A . C h i r e l s t e in , Cases and Ma
terials on Corporate Finance ( 1 9 7 2 ) ; V i c t o r B r u d n e y a n d M a r v i n A .
NOTES TO PAGES 6 5-6 6 215
C h i r e l s t e in , “ F a i r S h a r e s in C o r p o r a t e M e r g e r s a n d T a k e o v e r s , ” 8 8
Harv. L. Rev. 2 9 7 (1974); O liv e r E. W illia m so n , Markets and
Hierarchies (1975).
44. S h e p h e r d ’s L a w R e v ie w C ita tio n s revea l m o re than 100 occa
sion s u p o n w h i c h the S a x a n d M i c h e l m a n a r tic le s h a v e b e e n c ite d
b y o t h e r c o m m e n t a to r s . A m o n g th e m o st s ig n ific a n t r e c e n t essays th a t
a t t e m p t to f u r t h e r the a n a ly s is in th e sc ie n tific sp ir it a re W i l l i a m F .
B a x te r an d L illia n R . A ltree, “ L e g a l A sp ects o f A ir p o r t N o is e ,” 15
/. Law ir Econ. 1 ( 1 9 7 2 ) ; L a w r e n c e B e r g e r , “ A P o l i c y A n a l y s i s o f the
T a k i n g P ro b le m ,” 49 N.Y.U.L. Rev. 16 5 (1974); Jo h n J . C o s to n is ,
“ ‘ F a i r ’ C o m p e n s a t i o n a n d th e A c c o m m o d a t i o n P o w e r : A n t i d o t e s fo r
the T a k i n g Im p a s s e in L a n d U s e C o n t r o v e r s i e s ,” 7 5 Colum. L. Rev.
10 21 (1975), and “ D e v e lo p m e n t R ig h ts T ran sfer: An E x p lo ra to ry
E s s a y ,” 8 3 Yale L.J. 7 5 ( 1 9 7 3 ) ; Z y g m u n t J - B . P la t e r , “ T h e T a k i n g s
Issue in a N a t u r a l Settin g: F lo o d lin e s a n d the P o l ic e P o w e r , ” 52
Tex. L. Rev. 201 (1974); O live r E. W illia m so n , “ A d m in istrativ e
D e cisio n m a k in g and P ricin g : E x te rn a lity and C o m p e n sa tio n An
alysis A p p l i e d ” in J . M a r g o l i s , ed., The Analysis of Public Output
1 * 5 ( * 9 7 °)*
45. T h e c o u r ts h a v e d e m o n s t r a t e d v a r i o u s d e g r e e s o f s o p h is t ic a
tio n in th e ir t r e a t m e n t o f M i c h e l m a n a n d S a x . W h i l e m a n y c it a t io n s
se em to b e w i n d o w d r e s s i n g fo r a n a ly s is o f the O r d i n a r y O b s e r v i n g
k in d , se v e r a l c o u r t s h a v e m a d e a g e n u i n e e ffo rt to i n v o k e S c ie n t if ic
d o c t r i n e . Se e , e.g., H F H L td . v. S u p e rio r C o u rt, 1 5 C a l. 3 d 50 8 , 1 2 5
C a l . R p t r . 3 6 5 , 5 4 2 P .2 d 2 3 7 ( 1 9 7 5 ) , cert, d e n ., 4 2 5 U . S . 9 0 4 ( 1 9 7 6 ) ;
L u t h e r a n C h u r c h v. C i t y o f N e w Y o r k , 3 5 N . Y . 2 d 1 2 1 , 3 5 9 N . Y . S .
2d 7, 316 N .E . 2d 305 (1974); A lco P a r k i n g C o r p o r a t i o n v . Pitts-
b u r g h , 4 5 3 P a . 2 4 5 , 3 0 7 A . 2 d 8 5 1 ( 1 9 7 3 ) , r e v 'd ., 4 1 7 U . S . 3 6 9 ( 1 9 7 4 ) ,
a n d d isc u ss ed at n. 3 4 s u p r a .
4 6 . See, fo r e x a m p l e , H a s e g a w a v . M a u i P i n e a p p l e C o m p a n y , 5 2
H a . 3 2 7 , 4 7 5 P . 2 d 6 7 9 ( 1 9 7 0 ) in w h i c h th e S u p r e m e C o u r t o f H a w a i i
in v o k e d S a x ’s e n tre p re n e u ria l/m e d ia tio n a l d is t in c t io n in s t r ik i n g
d o w n a s ta tu e r e q u i r i n g e m p l o y e r s to p a y e m p l o y e e s o n j u r y d u t y
the d iffe r e n c e b e t w e e n th e ir r e g u l a r s a la rie s a n d j u r o r s ’ p a y .
4 7 . S e e c h a p s . 5 a n d 6.
48. F o r a canvass o f the co n v e n tio n a l tests o f ta k in g s l a w , see
P h i l i p N i c h o ls , The Law of Eminent Domain, re v . 3 d ed., v o l. 2,
§ § 6 . 2 - 6 . 3 8 ( 1 9 7 0 ) . T h e tests are d is c u ss e d c r i t i c a l l y in Sax I; M ich e l
m an , “ P ro perty, U tility a n d F a irn ess” ; A r v o V a n A lstyn e , “ T a k i n g
o r D a m a g i n g b y P o l ic e P o w e r : T h e S e a r c h f o r I n v e r s e C o n d e m n a t i o n
2l 6 NOTES TO PAGES 6 6-6 7
C r ite ria ," 4 4 So. Cal. L. Rev. 1 ( 1 9 7 1 ) ; L a w re n ce Berger, " A P o licy

A n a lysis of th e T a k in g P ro b le m ,” N.Y.U. L. Rev. 165, 170 -77
(•974)-
49. See N ich o ls, The Law of Eminent Domain, v o l . 2, § § 6 . 2 - 6 . 2 1 .
T h e p o i n t is il l u s t r a t e d in U n i t e d S ta te s v . D o w , 3 5 7 U . S . 1 7 ( 1 9 5 8 ) ,
w h i c h h e l d th a t d e s p it e th e p r o v i s i o n s o f th e D e c l a r a t i o n o f T a k i n g
A c t , a t a k i n g w a s e ffe c te d a t th e tim e o f p h y s ic a l p o ssessio n , w h i c h
p r e d a t e d th e f ilin g a n d t r a n s f e r o f title u n d e r th e act.
5 0 . S e e e.g., D o o l e y v. T o w n P lan a n d Z o n in g C o m m issio n , 151
C o n n . 304, 19 7 A . 2d 77 0 (19 6 4 ); M o rris C o u n ty L a n d Im p ro vem en t
C o m p a n y v. P a r s ip p a n y - T r o y H ills T o w n s h i p , 4 0 N . J . 5 3 9 , 1 9 3 A . 2 d
2 3 2 ( 1 9 6 3 ) . S e e N ic h o ls , The Law of Eminent Domain, v o l. 1, § 1 . 4 2
[7]. J u d i c i a l c o n c e r n w i t h d i m i n u t i o n o f m a r k e t v a l u e h a s its o r ig in
in M r. Ju stice H o l m e s ’s o f t e n quoted d ic t a on th e l im i t s o f th e
p o l ic e pow er in P e n n sylv a n ia Coal C o m p a n y v. M ahon, 260 U .S.
393, 4 13 , 4 1 5 - 1 6 ( 1 9 2 2 ) , a case w h i c h w il l b e d is c u ss e d a t l e n g t h at
pp. 156 -6 5 in f r a . S e e also C o m m i s s i o n e r o f N a t i o n a l R e s o u r c e s v.
S. V o l p e C o m p a n y , In c ., 3 4 9 M ass. 104, 10 9 -10 , 206 N .E . 2 d 6 66 ,
670 (1965); M i l l e r v. C i t y o f B e a v e r F a lls , 3 6 8 P a . 18 9 , 1 9 7 - 9 8 , 82
A .2 d 34, 38 (19 5 1).
5 1 . Se e , e.g., T u r n p i k e R e a l t y C o m p a n y v. T o w n o f D e d h a m , 3 6 2
M a s s . 2 2 1 , 2 8 4 N . E . 2 d 8 9 1 ( 1 9 7 2 ) , cert. d e n . 4 0 9 U . S . 1 1 0 8 ( 1 9 7 3 ) , in
w h i c h the c o u r t r e f u s e d to h o l d t h a t a n 8 8 % d i m i n u t i o n in m a r k e t
v a l u e w a s “ c o n c l u s iv e e v i d e n c e o f a n u n co n stitu tio n a l d e p riv a tio n
o f p r o p e r t y ” ; C o n s o l i d a t e d R o c k P r o d u c t s C o m p a n y v. C i t y o f L o s
A n gele s, 5 7 C a l. 2d 5 1 5 , 3 7 0 P .2 d 3 4 2 ( 1 9 6 2 ) , a p p e a l d is m is s e d 3 7 1
U . S . 3 6 ( 1 9 6 2 ) , in w h i c h th e c o u r t u p h e l d a z o n i n g r e s tr ic tio n w h i l e
s ta tin g , “ I t m u s t b e c o n c e d e d th a t in r e l a t i o n to its v a l u e f o r the
e x t r a c t i o n o f ro c k , s a n d a n d g r a v e l , th e v a l u e o f th e p r o p e r t y fo r
a n y o f th e [a l t e r n a t i v e ] uses is r e l a t i v e l y sm a ll, if n o t m i n i m a l , a n d
th a t as to a c o n s i d e r a b l e p a r t o f it s e a s o n a l f l o o d i n g m i g h t p r e v e n t
its c o n t i n u o u s use fo r a n y p u r p o s e . ” C f . G o l d b l a t t v. T o w n o f H e m p
ste a d , 3 6 9 U . S . 5 9 0 ( 1 9 6 2 ) . F o r a c o ll e c t io n o f cases, see R o b e r t M .
A nderson, American Law of Zoning, v o l. 1, § 2 . 2 3 ( 1 9 6 8 ) .
5 2 . C o m p a r e T u r n p i k e R e a l t y C o m p a n y v. T o w n o f D e d h a m , 3 6 2
M a ss. 2 2 1 , 2 8 4 N . E . 2d 891 ( 1 9 7 2 ) , cert. d e n . 4 0 9 U . S . 110 8 (1973)
(u p h o ld in g flo o d p lain zon in g r e s tric tio n s ) w ith D o o le y v. T o w n
P lan an d Z o n in g C o m m issio n , 1 5 1 C o n n . 304, 19 7 A . 2d 7 7 0 (196 4)
( s t r ik in g d o w n s i m il a r re s tric tio n s ). S e e N i c h o l s , The Law of Emi
nent Domain, v o l. 1, § 1 . 4 2 [2 ]; Ern st Freun d, The Police Power,
§ 5*1 (19°4)-
53. A p i c t u r e s q u e e x a m p l e o f this k i n d o f o b s c u r it y is p r o v i d e d
by M r. Ju stice Su th e rla n d in V illag e o f E u clid v. A m b l e r R e a l t y
Com pany, 272 U .S . 365, 388 (1926 ), th e l a n d m a r k case u p h o l d i n g
z o n i n g o r d in a n c e s . I n a n a l o g i z i n g su ch r e g u l a t io n s to th e c o m m o n
l a w o f n u is a n c e , the ju s t ic e r e m a r k e d , “ a n u i s a n c e m a y b e m e r e l y a
r ig h t t h i n g in th e w r o n g p la c e , lik e a p i g in a p a r l o r in s te a d o f the
b a r n y a r d . ” W h i l e this m a y m a k e p e r fe c t sense to a n O r d i n a r y O b
server, the d iffic u lty fo r the S c i e n t if ic P o l ic y m a k e r is th a t it is n o t
o b vio u s a p r io r i w heth er the p ig or the p arlo r c o n s t it u t e s th e
n o x i o u s use. S e e R o n a l d C oase, “ T h e P ro b le m o i Social C o s t s ,” 3
J. Law & Exon. 1 ( i 9 6 0 ) ; Sax 1 at 4 8 - 5 0 ; M i c h e l m a n , " P r o p e r t y ,
U tility and F a i r n e s s ,” at 119 6 -120 1; N o te, " A n E c o n o m ic A n a lysis
o f L a n d U s e C o n f l i c t s ,” 2 1 Stan. L. Rev. 2 9 3 (19 6 9 ); G u id o C a lab resi
a n d A . D o u g la s M e la m e d , “ P ro p e rty R u le s, L i a b ilit y R u le s, a n d I n
a lie n a b ility: O n e V ie w o f th e C a t h e d r a l , ” 85 Harv. L. Rev. 1089,
1115-24 (1972); W illia m F. B axter and L illia n R. A ltree, "Legal
A sp ects o f A ir p o r t N o is e ,” 15 /. Law & Econ. 1 (1972); R obert C.
E l l ic k s o n , " A l t e r n a t i v e s to Z o n i n g : C o v e n a n t s , N u i s a n c e R u l e s , a n d
F i n e s as L a n d U s e C o n t r o l s , ” 4 0 U. Chi. L. Rev. 6 8 1 ( 1 9 73 )-
5 4 . A se a rc h o f th e r e p o r t s in d ic a t e s th a t w e t l a n d r e g u l a t i o n s h a v e
b e e n u p h e l d a n d stru c k d o w n in a p p r o x i m a t e l y e q u a l n u m b e r s .
Regulation held invalid: H a m ilto n v. D ia m o n d , 4 2 A .D . 2d 4 6 5 ,
3 4 9 N . Y . S . 2 d 1 4 6 ( 1 9 7 3 ) ; B a r t l e t t v. Z o n i n g C o m m i s s i o n o f T o w n o f
O l d L y m e , 1 6 1 C o n n . 24 , 2 8 2 A . 2 d 9 0 7 ( 1 9 7 1 ) ; T h o m p s o n v. W a t e r
R e s o u r c e s C o m m is s io n , 1 5 9 C o n n . 8 2 , 2 6 7 A . 2 d 4 3 4 ( 1 9 7 0 ) ; S t a t e v.
Jo h n so n , 265 A . 2d 711 (M e. 1970); C o m m issio n er o f N a t u r a l Re
s o u rc e s v. S. V o l p e & C o ., 3 4 9 M a ss . 10 4 , 2 0 6 N . E . 2d 666 (19 6 5);
D o o l e y v. T o w n P lan and Z o n in g C o m m issio n of T o w n o f F air-
field, 151 Conn. 304, 197 A . 2d 770 (196 4); M o rris C o u n ty Land
I m p r o v e m e n t C o . v. P a r s i p p a n y - T r o y H i l l s T o w n s h i p , 4 0 N . J . 5 3 9 ,
19 3 A . 2d 232 ( 1 9 6 3 ) . C f . M a c G i b b o n v. B o a r d o f A p p e a l s o f D u x -
b u r y , 3 5 6 M a ss . 6 3 5 , 2 5 5 N . E . 2 d 3 4 7 ( 1 9 7 0 ) ( v o i d i n g B o a r d ’s p o l i c y
o f p r o t e c t i n g w e t l a n d s b y r e j e c t i n g all a p p l i c a t i o n s fo r d e v e l o p m e n t
p e r m it s as b e y o n d th e s c o p e o f its a u t h o r i t y u n d e r a t o w n b y - l a w a n d
the Z o n i n g E n a b l i n g A c t ) .
Regulation held valid: Zabel v. T a u b , 430 F 2d 199 (5th C ir.
1 9 7 0 ) , cert. d e n . 4 0 1 U . S . 9 1 0 ( 1 9 7 1 ) ; C o a s t a l P e t r o l e u m C o . v . S e c r e
t a r y o f the A r m y , 3 1 5 F . S u p p . 8 4 5 ( 1 9 7 0 ) ; S i b s o n v. S ta te , 1 1 5 N . H .
, 2 4, 3 3 6 A . 2 d 2 3 9 ( 1 9 7 5 ) ; I n re M a i n e C l e a n F u e ls , 3 1 0 A . 2d 736
(M e. 1973); In re S p r i n g V a l l e y D e v e l o p m e n t , 300 A . 2d 736 (M e.
1 9 73 ) ^ T u r n p i k e R e a l t y v. T o w n o f D e d h a m , 3 6 2 M a s s . 2 2 1 , 2 8 4 N . E .
2l8 NOTES TO PAGE 67
2d 891 (1972), cert. den. 409 U .S . 110 8 (1973); J u s t v. M a rin e tte

C o u n t y , 5 6 W i s . 2 d 7, 2 0 1 N .W . 2d 76 1 (19 7 2 ); P otom ac Sa n d an d
G r a v e l C o m p a n y v. G o v e r n o r o f M a r y la n d , 2 2 6 M d . 3 5 8 , 2 9 3 A . 2d
241 (1972); C a n d le stic k Pro p erties, In c. v. S a n F ra n cisco B a y C o n
s e r v a t io n and D e v e lo p m e n t C o m m issio n , 11 C a l. A p p . 3d 557, 89
C al. R ep tr. 897 (1970). C f. G o ld e n v. B o a r d o f Se lectm e n o f F a l
m o u th , 3 5 8 M ass. 5 1 9 , 2 6 5 N . E . 2d 5 7 3 (19 7 0 ) (u p h o ld in g p o w e r o f
lo c a l a u t h o r i t y to d e n y d e v e l o p m e n t p e r m i t in o r d e r to p r o t e c t w e t
lan d e c o lo g y , th u s restrictin g ru le of M acG ibbon, s u p r a ; ta k in g
issue n o t r a is e d ).
5 5 . See, e.g., I n re S p r i n g V a l l e y D e v e l o p m e n t , 3 0 0 A . 2 d 7 3 6 , 7 4 9
(M e. 1973); P o to m ac Sand and G ravel Com pany v. G overnor of
M arylan d , 266 M d. 358, 375, 293 A . 2d 241, 250 (19 72). C f. In re
M a i n e C l e a n F u e ls , 3 1 0 A . 2 d 7 3 6 ( M e . 1 9 7 3 ) in w h i c h p l a i n t i f f w a s
h e l d n o t to h a v e c a r r ie d th e b u r d e n o f p r o v i n g e x c e s s iv e d i m i n u t i o n
o f valu e.
5 6 . I t is tr u e th a t e v e n t r a d it io n a l is t c o u r t s s o m e tim e s a c c e p t the
s u g g e s tio n o f a n e a r l y P o l i c y m a k i n g essay b y R o b e r t K r a t o v i l a n d
Frank J . H arriso n , Jr., “ E m in e n t D o m a in — P o lic y a n d C o n c e p t,”
42 Calif. L. Rev. 596, 609 (1954), w h ic h s u g g es ts that c o u rts
“ b a l a n c e ” th e “ p r i v a t e h a r m ” c a u s e d b y th e r e g u l a t i o n a g a i n s t the
“ p u b lic b en efit” g e nerated by th e change in th e l a w . W h i l e this
“ b a l a n c i n g test” m a y se em o n first a p p r o a c h to r e s e m b l e the A p p e a l
to C i t i z e n D is a ff e c t io n , it in fa c t is g e n e r a l l y u s e d in a way th a t
c o n fu s e s tw o v e r y d if f e r e n t q u e s t io n s — first, w h e t h e r th e l a w is cori-
.s titu tio n a l w i t h o u t r e g a r d to c o m p e n s a t i o n ; and se c o n d , w h e t h e r ,
g i v e n a n a ffir m a tiv e a n s w e r to th e first q u e s t io n , th e t a k in g s c la u s e
r e q u ir e s co m p e n sa tio n . See M ich elm an , “ Property, U tility and
F a irn e s s," 119 3-9 6 . G e n e r a l l y s p e a k in g , “ b a la n cin g ” courts do not
in f a c t d i s t in g u i s h these tw o v e r y d if f e r e n t issues, p e r h a p s b e c a u s e
t h e y d o n o t w is h to a d m i t th a t e v e n w h e n th e y c o n s c io u s ly res tric t
t h e m s e lv e s to the t a k in g s q u e s t io n , t h e y d o n o t a p p l y th e test in a
way th a t w o u l d gain th e a p p r o v a l o f a c l e a r - t h i n k i n g U t i l i t a r i a n
P o l i c y m a k e r . A s w e h a v e s h o w n in th e te x t, th e U t il it a r i a n j u d g e ’s
c o n c e r n w i t h th e r e l a t i o n o f th e costs a n d b e n e fits g e n e r a t e d b y T Ke
s ta tu te is c lo s e ly t ie d to th e c o n c e p t o f C i t i z e n D is a ffe c t io n . T h a t is,
T h e m o r e p l a i n th e s ta tu te 's n e t b e n e fits a re to a p r i n c i p f e d j u d g e ,
th e less w e i g h t h e w i l l g i v e to th e A p p e a l to C i t i z e n D is a ffe c tio n .
T r a d i t i o n a l c o u rts, e v e n w h e n t h e y a r e t h i n k i n g c le a r ly , d o n o t use
th e “ b a l a n c i n g ” test in th is w a y . R a t h e r th a n c o n s i d e r i n g w h e t fie r
NOTES TO PAGES 6 7-6 8 219
to tal b e n e f its a r e p l a i n l y g r e a t e r t h a n to ta l costs, th e c o u r t s in s te a d

co m p a r e (in so m e u n e x p la in e d w a vT T lie exten t to w h ic h the
p r o p e r t y 's valu e has d ep reciated a g a in s t th e to ta l b e n e fit to the
p u b l i c . See, e.g., R o c h e s t e r B u s in e s s I n s t i t u t e v. C i t y o f R o c h e s t e r , '
2 5 A . D . 2 d 9 7 , 1 0 1 , 2 6 7 N . Y . S . 2 d 2 7 4 , 2 7 9 ( 1 9 6 6 ) . I f this f o r m u l a h a s
a n y m e a n i n g at a ll, it seem s to b e a s l ig h t l y m o r e c o m p l i c a t e d v e r
sion o f th e “ d i m i n u t i o n o f v a l u e test” d isc u ss ed in the t e x t r a t h e r
th a n a d e c is iv e p l u n g e in t o P o l i c y m a k i n g .
5 7 . I n d e e d , e v e n e la b o r a t e t e c h n o c r a t ic e ffo rts to u n d e r s t a n d the
e n v i r o n m e n t o f te n se rve o n l y to r e v e a l th e d e g r e e o f o u r i g n o r a n c e
and u n c e r t a in t y . See Bruce A. Ackerm an, et al., The Uncertain
Search for Environmental Quality (19 74). T h is is n o t to say, of
co u rse , th a t our ig n o r a n c e sh ou ld in h i b i t an a g g r e s s iv e e n v iro n
m e n t a l p r o g r a m ; it is o n l y to say th a t d e c i s io n m a k e r s w i l l o f t e n b e
f o r c e d to im p o s e c o n s id e r a b l e d is a ffe c tio n u p o n sm a ll g r o u p s , sin ce
th e y w ill n o t b e in a p o s itio n to d e m o n s t r a t e in a c o n v i n c i n g fa sh io n
th a t th e ir particular fe a rs a re p l a i n l y ju s tifie d in the particular a rea
p l a c e d u n d e r r e g u l a t io n .
58. F o r a recen t S c i e n t if ic P o licym a k in g o p in io n th a t m akes
p r e c is e ly this a r g u m e n t , see H F H L t d . v. S u p e r i o r C o u r t , 15 C al.
3 r d 5 o 8 > 5 2 1 * 5 4 2 p -2 d 2 37 » 247 ( 1 975 )* c e r t - d e n - 4 25 U . S . 9°4 ( * 97 6 )-

5 9 . M o r e o v e r , i f the o r d i n a n c e w e r e d r a m a t i c a l l y u n d e r in c l u s i v e ,
the r e m e d y w o u ld m o r e l ik e ly b e j u d i c i a l i n v a l i d a t i o n u n d e r the
sp o t z o n i n g d o c t r i n e — l a n d l a w ’ s a n a l o g u e to e q u a l p r o t e c t io n d o c
trin e . See D a n i e l R . M a n d e l k e r , “ D e l e g a t i o n o f P o w e r a n d F u n c t i o n
in Z o n i n g A d m i n i s t r a t i o n , ” 1 9 6 3 Wash. U. L. Q. 60 (19 6 3 ).
60. S e e A d i r o n d a c k P a r k A g e n c y A c t , N . Y . E x e c u t i v e L a w , A r t . 2 7 ,
§§ 8 0 1 - 1 9 ( M c K i n n e y 1 9 7 4 ) . T h e m e c h a n is m s a n d i m p a c t o f the act
are d iscu ssed in P h ilip N i c h o ls , The Law of Eminent Domain,
v o l. 1., § 1 . 4 2 [18 ] [4] [6] [ii], a n d B ooth , “ T h e A d iro n d a ck P ark
Agency A ct: A C h a lle n g e in R e g io n a l Land Use P la n n in g ,” 43
Geo. Wash. L. Rev. 6 1 2 ( 1 9 7 5 ) . F o r a n O r d i n a r y O b s e r v e r ’s a n a ly s is
o f its c o n s t it u t i o n a l i m p l ic a t io n s , see N o t e , “ P r e s e r v i n g S c e n i c A r e a s :
T h e A d ir o n d a c k L a n d U se P ro g ra m ,” 84 Yale L.J. 17 0 5 (1975).
6 1 . In a t t e m p t i n g to s k e w his c o m p e n s a t i o n d e c is io n s in a w a y
f a v o r a b l e to th e p o o r , the r e f o r m is t s h o u l d b e a w a r e th a t d e c is io n s
w h i c h at first g l a n c e a p p e a r to h a v e fa v o ra b le d istrib u tio n a l c o n
s e q u e n c e s m a y se em less a t t r a c t iv e o n f u r t h e r a n a lys is. T h u s , m a n y
o f the b e n e fits o f a flo o d c o n t r o l m easu re m a y n o t tr ic k le down
to the p o o r e r E a r t h l i n g s b u t m a y in s te a d b e a p p r o p r i a t e d b y E a r t h
220 NOTES TO PAGES 6 8 -7 1
l i n g l a n d l o r d s in th e f o r m o f h i g h e r ren ts . M o r e o v e r , as a S c ie n tis t,
o u r r e f o r m e r w i l l n o t b e r e l u c t a n t to ta k e a d v a n t a g e o f r e c e n t w o r k
t r y i n g to m a k e th e d i s t r i b u t i o n a l i m p a c t o f p u b l i c p r o g r a m s c le a r e r.
See, e.g., A . M i t c h e l l P o l i n s k y a n d S t e v e n S h a v e l l , “ A m e n i t i e s a n d
P r o p e r t y V a l u e s in a M o d e l o f a n U r b a n A r e a , ” 5 / . Public Econ.
1 1 9 ( 1 9 7 6 ) ; S u s a n R o s e - A c k e r m a n , “ O n th e D i s t r i b u t i o n o f B e n e fit s
B etw een L a n d lo rd s and T e n e n ts ,” 3 / . of Environmental Econ. and
Mgmnt. (fo rth co m in g, 19 7 7 ).
6 2 . F o r a n a t t e m p t to d e a l w i t h s e t t l e m e n t costs as a n e le m e n t in
a g e n e r a l S c i e n t if ic P o l i c y m a k i n g t h e o r y o f t a k in g s la w , see L a w r e n c e
Berger, “A P o l i c y A n a l y s i s o f th e T a k i n g P ro b le m ” , 49 N.Y.U.L.
Rev. 165, 201 (1974).
6 3 . M i c h e l m a n , “ P r o p e r t y , U t i l i t y , a n d F a i r n e s s ,” a t 1 2 2 6 - 2 9 .
64. T h e p r e c is e r e l a t i o n s h i p b e t w e e n S c ie n t ific f o r m s o f a n a ly s is
a n d e x i s t i n g d o c t r i n e w i l l b e t r e a t e d a t l e n g t h in c h a p . 6.
65. I have in m in d p rin cip a lly th e p o s i t io n o f th e e x t r e m e r e
f o r m is t j u d g e , d is c u ss e d s u p r a at p p . 60, 68 w h i c h w o u l d l e a d to a
d r a m a t i c r e d u c t i o n in th e c l a u s e ’ s sco pe.
66. T h u s it is e a sy to c r itic iz e F l e m m i n g v. N e s t o r , 3 6 3 U . S . 6 0 3
( i 9 6 0 ) t r o m th e S c ie n t if ic U t il it a r i a n p e r s p e c t iv e , i n c o r p o r a t i n g m a n y
of tn e c o n s id e r a t io n s advanced by C h a rle s R e ich in “The New
P r o p e rty ," 73 rale L.J. 733 (1964). The d ifficu lties t h a t b es et a n
O rd in a ry O bserver w ho a t t e m p t s to m a k e a s i m il a r m o v e w i l l b e
d is c u ss e d a t p p . 1 5 6 - 6 7 in f r a .
C hapter 4
1. J o h n R aw ls, A Theory of Justice ( 1 9 7 1 ) ; R o b e r t N o z ic k ,

Anarchy, State, and Utopia ( 1 9 7 4 ) ; R o b e r t P a u l W o l f f , In Defense
of Anarchism ( 1 9 7 3 ) ; R o b e r t P a u l W o l f f , The Poverty of Liberalism
( 1 9 6 8 ) ; M i c h a e l W a l z e r , Obligations ( 1 9 7 0 ) ; C h a r l e s F r i e d , Medical
Experimentation: Personal Integrity and Social Policy ( 1 9 7 4 ) ;
C h a r l e s F r i e d , An Anatomy of Values ( 1 9 7 0 ) ; R o n a l d D w o r k i n , “ T h e
O r i g i n a l P o s i t i o n , ” 4 0 U. Chi. L. Rev. 5 0 0 ( 1 9 7 4 ) ; R o n a l d D w o r k i n ,
“ T a k i n g R i g h t s S e r i o u s l y , ” in E . V . R o s t o w , ed ., Is Law Dead? 1 6 8
0970-
2. T h e r e are d ou b tless U tilita ria n s in th e w in g s , p re p a rin g a
cou n teroffen sive. F o r in d i c a t io n s , see P e t e r S i n g e r , “The R ig h t to
B e R ic h or P o o r,” 22 The New York Review of Books 1 9 ( M a r c h 6,
1 9 7 5 ) . R o l f S a r t o r iu s , Individual Conduct and Social Norms (1975)5
J. J. C. Sm art and B e r n a r d W i l l i a m s , Utilitarianism: For and
NOTES TO PAGES 7 1 -7 2 221
Against ( 1 9 7 3 ) . F o r a g o o d r e v ie w , see D a n W . B r o c k , “ R e c e n t W o r k
in U t i l i t a r i a n i s m , ” 1 0 Am. Phil. Q. 2 4 1 ( 1 9 7 3 ) .
3. T h i s is W o l f f ’ s v ie w . W h ile N o zick takes a n a r c h is t p re m ise s
se rio u sly , h e seeks to s h o w h o w th e y p e r m i t the l e g i t i m a t i o n o f a
“ m i n i m a l s ta te ,” d i s c h a r g i n g v e r y m o d e s t fu n c t io n s . S e e w o r k s c ite d
at n. 1 s u p r a .
4. T h e v ie w s advanced by b o th R aw ls and W alzer c e r t a i n ly
p e r m it , if t h e y d o n o t n e c e s s a rily r e q u ir e , a c o m m i t m e n t to state
ow n ersh ip of the m eans of p ro d u ctio n . See R a w ls, A Theory of
Justice, § 4 2 ; W alzer, Obligations, 229 -38.
5 . It s h o u l d b e e m p h a s iz e d th a t I a m s p e a k i n g h e r e o f the t e n o r
o f s e lf-c o n s c io u s ly p h il o s o p h i c a l d is c u ss io n . I n the ta lk o f s o p h is ti
c a t e d l a w y e r s ( a n d e c o n o m is ts ) w h o d o n o t h a v e p h i l o s o p h i c a l p r e t e n
tions, I t h in k o n e w o u l d find th a t U t i l i t a r i a n m o t if s still d o m i n a t e
d is c o u rs e. T h is is p a rticu la rly tr u e am ong th e l a w y e r - e c o n o m is t s
w h o s e v o c a b u l a r y a n d m e t h o d o l o g y a r e in c r e a s i n g l y i m p o r t a n t to d a y .
F o r a f u r t h e r d is c u s s io n , see p p . 1 6 9 - 7 0 , 2 7 2 - 7 4 in fr a .
6. S e e I m m a n u e l K a n t , Groundwork of the Metaphysic of Morals,
2 d ed . 6 6 - 6 7 , tr. H . J . P a t o n ( 1 9 6 4 ) . If, as m a y w e ll b e the case, it is
in a p p ro p ria te to use a g r e a t p h ilo so p h e r’s n am e as a la b e l fo r a
legal p rin c ip le th a t rep resen ts but an is o la te d fragm en t of his
th o u g h t , it s h o u ld not be to o d ifficu lt to t h i n k o f a n o t h e r la b e l,
th o u gh I m u st c o n fe ss th a t every proposal I have thus far c o n
s id e r e d seem s to m e to h a v e e v e n g r e a t e r d i s a d v a n t a g e s t h a n the o n e
I h a ve chosen.
7. A h y p o t h e t i c a l u n i t m e a s u r i n g u t ilit y . T h r o u g h o u t the p r e s e n t
essay w e sh a ll b e a s s u m i n g th a t th e U t i l i t a r i a n th e o rist c a n p r o v i d e
a c o n v i n c i n g a c c o u n t o f th e p r o c e d u r e s b y w h i c h i n d i v i d u a l u t i li t y
can be m easu red and sum m ed to a so c ie ta l to ta l. W h e t h e r U t i l i
t a r ia n s c a n p r o v i d e s u c h a n a c c o u n t is o f c o u r s e a v e r y p r o b l e m a t i c
q u e s t io n . S e e so u rce s c ite d a t n o t e 3 8 , c h a p . 3 . T o p u r s u e th e issue
h e r e w it h the se rio u sn e ss it d e serv es , h o w e v e r , w o u l d t r a n s f o r m this
essay in t o a w o r k in g e n e r a l p o litica l p h ilo so p h y ra th e r than one
w h ich seeks to e s ta b lis h a relatio n sh ip betw een p h ilo so p h y and
c o n s t it u t i o n a l la w .
8. T h e K a n t i a n j u d g e d e p i c t e d in the t e x t is n o t p o s i t iv e l y h o stile
to u t i l i t y - m a x i m i z i n g m o v e s , b u t is s i m p l y c o n c e r n e d to assu re th a t
t h e y d o n o t v io la t e his P r i n c i p l e o f E x p l o i t a t i o n . I t is, o f co u rse,
q u i t e p o s s ib le to c o n c e iv e o f a f a r m o r e se ve re c r it ic o f U t i l i t a r i a n i s m
w h o d e n i e d the p r o p r i e t y o f a n y e ffo rt to m a k e th e w o r l d a h a p p i e r
222 NOTES TO PAGES 7 3 —7 4
p l a c e . B e c a u s e this e x t r e m e v i e w is h e l d b y n o s ig n ific a n t g r o u p o f
c o n t e m p o r a r y l a w y e r s it m a y b e ig n o r e d in th e p r e s e n t d is c u ss io n .
9. It is possible th at the settlem ent costs involved in com pensating
the M arshans are so high th at the entire net gain of 900,000 utiles
will be consum ed in the com pensation effort. W e shall, however,
consider this “hard case” separately at pp. 7 5 -7 6 infra.
10. See pp. 4 7 -4 8 supra.
1 1 . I t is q u i t e s ig n if ic a n t th a t this f u n d a m e n t a l p o i n t in K a n t i a n
j u r i s p r u d e n c e c a n b e r e a d i l y e x p r e s s e d u s in g th e d is t in c t iv e l a n g u a g e
o f w e l f a r e e c o n o m ic s th a t is n o w h a v i n g a n i m p o r t a n t i m p a c t u p o n
S c i e n t if ic le g a l a n a ly s is . W i t h i n th is c o n c e p t u a l f r a m e w o r k , a d is t r i
b u t i o n o f p r o p e r t y rig h ts, X , is s a id to b ePareto-superior to a n o t h e r
d istrib u tio n , Y , w h e n at least one person is better off a n d no person
is worse off under X th a n Y . ( F o r a d is c u s s io n o f P a r e t o - s u p e r i o r i t y
a n d its r e l a t i o n s h i p to th e d if f e r e n t id e a o f P a r e t o - o p t i m a l i t y , see
my Economic Foundations of Properly Law, x i-x ii (1975). G iv e n
this d e f i n it io n o f P a r e t o - s u p e r io r it y , th e K a n t i a n r u l e d e v e l o p e d in
th e t e x t c a n b e t r a n s l a t e d : “ I f it is p o s s ib le to d e v e l o p a c o m p e n s a
tio n p ractice that w ill tran sfo rm th e s i t u a t io n p r e v a ilin g at T i m e
T h r e e in t o o n e th a t is Pareto-superior to th e o n e w h i c h o b t a i n e d at
T im e O n e, th en c o m p e n sa tio n sh ou ld be co n stitu tio n a lly r e q u ire d
b y th e r e s t r a i n e d K a n t i a n ju d g e ." T h e ease w i t h w h i c h th e p o i n t
c a n b e m a d e is, I th in k , s u g g e s tiv e o f a d e e p affin ity b e t w e e n the
s t r u c t u r e o f m o d e r n w e l f a r e e c o n o m ic s a n d a K a n t i a n j u r i s p r u d e n c e
— a n a ffin ity all th e m o r e s u r p r i s i n g g i v e n the h is t o r ic a l c o n n e c t i o n
b etw een m odern e co n o m ics and n in e te e n th -c e n tu ry U tilita ria n
th in k in g.
N o te th a t w h i l e th e U t i l i t a r i a n m u s t m e a s u r e costs a n d b e n e fits
in te r m s o f a h y p o t h e t i c a l m e a s u r e o f u t i l i t y (“ u t i l e s " ) , th e K a n t i a n
can co n ten t h im se lf w ith th e m ore h u m d ru m d o lla r m easu res o f
e v e r y d a y life . T h i s is b e c a u s e n o t h i n g in th e K a n t i a n c a l c u l u s tu r n s
o n a c o m p a r i s o n o f u tilitie s ; in s te a d , th e q u e s t i o n is w h e t h e r it is
p o s s ib le to a r r a n g e t h i n g s so th a t n o b o d y is w o r s e o ff t h a n th e y w e r e
a t T i m e O n e . T o d e t e r m i n e th is it is o n l y n e c e s s a ry to a s c e r t a in the
n u m b e r o f d o l la r s n e c e s s a ry to c o m p e n s a t e th e M a r s h a n s , th e n u m
b e r o f d o l la r s s p e n t f o r p r o c e s s costs, as w e l l as th e n u m b e r o f d o lla r s
t h e E a r t h l i n g s w o u l d sacrifice b e f o r e t h e y a r e i n d i ff e r e n t b e t w e e n th e
s i t u a t io n existin g at T i m e One and th a t w h i c h o b t a i n s a f t e r the
m a r s h - f illin g s ta tu te h a s b e e n e n a c t e d a t T i m e T w o .
12. T h e p re ce d in g d is c u s s io n has ign o red th e fa c t th a t th e
M a r s h a n s , as ta x p a y e r s , m a y in fa c t b e c o n t r i b u t i n g a s u b s ta n tia l
a m o u n t o f m o n e y in t o the g e n e r a l r e v e n u e f u n d w h i c h o r d i n a r i l y
p a y s fo r p ro c e s s costs. H e n c e , if o n e re fu s e s to d is t in g u is h b e t w e e n
th e M a r s h a n s as t a x p a y e r s a n d the M a r s h a n s as c la im a n t s , it is po ssi
b le to a r g u e th a t a p o r t io n o f th e p ro c es s costs p a i d b y the M a r s h a n s
as t a x p a y e r s s h o u ld n o t b e c o n s id e r e d in d e t e r m i n i n g w h e t h e r th e ir's
is a n easy case. T o p u t the p o i n t in te rm s o f th e t e x t 's e x a m p l e ,
i m a g i n e th a t th e costs o f p r o c e s s in g th e M a r s h a n s ’ v a l i d c la im s o f
$ 1 0 0 , 0 0 0 w e r e $ 9 5 0 ,0 0 0 . S i n c e $ 9 5 0 , 0 0 0 is g r e a t e r t h a n the $ 9 0 0 ,0 0 0
n e t b e n e fit o b t a i n e d b y th e E a r t h l i n g s , th is case w o u l d n o t se e m to
req u ire co m p e n satio n under the fo rm u la p resen ted in the tex t.
I m a g i n e , h o w e v e r , th a t j u d g e s c o u l d p r o p e r l y ta k e a c c o u n t o f the
fa c t th a t the M a r s h a n s p a i d 1 0 p e r c e n t o f the ta x e s in to th e g e n e r a l
re v e n u e fu n d . O n c e this ste p is ta k e n , o n e m i g h t th e n d e d u c t 10
percent from to ta l p ro c e s s costs, allo ca tin g o n ly $8 5 5 ,0 0 0 as the
E a r t h l i n g s ’ sh a re. S i n c e this fig u re is l o w e r t h a n th e $ 9 0 0 ,0 0 0 g a i n e d
b y the E a r t h l i n g s , th e case w o u l d n o w q u a l i f y as o n e r e q u i r i n g c o m
p e n s a t io n under the K a n tia n fo rm u la. P u ttin g the p o in t m ore
g e n erally, co m p e n satio n p r a c t ic e s w il l s y s t e m a t ic a lly be skewed
a g a in s t c l a i m a n t s if f in a n c e d o u t o f a g e n e r a l f u n d r a t h e r t h a n a
s p e c ia l f u n d assessed a g a i n s t those i n d i v i d u a l s a c t u a l l y b e n e f it e d b y
th e p r o p e r t y r e d i s t r ib u t io n u n d e r a tta c k . I sh all, h o w e v e r , l e a v e u n
e x a m in e d the trad itio n al a s s u m p t io n o f co m p e n satio n la w , w h i c h
trea ts as i r r e l e v a n t th e fa c t th a t th e M a r s h a n s a re in fa c t c o n t r i
b u tin g to the g e n e r a l revenue fu n d from w h ich th e y d r a w th e ir
co m p e n satio n .
J u s t as th e M a r s h a n s ’ r e l a t i o n s h i p to the g e n e r a l f u n d h a s b e e n
o v e r s im p l if ie d , so too h a s th e E a r t h l i n g s ’ r e l a t i o n s h ip . A f t e r all, if
the M a r s h a n s a re c o m p e n s a t e d , this m a y ra ise ta x e s im p o s e d o n so m e
o f the E a r t h l i n g s in a n a m o u n t g r e a t e r t h a n th e b e n e fit th e y h a v e
o b t a i n e d f r o m the m a r s h -fillin g o r d i n a n c e . F o r e x a m p l e , w h i l e so m e
E a r t h l i n g s m a y v a l u e th e ir p u r e r w a t e r a t $ 1 0 0 , so m e m a y p u t o n l y
a $ 1 0 v a l u e o n th is b e n e fit; h e n c e if e a c h E a r t h l i n g w e r e t a x e d $ 1 5
to c o m p e n s a t e the M a r s h a n s , tho se w h o p u t th e l o w e r v a l u e o n the
c l e a n e r w a t e r w o u l d su ffer n e t losses in the m o v e m e n t f r o m T i m e
O n e to T i m e T h r e e . T o a v o i d th is p r o b l e m I sh a ll b e a s s u m i n g th a t
n o i n d i v i d u a l E a r t h l i n g ’ s t a x b il l is in c r e a s e d to su c h a d e g re e th a t
it is g r e a t e r t h a n the b e n e fit h e o b t a i n s f r o m th e p r o p e r t y r e d i s t r i
b u tio n .
I t s h o u ld b e e m p h a s iz e d th a t th e a s s u m p t io n s s p e c ifie d in this n o te
224 NOTES TO PAGES 7 4 —7 5
in fa c t c o n c e a l issues o f th e first i m p o r t a n c e . W h i l e th e s im p l if ic a
tio n s th ey a llo w do p e rm it us to g e t to th e h e a r t o f th e t a k in g s
p r o b l e m , as c o n v e n t i o n a l l y u n d e r s t o o d , t h e y s h o u ld c e r t a i n l y b e th e
s u b je c t o f s u b s e q u e n t S c i e n t if ic s c r u t i n y .
13. I t is tru e , o f c o u rse , t h a t a s e c o n d i m p o r t a n t le g a l q u e s t io n
m i g h t w e l l arise f o r a U t i l i t a r i a n j u d g e a t th is p o i n t in th e a n a lys is.
Sin ce a ju d icia l d e c is io n d e m a n d in g c o m p e n sa tio n req u ires t h a t:
(1) U + D > P
a n d w e a r e n o w o n l y d e a l i n g w i t h cases w h e r e :
(2) P > B - C
it f o llo w s th a t a ju d icia l d e c is io n req u irin g c o m p e n sa tio n e n t a ils

a f i n d i n g t h a t:
(3)U + D > P > B - C
In o th e r w ords, a U tilita r ia n ju d g e r e q u ir in g c o m p e n sa tio n w o u ld

be fo rce d to c o n c l u d e th a t th e le g i s l a t u r e h a d m a d e a r a t h e r b a d
b l u n d e r in p a s s in g o u r h y p o t h e t i c a l m a r s h - f il l in g o r d i n a n c e in th e
first p l a c e — s in c e th e costs o f either g r a n t i n g or r e f u s i n g c o m p e n s a
tio n to th e M arsh an s o u tw eigh th e n e t b e n e fits o f th e le g is la t iv e
a c t io n .
T h is percep tion w il l le a d , n atu rally enough, to th e q u e s t io n
w h e t h e r th e j u d g e s h o u l d n o t r e s p o n d to the M a r s h a n s ’ c o m p l a i n t
s i m p l y b y i n v a l i d a t i n g th e s ta tu te a n d r e i n s t i t u t i n g th e le g a l s i t u a
tio n a t T i m e O n e . T h i s q u e s t io n , h o w e v e r , is q u i t e d is t in c t f r o m
th e o n e w i t h w h i c h w e a r e c o n c e r n e d . N o m a t t e r w h i c h w a y it is
answ ered, th e M a rsh a n s w ill be g ran ted co m p e n sa tio n so l o n g as
U + D > P . I f th e s ta tu te is s i m p l y i n v a l i d a t e d , c o m p e n s a t i o n w il l
b e in th e f o r m o f a retu rn o f u n r e s t r ic t e d d e v e l o p m e n t r ig h ts ; if
th e s ta tu te is n o t s tr u c k d o w n , c o m p e n s a t i o n w i l l b e g r a n t e d in th e
f o r m o f m o n e y su fficien t to c o m p e n s a t e fo r th e loss o f d e v e l o p m e n t
rig h ts. I n e it h e r case, h o w e v e r , c o m p e n s a t i o n w il l b e a s s u re d u n d e r
r e s t r a in e d U t i l i t a r i a n p r in c i p l e s .
14. T h e conservative r o le p r e m is e i n f o r m i n g this a c c o u n t o f the
restra in ed K a n tia n calcu lu s sh ou ld b e e m p h a s iz e d . For th e h e a v y
w e ig h t g ra n te d th e sta tu s q u o is o b v i o u s l y c o n d i t i o n e d o n an as
s u m p t i o n th a t th e g e n e r a l d i s t r i b u t i o n o f p r o p e r t y r ig h ts p r e v a i l i n g
a t T i m e O n e is c o n s is te n t w i t h K a n t i a n p r in c i p l e s , as w o u l d b e th e
case in a w e l l - o r d e r e d so ciety. F o r a d is c u ss io n o f th e p r o p r i e t y o f
r e f o r m is t K a n t i a n a p p r o a c h e s , see p p . 8 0 - 8 3 .
1 5 . T h i s is n o t to d e n y the p o s s ib ilit y o f d e v e l o p i n g K a n t i a n c o n
c e p t io n s o f ju s t ic e m o r e e la b o r a t e th a n the s i m p le P r i n c i p l e o f E x
p l o it a t io n d e v e lo p e d in th e text under w h ic h a u n iq u e s o lu tio n
w o u l d b e r e a c h e d in the “ h a r d " cases u n d e r d is c u ss io n . I n d e e d , it
m a y w e ll be p o s s ib le to e la b o r a t e the s i m p le p r i n c i p l e in d iffe r e n t
w a ys , so th a t u n d e r o n e v e r s io n o f the p r i n c i p l e , the M a r s h a n s are
u n d e r s t o o d to b e in a d m is s ib ly e x p l o i t i n g the E a r t h l i n g s , w h i l e u n d e r
a n o t h e r v e r s io n , the E a r t h l i n g s w o u l d b e u n d e r s t o o d to be e x p l o i t
i n g th e M a r s h a n s . G i v e n these t w o d iffe r e n t v e r s io n s o f K a n t i a n i s m ,
a P o l i c y m a k i n g c o u r t m ig h t th e n feel o b l i g a t e d to d e t e r m i n e w h i c h
o f the tw o c o n c e p t i o n s w a s to b e c o n s id e r e d a u t h o r i t a t i v e fo r p u r
p o ses of co n stitu tio n al in t e r p r e t a t i o n , though even here a court
m i g h t w e ll d e c i d e th a t it w il l d e f e r to th e l e g i s la t iv e d e c is io n o n
su cli re fin e d m a tte rs. A t p r e s e n t, h o w e v e r , a K a n t i a n court w o u ld
h a v e little c h o ic e but to d e fe r to th e l e g is la t u r e in “ h a r d c a s e s ,"
sin ce th e h a r d c o n c e p t u a l w o r k r e q u i r e d to p e r m it l a w y e r s to w o r k
b e y o n d the s i m p le p r i n c i p l e h a s n o t b e e n a t t e m p t e d .
16 . S o m e t im e s it m a y b e p o s s ib le to s o f t e n — if n o t e l i m i n a t e —
this h a rs h c h o ic e b y d e v i s i n g a “ p a r t ia l c o m p e n s a t i o n " s o lu tio n u n
d er w h ich th o se M a r s h a n s h u r t m ost s e v e r e ly b y the r e d i s t r ib u t io n
w il l b e p a id , w h il e the o t h e r s w il l be o b l i g e d to a b s o r b the loss. T h e
u t i li t y of such a co m p ro m ise s o lu t io n depends, how ever, on the
p ro c es s costs i n v o l v e d in d i s t i n g u i s h i n g b e t w e e n d e s e r v i n g a n d u n
d eservin g c l a i m a n t s — fo r u n le ss so m e e a s ily a s c e r t a in a b l e fa c to rs
e x ist th a t r o u g h l y m ark out the d e s e r v i n g sub-class, it is p o ss ib le
fo r the p ro c es s costs i n v o l v e d in “ p a r t ia l c o m p e n s a t i o n " to b e e v e n
h i g h e r th a n tho se g e n e r a t e d b y a f u ll c o m p e n s a t i o n system .
1 7 . N o r d o e s m y d e fin it io n o f a C o m p r e h e n s i v e V i e w r e q u i r e su ch
a u n i v o c a l c o n c e r n . S e e n o t e 19 , c h a p . 1, s u p r a .
1 8 . T h e a p p r o a c h is c a l l e d l e x i c o g r a p h i c b e c a u s e it r e s e m b le s the
w ay one uses a d i c t i o n a r y — th a t is, first l o o k i n g o n l y fo r the first
le tte r o f the w o r d s o u g h t, a n d , o n l y a f t e r this first c o n d i t i o n is satis
fied w i t h o u t a u n i q u e s o lu tio n , p r o c e e d i n g to th e s e c o n d le t t e r in a n
effo rt to r e fin e o n e ’ s se a rc h f u r t h e r . F o r m o r e , see R a w l s , A Theory
of Justice 4 2 - 4 4 .
1 9 . A l t h o u g h it m a y b e p o s s ib le to g e n e r a t e a m o d e r a t e l y p l a u s i
b le p h i l o s o p h i c a l t h e o r y w h i c h c o u l d j u s t i f y in p r i n c i p l e this f o r m
o f e cle c tic is m , it w o u l d d ivert us from our present task even to
a t t e m p t su c h a n a c c o u n t h e re . I n a d d i t i o n , e v e n if a p h i l o s o p h i c a l l y
c o m p e l l i n g d e fe n s e o f e c le c tic is m w e r e n o t f o r t h c o m in g , e c le c tic is m
h a s m o r e to r e c o m m e n d it w h e n o n e is d o i n g l a w t h a n w h e n h e is
d o in g p h ilo so p h y— b u t this p r o p o s i t i o n too m u s t r e m a i n u n e lab o

r a t e d f o r th e p r e s e n t.
2 0 . S e e p. 3 6 s u p r a .
2 1 . I t is c o n c e i v a b l e , o f c o u rse , th a t t h o u g h th e K a n t i a n ’ s in i ti a l
b u r d e n o f ju s t if ic a t io n is h e a v ie r , he w i l l fin d it e a s ie r in th e e n d
to d is c h a r g e th is i n i t i a l b u r d e n b y f a s h i o n i n g o v e r w h e l m i n g K a n t i a n
a r g u m e n t s o n b e h a l f o f d e fe r e n c e , w h o s e p e r s u a s iv e p o w e r f a r o u t
m atch es those th a t m ay be advanced by U tilita ria n s. W h ile th e
p r e s e n t state o f t h e o r y h a r d l y p e r m it s c e r t a i n t y o n these m a tte rs,
I c a n t h i n k o f n o a r g u m e n t w h i c h is d i f f e r e n t i a l l y a v a i l a b l e to th e
K a n tia n th a t is l i k e l y to overcom e s y s t e m a t ic a l l y th e fa c t o f h is
h e a v i e r i n i t i a l b u r d e n o f p e r s u a s io n .
22. W h ile it se em s q u i t e clear th a t the a c t iv is t K a n tia n w o u ld
w orry about th e danger of i n s t i t u t i o n a l s e l f- a g g r a n d iz e m e n t , it is
less c l e a r h o w h e w o u l d g o a b o u t d e f i n i n g th e c o n c e p t . O n th e o n e
h a n d , it m a y b e th a t s o m e K a n t i a n s w o u l d h a v e n o s e rio u s o b je c t i o n
to th e U t i l i t a r i a n ’ s d e fi n it io n and un derstan d a s e l f - a g g r a n d iz in g
a g e n c y as o n e th a t s y s t e m a t ic a l l y d is c o u n ts a n t a g o n i s t i c in te r e s ts in
its c o st-b e n e fit a n a ly s is . O n th e o t h e r h a n d , it is p e r f e c t l y p o ss ib le
th a t a K a n t i a n m a y r e p u d i a t e the id e a th a t a g e n c ie s o u g h t to e n g a g e
in c o s t-b e n e fit a n a ly s is o f th e c o n t e m p o r a r y sort. I f th is p o s it io n is
ta k e n , th e K a n tia n w o u ld have to d e fin e a p r o p e r a d m i n i s t r a t i v e
d e c i s i o n m a k i n g p r o c e d u r e b e f o r e p r o c e e d i n g to e x p l a i n th e m a n n e r
in w h ich it co u ld be abused by a se lf-a ggra n d izin g agency. Un
fo rtu n ately, this is a n a r e a w h i c h has re m a in ed q u ite u n e x p lo re d
d e s p it e th e r e c e n t r e b i r t h o f n o n - U t i l i t a r i a n t h i n k i n g , t h o u g h th e r e
a r e so m e in t e r e s t i n g s u g g e s t io n s to b e f o u n d in R a w l s , A Theory
of Justice 1 9 5 - 2 0 1 .
2 3 . I n d e fe n s e o f th e “ e q u a l p r o t e c t i o n ” d i m e n s i o n th e i n n o v a t i v e
K a n t i a n m a y a r g u e th a t e v e n w h e n it is n e c e s s a r y to select a p e r s o n
o u t to se rve m e r e l y as a m e a n s to a n o t h e r ’s e n d , it is p a r t i c u l a r l y
i n v i d i o u s to p e r m i t a state official to s e le c t iv e ly v ic t im i z e o n e r a t h e r
th a n a n o t h e r p e r s o n , s i m p l y o n th e basis o f w h i m o r c a p r ic e . O n c e
a g a i n , h o w e v e r , a g o o d d e a l o f b a s ic p h i l o s o p h i c a l w o r k w o u l d b e
r e q u i r e d b e f o r e th e s e n t im e n t e x p r e s s e d in th e p r e c e d i n g s e n te n c e
c o u l d b e p r e c i s e ly lo c a t e d w i t h i n a g e n e r a l K a n t i a n f r a m e w o r k .
2 4 . I n d e e d , to m y k n o w l e d g e , o n l y F r a n k M i c h e l m a n h a s b e f o r e
n o w c o n s id e r e d th e p o t e n t i a l a p p l i c a t i o n o f K a n t i a n a r g u m e n t s to
c o m p e n s a t i o n la w . F o r a c r it ic a l d is c u ss io n o f h is a t t e m p t , see n. 3 3
in f r a .
2 5 . F o r a n e x p l i c i t s ta t e m e n t o f these b a s ic ro le p r o p o s it io n s , see
c h a p . 2, p p . 3 7 - 3 8 .
26 . S e e p p . 5 7 - 6 0 s u p r a .
2 7 . R a w l s , A Theory of Justice 1 7 9 - 8 3 , 2 5 1 - 5 7 . S e e also, O l i v e r A .
Joh n son , “The K an tia n In te rp re ta tio n ,” 85 Ethics 58 (1974);
Step h en C . D a rw a ll, “ A D e f e n s e o f the K a n t i a n I n t e r p r e t a t i o n , ” 8 6
Ethics 1 6 4 ( 1 9 7 6 ) .
28 . It s h o u l d be r e c a lle d , h o w e v e r , th a t th e r e is n o t h i n g to p r e
vent a ju d g e from m i x i n g his C o m p r e h e n s i v e V i e w s , c a l l i n g u p o n
B e n t h a m to r e m e d y th e i n a d e q u a c i e s a n d o b s c u r it ie s o f K a n t .
29 . See pp. 77-79 supra.
30 . F o r h in ts o f this k in d see F r a n k I. M i c h e l m a n , “ I n P u r s u i t o f
C o n stitu tio n a l W e lfa re R ig h ts: One V ie w of R aw ls’ Th eory of
Ju s tice ,” 121 U. Pa. L. Rev. 9 6 2 , 9 7 8 - 8 1 ( 1 9 7 3 ) ; R o n a l d D w o r k i n ,
“ T a k i n g R i g h t s S e r i o u s l y ,” n. 1 s u p r a at 1 7 6 - 7 8 .
3 1 . See p p . 6 0 -6 4 supra.
3 2 . F o r a v a r i e t y o f v ie w s o n these f u n d a m e n t a l issues o f U t i l i
t a r ia n th e o ry , see the s o u rc e s c ite d at n . 2 s u p r a .
3 3 . In c o n tr a s t, F r a n k M ich elm an ta k es the v i e w th a t it is o n l y
in exce p tio n a l cases th a t a n o n -U tilita ria n ju d g e concerned w ith
fa ir n e s s w ill d is a g r e e w it h h is U tilita ria n c o ll e a g u e . L o o k in g to
R a w ls rather th a n Kant to s p e c if y a n o n -U tilita ria n approach ,
M ich elm an a d v a n c e s a v e r s io n o f th e w e l l - k n o w n D if f e r e n c e P r i n
c i p l e as th e k e y to the f a ir n e s s o f a d e c is io n d e n y i n g c o m p e n s a t io n .
A c c o r d i n g to this p r i n c i p l e , a d e c is io n r e f u s i n g c o m p e n s a t i o n in a
class o f cases is f a ir o n l y i f it w o r k s to th e lo n g -r u n a d v a n t a g e o f the
c la s s to w h o m p a y m e n t h a s b e e n d e n i e d v I m a g i n e , fo r e x a m p l e , th a t
a p a rticu la r M arsh all called Jo e has been d e p riv ed of property
r ig h t s w o r t h $ 1 , 0 0 0 ; im a g i n e f u r t h e r th a t if all M a r s h a n s w e r e c o m
p e n s a t e d , J o e ’ s t a x b ill w o u l d g o u p b y $ 1 , 5 0 0 to p a y fo r the e x t r a
p ro c es s costs th a t a r e g e n e r a t e d ; it w o u l d fo ll o w , th e n , th a t it r e a lly
is in J o e ’ s l o n g -r u n in te re st to h a v e his c l a i m d e n i e d ( p r o v id e d , o f
c o u rse , th a t J o e c a n n o t a r r a n g e th in g s so th a t he is the o n l y M a r s h a n
w h o o b t a i n s c o m p e n s a t i o n ) . In this s i m p l e case, R a w l s ’s D iffe r e n c e
P r i n c i p l e — as M i c h e l m a n a p p l i e s it— se rve s to p r o v i d e a c o n v i n c i n g
e xp la n a tio n fo r w h y it is f a ir to d e n y J o e c o m p e n s a t io n . S i m il a r l y ,
as M i c h e l m a n su ggests (8 0 Haru. L. Rev. 1 1 6 5 , 1 2 2 0 - 2 4 ) , th e r e m a y
b e m o r e c o m p l i c a t e d stories in w h i c h it is n o t in the c la ss’s l o n g -r u n
in te rest to insist o n c o m p e n s a t i o n , t h e r e b y l e g i t i m a t i n g a d e c is io n
d e n y i n g p a y m e n t u n d e r th e D if f e r e n c e P r i n c i p l e .
228 NOTES TO PAGE go
T h i s is a ll v e r y fine so f a r as it goes, b u t it d o e s n o t g o v e r y f a r
a t all. For it seem s a c o m p l i c a t e d way o f s a y in g t h a t u n le s s th e
c l a i m a n t s ta n d s a s e rio u s c h a n c e o f s u f fe r in g a real f in a n c ia l loss o v e r
th e l o n g r u n , th e r e is n o p o i n t in c o m p e n s a t i n g h i m f o r a loss h e h a s
n o t su ffe red . T h e l a w d o e s n o t n e e d p h i l o s o p h y f o r p r o p o s it i o n s so
easy as this o n e . In deed, as n. 4, chap. 2, in d ic a te s , s u ffe r in g a
s e r io u s loss, after lo n g -ru n effects are taken in t o accoun t, is a n
e s s e n tia l p r e c o n d i t i o n o f b o t h th e t r a d i t i o n a l l a w a n d all th e r e f o r m
sc h e m e s d is c u ss e d in this b o o k . In th is sense, M ic h e lm a n ’s “ co n
vergence th e sis” betw een f a ir n e s s and u tility seem s in n o cu o u s
e n o u g h — in d e e d , it is p r o b a b l y tr u e th a t a ll r e m o t e l y p l a u s i b l e v ie w s
“ c o n v e r g e ” o n th e p r o p o s i t i o n th a t s o m e b o d y m u s t suffer a s ig n ifi
c a n t loss b e f o r e h e c a n c l a i m c o m p e n s a t i o n .
T h e r e a l p r o b l e m f o r a n a ly s is is h o w to d e a l w i t h c l a i m a n t s w h o
h a v e s u ffe re d r e a l losses. A n d o n this q u e s t io n , M i c h e l m a n ’ s v e r s io n
o f th e D i f f e r e n c e P r i n c i p l e — if t a k e n s e r io u s ly — w o u l d lead to a n
e x t r e m e p o s it io n r e q u i r i n g c o m p e n s a t i o n in all cases, s in c e in n o n e
c a n J o e b e t o ld th a t d e n y i n g c o m p e n s a t i o n is in th e l o n g - r u n in te re s t
o f th o se r a i s i n g c l a im s o f a t y p e s i m il a r to his o w n . T h i s p o s it io n
(w h ich is not e x p lic itly advanced by M ich elm an ) r e p re s e n ts , of
c o u rse , one th a t is e v e n m ore d e m a n d in g th an th e K an tia n , let
a l o n e the U t i l i t a r i a n , th e o rie s c o n s id e r e d in this essay.
It w o u ld t h e r e f o r e m e r it s u b s t a n t ia l d is c u ss io n but f o r th e fa c t
th a t s in c e M ich elm a n w ro te h is essay it h a s b e c o m e clearer th a t
R a w l s d o e s n o t i n t e n d h is p r i n c i p l e s to a p p l y to issues— lik e those
i n v o l v e d in c o m p e n s a t i o n l a w — th a t d o n o t d i r e c t l y a ffec t the “ b a sic
s t r u c t u r e ” o f s o c ia l o r g a n i z a t i o n . S e e A Theory of Justice 7 —1 1 . T o
M i c h e l m a n ’s c r e d it, h is essay e x p l i c i t l y r e c o g n iz e d th a t th e D i f f e r e n c e
P rin cip le can o n ly “ be a p p lie d by an alo gy to test th e j u s t ic e o f
a c o m p e n sa tio n p ra ctice ” (8 0 Harv. L. Rev. 1 1 6 5 , 1221). Conse
q u e n t l y , u n t i l M i c h e l m a n o r s o m e o n e else w is h e s to r e h a b i l i t a t e th e
e x t r e m e “ R a w l s i a n ” r u l e in th e l ig h t o f R a w l s ’ s f u r t h e r w o r k , I sh all
a s s u m e th a t this p a r t i c u l a r l i n e o f i n q u i r y h a s t u r n e d o u t to b e a
d e ad -en d .
C h apter 5
1. T h i s , m o s t e m p h a t i c a l l y , is n o t to sa y th a t th e u n t r a i n e d p e r s o n
h a s n o id e a s d e a l i n g w i t h l a w a n d p o l it ic s o r t h a t these id e a s h a v e
n o s t r u c t u r e w h a t e v e r . F o r a n o t a b l e e ffo rt to p r o b e these s tr u c tu re s
in th e A m e r i c a n co n text, see R obert E. Lane, P o litical Ideology
( 1 9 6 2 ) , a n d see also L a n e ’ s r e v i e w essay, “ P a t t e r n s o f P o l i t i c a l B e l i e f , ”

in J e a n n e N. K n u tso n ed., Handbook of Political Psychology 83
( 1 973)- N ° r *s li e v e n to d e n y th a t th e t y p i c a l l a y m a n ’s p o l it ic a l
p r i n c i p l e s w o u l d pass the tests o f s e lf-c o n siste n c y a n d c o m p le te n e s s
n e c e ssa ry to m eet th e form al req u irem en ts of a C o m p reh en siv e
V ie w , though this is m y o w n o p in io n . F o r support, see P h i l i p E.
C o n v e r s e , “ P u b l i c O p i n i o n a n d V o t i n g B e h a v i o r , ” in F r e d I. G r e e n -
stein and N e lso n W. P o ls b y , ed., Handbook of Political Science,
v o l. 4, 7 5 ( 1 9 7 5 ) . I n s t e a d th e n a r r o w c l a i m n e e d e d h e r e is th a t the
t y p ic a l u n t r a i n e d a d u l t — e v e n if h e h a s a c o h e r e n t p o l it ic a l id e o l
o g y — d o e s n o t feel in a p o s it io n to assess th e e x t e n t to w h ic h his
political i d e o lo g y h a s b e e n i n c o r p o r a t e d in t o the s t r u c t u r e a n d ru le s
o f the legal system . F o r the s o c io -p o lit ic a l f o u n d a t i o n s fo r this c la im ,
see n. 3.
2. O l i v e r W e n d e l l H o l m e s , “ T h e P a t h o f the L a w , ” 10 Harv. L.
Rev. 4 5 7 , 4 5 9 - 6 4 ( 1 8 9 7 ) . F ° r a n a n a ly s is o f H o l m e s ’ s v ie w s a n d a d is
c u s sio n o f t h e ir u s e fu ln e s s in le g a l th e o ry , see W i l l i a m T w in in g ,
“ T h e B a d M a n R e v is ite d ,” 5 8 Cornell L. Rev. 275 ( 1 9 73 )-
3. W h i l e th e d iv is io n o f l a b o r m a y w e l l be a n e c e ssa ry s o c io lo g ic a l
co n d itio n fo r this d iv o r c e b etw een th e la y m a n ’s a p p ro a c h to l a w
and th e P o l i c y m a k e r ’ s, it is n o t a sufficient c o n d i t i o n . Even in a
s o c ie ty c h a r a c t e r iz e d b y a n e x t e n s i v e d iv is io n o f la b o r , it is p o ss ib le
fo r th e state to m a k e s p e c ia l e ffo rts to t r a in its i n h a b i t a n t s to lo o k
u p o n th e l e g a l system as a n e x p r e s s i o n o f o n e o r a n o t h e r C o m p r e
h e n s i v e V i e w . T o ta k e o n e o f th e m o st o b v i o u s e x a m p l e s , it m a y b e
th a t th e t y p ic a l R u ssia n h a s— a f t e r a h a l f - c e n t u r y — l e a r n e d to e x
p e c t th a t la w - m a k e r s a n d l a w - a p p l i e r s w i l l a t t e m p t to j u s t i f y th e ir
d e c is io n s in term s o f a M a rx ist C o m p reh en siv e V ie w . W h ile it is
tr u e th a t th e R u s s i a n w h o la c k s p r o f e s s io n a l t r a i n i n g w i l l — lik e his
A m e r i c a n c o u n t e r p a r t — b e u n a b l e to f o r m an independent j u d g m e n t
as to th e e x t e n t to w h i c h the e x i s t i n g set o f l e g a l r u le s in fact c o n
fo rm s to tr u e M a rx ist p rin cip les (h o w ever these are understood),
it is at least p o s s ib le th a t h e w i l l a c c e p t on faith the n o t io n th a t
e x i s t i n g ru le s d o in fa c t e x p r e s s M a r x i s t p r in c i p l e s . T h u s , it w o u l d
seem th a t b e f o r e th e g e n e r a l p o p u l a t i o n w i l l d e n y th a t the l a w e x
presses a C o m p r e h e n s i v e V i e w , it is n o t o n l y n e c e ssa ry fo r th e r e to
b e a w e l l - d e v e l o p e d d iv is io n o f la b o r ; it is also n e c e s s a ry fo r the
state to r e f r a i n f r o m i n d o c t r i n a t i n g the g e n e r a l p o p u l a t i o n in t o a
d ete rm in a te C o m p re h e n s iv e V i e w w h ich is p r o c l a i m e d as th e sole
o rth o d o xy. N e ed le ss to sa y this c o n d i t i o n is a m p l y fu lfille d in a
230 NOTES TO PAGES 93 -9 8
p l u r a l i s t d e m o c r a c y lik e th e U n i t e d Sta te s, t h e r e b y m a k i n g it o b v i
o u s to m o s t l a y m e n th a t t h e y c a n n o t assess the e x t e n t to w h i c h t h e ir
p e r s o n a l p o l i t i c a l p r i n c i p l e s a re le g a l p rin cip les w ith o u t th e assis
t a n c e o f a l a w y e r — w h i c h is p r e c i s e ly th e c o n c l u s io n a ss e rte d in the
te x t.
4. Se e , e.g., P e t e r L . B e r g e r a n d T h o m a s L u c k m a n n , The Social
Construction of Reality 4 7 - 1 2 9 (196 7).
5. U n ifo r m it y m a y p e rh a p s be u sefu lly tr e a t e d as th e l in g u is t ic
d i m e n s i o n o f th e m o d e l o f a s i m p l e s o c ie ty d is c u ss e d b y H . L . A .
H a r t in The Concept of Law 8 9 -9 6 (196 1).
6. S e e p p . 4 1 s u p r a .
7. F o r s o m e r e l e v a n t c o m m e n t a r y , see H . L . A . H a r t , The Concept
of Law, chap. 6 (19 6 1); J o s e p h R a z , The Concept of a Legal System,
chap. 8 (19 70 ); R o n a ld D w o r k i n , “ T h e M o d e l o f R u l e s , ” 3 5 U. Chi.
L. Rev. 1 4 , 4 0 - 4 6 ( 1 9 6 7 ) , a n d “ S o c ia l R u l e s a n d L e g a l T h e o r y , ” 8 1
Yale L. J. 8 5 5 , 8 6 8 - 8 1 ( 1 9 7 2 ) .
8. T h e c o n c e p t o f “ m i d d le -c la s s s o c ie t y ” is o f c o u r s e a m b i g u o u s
to th e e x t e n t to w h i c h th e O r d i n a r y O b s e r v e r h a s f a i l e d to a r t ic u l a t e
a “ ru le o f r e c o g n itio n ” w h ic h p ro vid es h im w ith a clear p ro ce d u re
f o r i d e n t i f y i n g w h i c h o f th e d i f f e r i n g p a t t e r n s o f so c ia l in t e r a c t i o n
o b s e r v a b l e in s o c ie ty sh a ll b e id e n t if ie d as th e s o u r c e o f l e g a l l y d e
c is iv e n o rm s . M o r e o v e r , as a n e a r l i e r p a r t o f this c h a p t e r su g g e s te d ,
th e p r e s e n t sta te o f l e a r n i n g o n this s u b j e c t l e a v e s m u c h th a t is o b
scu re. N o n e t h e l e s s , w h i l e a g r e a t d e a l o f c l a r if ic a t io n is r e q u i r e d , it
seem s to b e a b a s ic p r e m is e o f O b s e r v i n g in A m e r i c a n l a w th a t the
l e g a l l y d e c is iv e n o r m s a r e to b e f o u n d b y s c r u t i n iz in g th e in t e r a c t i o n s
o f th e ( e n l i g h t e n e d ) “ m id d le -c la s s e s ” r a t h e r th a n th e m o r e s o f the
“ l o w e r ” classes o n th e o n e h a n d o r th e “ p r i v i l e g e d f e w ” o n th e o th e r.
9. I t w o u l d , o f c o u rse , d e f e a t th e e n t ir e p u r p o s e o f this a c c o u n t
o f d o m i n a n t so c ia l e x p e c t a t i o n s if I w e r e o b l i g e d to s u p p o r t it b y
c it a t io n to a n a s s o r tm e n t o f s o c io lo g ic a l a u th o r i t ie s . F o r O r d i n a r y
O b s e r v e r s n e e d n o s c ie n tific s u p p o r t to l e g i t i m a t e t h e ir o b s e r v a t io n s .
On a som ew h at d if f e r e n t le v e l, how ever, it m ay prove u sefu l to
n o t e th a t th e a p p r o a c h t a k e n h e r e d o e s h a v e a r e l a t i o n s h i p to a n
i m p o r t a n t s tr e a m o f r e c e n t s o c io lo g ic a l w o r k r e p r e s e n t e d b y b o o k s
1 like: Peter L. Berger and Thomas Luckmann, The Social Construc
tion of Reality, n. 5 supra, especially 129-85; Alfred Schutz and
Thomas Luckmann, The Structures of the Life-World, tr. R. M. Jauer
and H. T. Engelhardt, Jr. (1973); as well as Erving Goffman, The
Presentation of Self in Everyday Life (1959) and Behavior in Public
NOTES TO PAGES 9 9 -I O O 231
Places (1963). In a d d it i o n , C la u d e L e v i - S t r a u s s h a s so m e v a l u a b l e
th in g s to say about th e so c ia l p sych o lo g y of possession in The
Elementary Structures of Kinship 8 4 - 9 7 (196 9).
10 . S e e R o n a l d D w o r k i n , “ T h e J u r i s p r u d e n c e o f R i c h a r d N i x o n , ”
18 The New York Review of Books 2 7 - 2 8 ( M a y 4, 1 9 7 2 ) .
11. For a som ew hat s im ila r but m ore fo rm al d is c u ss io n of th e
O r d i n a r y c o n c e p t o f p r o p e r t y , see F r a n k Snare, “The Con cept of
P ro p e rty ,” 9 Am. Phil. Q. 200 (1972). Snare a n a ly z e s p r o p e r t y in
term s o f c o n s t it u t i v e ru le s, i.e., r u le s o f so cial b e h a v i o r th a t m u st be
o b s e r v e d b y th e m e m b e r s o f a c o m m u n i t y in o r d e r fo r it to b e tru e
th a t th e in s tit u t io n o f p r o p e r t y e x ists in th a t c o m m u n i t y . [ F o r d is
c u s sio n s o f c o n s t it u t i v e rules, see J o h n R . S e a r le , Speech Acts 3 3 - 3 6
(1970 ); Jo h n R aw ls, “Two C on cepts of R u l e s , ” 6 4 Phil. Rev. 3
( 1 9 5 6 ) . O n r u le s o f so cial b e h a v i o r , see H . L . A . H a r t , The Concept
of Law 54 -59 (196 1); b u t see R o n a l d D w o rk in , ‘ S o c ia l R u le s and
Legal T h e o r y ,” 81 Yale L.J. 8 5 5 , 8 5 7 - 6 8 (19 7 2 ).]
A c c o r d i n g to S n a r e , “ A owns P ” is tru e , a n d th e in s tit u t io n o f
p r o p e r t y t h e r e fo r e e x is ts in A ’ s c o m m u n i t y , if six ru le s a re o b s e r v e d :
1. R i g h t o f use: A ha s a r ig h t to use P, i.e. (a) p r i m a fa c ie it

is n o t w r o n g fo r A to use P, a n d (b) p r i m a fa c ie it is w r o n g fo r
o t h e r s to i n t e r fe r e w i t h A ’ s u s in g P.
2. R i g h t o f e x c l u s i o n : O t h e r s m a y use P if, a n d o n l y if, A c o n
sents, i.e. (a) if A c o n se n ts , it is p r im a fa c ie not w ro n g fo r
o t h e r s to use P, a n d (b) if A d o e s n ’ t c o n s e n t it is p r i m a fa c ie
w r o n g to use P.
3. R i g h t o f t r a n s fe r : A m a y p e r m a n e n t l y t r a n s fe r the r ig h ts in
r u le s 1 a n d 2 to sp e c ific p e r s o n s b y c o n s e n t.
4. P u n i s h m e n t ru le s : I f so m e o t h e r p e r s o n , B, in t e r fe r e s w it h
A ’ s use o f P o r if B uses P w i t h o u t A ’ s c o n s e n t, th e n B m a y b e
p u n i s h e d in c e r t a in a p p r o p r i a t e m a n n e r s .
5 . D a m a g e ru le s : I f so m e o t h e r p e r s o n , B , d a m a g e s P w i t h o u t
A ’ s c o n s e n t, th e n c e r t a i n a p p r o p r i a t e d a m a g e s m a y b e r e q u i r e d
o f B.
6. L i a b i l i t y ru le s : If P res u lts in c e r t a in w ays in dam age to
th e p e r s o n o r p r o p e r t y o f s o m e o t h e r p e r s o n , B , th e n A m a y b e
h e l d r e s p o n s ib l e a n d d a m a g e s r e q u ir e d .
S n a r e m a k e s t w o i m p o r t a n t q u a l i f i c a t i o n s to his a n a lys is. F ir s t, h e

th in k s th a t r u le s 4 - 6 a re s o m e w h a t p e r i p h e r a l to the c o n c e p t o f p r o p
e r t y ; it is c o n c e i v a b l e th a t th e i n s t i t u t io n c o u l d e x is t w i t h o u t th e m ,
232 NOTES TO PAGE lO O
a l t h o u g h it w o u l d b e a d if f e r e n t o n e f r o m o u rs. S e c o n d , h e d o e s n o t
t h i n k th a t h is s ix r u le s a r e j o i n t l y n e c e s s a ry c o n d i t i o n s f o r the e x i s
t e n c e o f the, in s t i t u t io n . R a t h e r th e y d e fin e w h a t h e c a lls th e “ c o re
c o n c e p t " o f p r o p e r t y . O n e o r m o r e o f r u le s 1 - 6 c o u l d b e m o d ifie d
o r e x c l u d e d in sp e c ific cases w i t h o u t t h e r e b y a b o l i s h i n g th e in s t i t u
tio n . H e g iv e s o w n e r s h i p o f a n o n t r a n s f e r a b l e t h e a t e r tic k e t as a n
e x a m p l e o f p r o p e r t y w i t h r e s p e c t to w h i c h r u le 3 h a s b e e n s u s p e n d e d .
I sh a ll r e t u r n to b o t h o f these p o in ts .
Th ere a r e o b v i o u s s im ila r it ie s b e t w e e n S n a r e ’ s a n a ly s is o f p r o p
erty a n d th e o n e I h a v e a d v a n c e d . H i s r u le s 1 and 2 correspond
r e s p e c t i v e l y to m y c o n d i t i o n s (a) a n d (b). H i s p r i m a fa c ie q u a l i f i c a
tio n in r u le 1 c o r r e s p o n d s to m y o b s e r v a t i o n th a t L a y m a n is n o t e n
t it le d to u s e h is t h i n g in w a y s h a r m f u l to o th e rs ; in r u l e 2(b ), to
th e e x c e p t i o n a l c ir c u m s t a n c e s m e n t i o n e d in m y c o n d i t i o n (b); a n d in
r u l e 2(a), to th e o b v i o u s fa c t th a t t h e r e m a y b e i n d e p e n d e n t r e a s o n s
w h y it is w r o n g for others to use L a y m a n ’ s t h i n g even when he
c o n sen ts .
T h e r e a re, h o w e v e r , i m p o r t a n t d iffe r e n c e s b e t w e e n o u r a c c o u n ts .
F ir s t, S n a r e ’s r u l e 3 sets o u t a s e p a r a t e r ig h t o f t r a n s f e r as p a r t o f
th e d e fi n it io n o f p r o p e r t y . A c c o r d i n g to m y a n a ly s is , alie n atin g a
t h i n g is s i m p l y o n e o f th e m a n y w a y s in w h i c h L a y m a n c a n use it; to
use S n a r e ’ s term s, 3 is n o t a s e p a r a t e r u le , b u t r a t h e r a s p e c ia l case o f
r u l e 1. T h i s is i m p o r t a n t b e c a u s e it is n o t tru e , as S n a r e seem s to
im p l y , th a t a l i e n a t i o n is in p r i n c i p l e e n t i t le d to s p e c ia l i m p o r t a n c e
a m o n g th e p o s s ib le uses o f a t h in g . H e h im s e lt g iv e s th e c o u n t e r
e x a m p l e o f a n o n t r a n s f e r a b l e t h e a t e r tick e t, a n d it w o u l d b e e a s y to
g i v e m a n y m o r e . A s w e sh a ll see, p p . 1 3 6 - 4 1 in f r a , a l i e n a t i o n is a n
i m p o r t a n t use o f th in g s, a n d , in c e r t a i n v e r y s p e c ia l c ir c u m s ta n c e s ,
f o r b i d d i n g L a y m a n to a l ie n a t e h is t h i n g w o u l d m e a n th a t it w o u l d
s i m p l y b e a b a d j o k e to say th a t th e t h i n g r e m a i n e d L a y m a n ’ s t h in g .
T h u s , i f L a y m a n d e te s te d P ica sso , y e t w a s b e q u e a t h e d Guernica a n d
w as fo rb id d e n b y law to sell it, th e r e would b e s o m e t h i n g f u n n y
a b o u t s a y i n g th a t Guernica w a s L a y m a n ’s p a i n t i n g . But these a re
very s p e c ia l c ir c u m s ta n c e s , in w h ic h Laym an has no use fo r th e
t h i n g a n d s o m e o n e else w h o d o e s is w i l l i n g to b u y (o r a c c e p t ) it
f r o m L a y m a n . F o r in th a t case th e p r o h i b i t i o n o f a l i e n a t i o n w o u l d
e x t i n g u i s h th e o n l y use L a y m a n h a s f o r h is t h in g , a n d it w o u l d b e
c o m e m i s l e a d i n g to sa y th a t m y c o n d i t i o n (a) h a d b e e n m e t. B u t so
l o n g as L a y m a n fin d s h is t h i n g u s e fu l, t h e r e is n o re a s o n to d e n y
th a t h e o w n s it s i m p l y b e c a u s e h e is n o t p e r m i t t e d to a l ie n a t e it.
NOTES TO PAGE lO O 233
S n a r e also fa ils to p o i n t o u t th a t the r ig h t to a lie n a t e , lik e the r ig h t

to use a t h i n g in a n y o t h e r w a y , is a p r i m a fa c ie r ig h t.
S e c o n d , S n a r e b e lie v e s th a t r u le s 4 - 6 a r e “ p e r i p h e r a l ’ ' to the c o n
c e p t o f p r o p e r t y . I n this he is w r o n g , b e c a u s e t h e y are e n t i r e l y i n
d e p e n d e n t o f it, a l t h o u g h fo r d iffe r e n t rea s o n s . R u l e 4 is s i m p l y a
c o n s e q u e n c e o f th e fa ct th a t i f B in t e r fe r e s w i t h th e e x e r c is e o f any
o f A ’s r ig h ts he m a y be s u b j e c t e d to so m e f o r m o f n e g a t i v e sa n c tio n .
O t h e r w i s e it w o u l d m a k e n o sense to say th a t A had a right w ith
w h i d i B h a d in t e r fe r e d . B u t this tells us s o m e t h i n g a b o u t rig h ts, n o t
a b o u t p r o p e r t y . It is a c o n s t it u t i v e r u le o f th e in s ti t u t io n o f r ig h ts
th a t i f A has a r ig h t, th e n B h a s a d u t y n o t to in t e r fe r e w i t h A ’ s
e x e r c is e o f it. A n d it is p a r t o f the c o n c e p t o f d u t y th a t if o n e
b r e a c h e s his d u t y , o n e is p r o p e r l y l i a b l e to a n a p p r o p r i a t e sa n c tio n .
See H a rt, The Concept of Law, s u p r a , 7 9 - 8 8 . B u t this d o e s n o t h e l p
us to d is t in g u is h b e t w e e n p r o p e r t y a n d , say, th e r ig h t to p e r s o n a l
s e c u r ity . T h e sam e m a y b e said o f r u le 5 , h o l d i n g a b r e a c h e r fo r the
d a m a g e s r e s u l t in g f r o m th e b r e a c h . N o r d o e s th e s ix th r u le seem
n e c e ssa ry fo r the in s tit u t io n o f p r i v a t e p r o p e r t y to e x is t — in d e e d , if
A m ay not b e h e ld r e s p o n s ib le fo r th e d a m a g e his t h i n g causes, he
m a y w e ll h a v e a p r o p e r t y r ig h t o f a n e x c e p t i o n a l l y v a l u a b l e k in d .
F in a lly Snare w ro n g ly b e lie v e s th a t any of r u le s 1-6 co u ld be
m o d ifie d o r s u s p e n d e d w i t h o u t e l i m i n a t i n g p r o p e r t y . W e h a v e seen
th a t r u le s 4 - 6 s h o u ld be exclu d ed as h a v i n g n o th in g to d o w it h
the c o n c e p t o f p r o p e r t y . R u l e 3 s h o u l d be r e g a r d e d as a p a r t i c u l a r
in s ta n c e o f r u le 1, a n d is th e r e f o r e s u p e r flu o u s . B u t, fo r re a s o n s
g i v e n in th e tex t, r u le s 1 a n d 2, w h i c h c o r r e s p o n d to m y c o n d it io n s
(a) a n d (b), a r e i n d i v i d u a l l y n ec e ssa ry , a n d j o i n t l y sufficient, b e fo r e
som e th in g can b e said to b e l o n g to Laym an. I ta k e it th a t m y
general p o in t is s o m e t h i n g lik e what W ittg e n ste in had in m in d
when, as N o r m a n M alco m re c a lls: “ On one w alk he gave to m e
each tree th a t w e passed , w i t h th e r e s e r v a t io n th a t I w as not to
c u t it d o w n o r d o a n y t h i n g to it, o r p r e v e n t the p r e v i o u s o w n e r s
f r o m d o i n g a n y t h i n g to it: w i t h tho se r e s e r v a t io n s it w a s h e n c e f o r t h
mine.” N . M a lco lm , Ludwig Wittgenstein-A Memoir 3 1 (1967).
12 . See pp. 2 9 - 3 1 supra.
1 3 . It is p o ss ib le , o f c o u rse , th a t L a y m a n m a y n o t b e completely
e s t r a n g e d f r o m his t h i n g b u t m a y be p e r m i t t e d to use it as a m e m
b e r o f a g r o u p in w h o s e w e l f a r e the state is in te r e s te d . T h u s L a y
m an, w h ile s t r o l li n g in a p u b lic park, co u ld w ell report th a t it
u s e d to b e his.
234 NOTES TO PAGES 102 - o 8
14. See H. L. A. H art, “The A scrip tio n of R e sp o n sib ility and

R i g h t s , " in A n t o n y F l e w , ed., Logic and Language, F i r s t Series, 1 5 1
( 1 9 6 5 ) , in w h i c h th e n o t i o n o f a p rim a fa c ie case is d is c u ss e d in
te r m s o f “ d e f e a s a b l e c o n c e p t s .” H a r t ’ s a n a ly s is was v ig o ro u sly at
t a c k e d b y P e t e r G e a c h in “ A s c r i p t i v i s m , ” 6 9 Phil. Rev. 221 ( i9 6 0 ) ,
a n d b y G e o r g e P i t c h e r in “ H a r t o n A c t i o n a n d R e s p o n s i b i l i t y , " id.
at 226, and he su b seq u en tly re p u d ia te d it. R e c e n t l y R ic h a rd Ep
ste in h a s a t t e m p t e d to r e h a b i l i t a t e H a r t ’ s a n a ly s is in “ P l e a d i n g s a n d
P re su m p tio n s," 40 U. Chi. L. Rev. 5 5 6 (19 7 4 ). F o r an oth er attem pt
to sa v e s o m e t h i n g o f H a r t ’s a n a ly s is , see J o e l F e i n b e r g , Doing and
Deserving 1 1 9 - 5 1 ( 1 9 7 0 ) .
15. See the parallel treatment in chap. 2, pp. 31-39 supra.
16. A s in our t r e a t m e n t o f S c i e n t if ic r o le th e o r y , our e x c l u s iv e
c o n c e r n h e r e w i l l n o t b e w i t h th e “ p e r f e c t l y ” r e s t r a in e d j u d g e w h o
im a g i n e s th a t a ll c h a l l e n g e d a c t io n s a r e c o n s is te n t w i t h th e u l t im a t e
s t a n d a r d s o f le g a l j u d g m e n t , b u t in s te a d w i t h th e “ r e a l i s t i c a l l y " r e
s t r a i n e d j u d g e w h o r e c o g n iz e s a n o c c a s io n a l a b e r r a t i o n w i t h o u t i n
f e r r i n g th e e x i s t e n c e o f a s y s te m a tic m a l f u n c t i o n .
1 7 . I t m a y b e o b j e c t e d th a t this p r o j e c t in d e fi n it io n is u n f a i t h
f u l to th e s p ir it o f A m e r i c a n O r d i n a r y O b s e r v i n g in th a t it p r o p o s e s
a set o f t e c h n ic a l r o le c o n c e p t s w h i c h h a v e n o p l a i n r e l a t i o n s h i p to
n o n p ro fessio n al ta lk . T h i s o b je c t i o n , h o w e v e r , m is ta k e s th e range
o f a p p l i c a t i o n o f O r d i n a r y O b s e r v i n g m e t h o d s in th e p r e s e n t le g a l
cu ltu re. W h il e it is q u i t e tr u e th a t m a n y o f o u r b a s ic substantive
d o ctrin es have an O rd in a ry O b se rv in g s tr u c tu re , A n g lo -A m e rica n
ta lk a b o u t p r o c e s s h a s l o n g b e e n d o m i n a t e d b y a h i g h l y t e c h n ic a l
d is c o u rs e . I n d e e d , th e c o e x is t e n c e o f this t e c h n ic a l p r o c e s s -ta lk a n d
o rd in a ry su bstan ce-talk is o n e of th e m o st s t r ik i n g paradoxes of
A m erican l a w w h e n v i e w e d in a c o m p a r a t i v e p e r s p e c t i v e . S e e e.g.,
M ir ja n D am aska, "Stru ctu res o f A u th o rity an d C o m p a ra tiv e C rim
in a l P r o c e d u r e , " 84 Yale L.J. 480, 5 2 6 - 9 (1975). For present p u r
poses, h o w e v e r , w e n e e d n o t a n a l y z e this p a r a d o x b u t s i m p l y n o te
its e x i s t e n c e in o r d e r to a c q u i t o u r s e lv e s o f th e c h a r g e o f f a l s i f y i n g
th e e x i s t i n g s t r u c t u r e o f O r d i n a r y l e g a l a n a ly s is.
The extent to which an Observer can be an aggressive re
18.
formist without straining his entire methodology is not at all clear.
Given the importance of the distribution of wealth in identifying
one or another social pattern ot expectation as “dominant," it is un-
certain how far an Observing iudge can go in challenging the pre
vailing distribution as inconsistent with “dominant" mores wldiout
NOTES TO PAGES 1 0 8 -1 3
235
rend erin g the n o tion of O b serv a tio n in co h e re n t. T h i s im p o rtan t

q u e s t io n , h o w e v e r , is best le ft fo r m o r e e x t e n s iv e c o n s id e r a t io n at
a n o t h e r tim e s in c e ta k in g s d o c t r i n e — u n l ik e o t h e r a rea s— d o e s n o t
c a ll u p a n y s tr o n g r e fo r m is t im p u l s e a m o n g s t the O r d i n a r y j u d i c i a r y .
1 9 . T h u s , a principled O b s e r v e r is a j u d g e w h o assu m es th a t the
lit ig a n ts a re w e ll-s o c ia liz e d a n d so w i l l a c c e p t d i s a d v a n t a g e o u s official
d e c is io n s w i t h o u t a d e e p sense o f g r ie v a n c e , as w o u l d be the case in
a “ w e l l - o r d e r e d ’ ' so ciety. I n c o n tr a s t, a pragmatic O b s e r v e r is w i l l
i n g at tim e s to m a k e l e g a l l y r e l e v a n t th e f a c t th a t s u b s t a n t ia l d e p a r
tu re s f r o m this “ w e l l - o r d e r e d ’ ’ so c ia l n o r m a re c o m m o n . A s in the
case o f r e f o r m is m (see n. 1 8 s u p r a ) a n o v e r l y l a r g e d o se o f p r a g m a
tism m a y s u c c e e d in r e n d e r i n g p ro b le m a tic the c e n t r a l O b se rv in g
c l a im th a t it is p o s s ib le to i d e n t i f y a d e t e r m i n a t e set o f so cial e x
p e c t a t io n s as “ d o m i n a n t , ” but here too t a k in g s l a w is h a r d l y the
p l a c e to lo o k fo r a c t u a l d e c is io n s w h i c h pro b e* m e t h o d o l o g i c a l lim its.
I h a v e n o t f o u n d a n y e x i s t i n g j u d i c i a l o p i n i o n w h o s e p r e m is e s w e r e
not o f an en tirely p rin c ip le d ch aracter.
20. S e e p p . 5 7 - 8 s u p r a .
2 1 . Se e , e.g., C i t y o f P i t t s b u r g h v. A l c o P a r k i n g C o r p o r a t i o n , 4 1 7
U . S . 3 6 9 ( 1 9 7 4 ) , w h i c h is d is c u ss e d at l e n g t h in n. 3 4 , clâp. 3 s u p r a .
2 2 . W e shall, in o u r d e t a il e d d o c t r i n a l d is c u ss io n , ta k e p a i n s to
n o te the o c c a s io n s upon w h ich the degree of ju d icial d e fe r e n c e
accep ted has an im p a ct upon th e d o ctrin al c o n c l u s io n s reached.
See, e.g., p p . 1 3 9 - 4 1 , 1 5 1 - 5 5 , 2 4 7 - 4 8 , 2 6 0 - 6 4 in fr a .
2 3 . S e e o p i n i o n s c it e d at n n . 4 5 a n d 4 6 o f c h a p . 3 a n d n n . 2 5 a n d
4 1 o f c h a p . 6.
C h a p t er 6
1. F o r a m o r e p r e c is e s ta t e m e n t of the k in d of r e s tr a in t char
a c te r is tic o f th e c o n t e m p o r a r y j u d i c i a r y , see c h a p . 5, p p . 1 0 9 - 1 0 .
2. It w a s J u s t i c e H o l m e s w h o set th e m o d e r n style b y d e c l a r i n g —
w ith so m e p r i d e — th a t t a k in g s law d e a lt o n ly in “ q u e s tio n [s ] of
d e g r e e . . . [w h ic h ] c a n n o t b e d is p o s e d o f b y g e n e r a l p r o p o s it i o n s .”
P e n n s y l v a n i a C o a l C o . v. M a h o n , 2 6 0 U . S . 3 9 3 , 4 1 6 ( 1 9 2 2 ) . S e e also
his s i m ila r s e n t im e n t s at p. 4 13. H undreds o f ju d g e s have, in a
p a r o d y o f stare decisis, i n v o k e d H o l m e s 's w o r d s as a c o m p l e t e s u b s ti
t u t e fo r s e rio u s t h o u g h t . T h i s is n o t to say, h o w e v e r , th a t H o l m e s ’ s
o p in io n w a s c a r e le s s ly w r i t t e n . A s w e sh a ll see, p p . 156 -6 5 in fr a ,
his r e l u c t a n c e to b e m o r e e x p l i c i t c a n be e x p l a i n e d b y c e r t a in u n i q u e
f e a tu r e s o f the case b e f o r e h im .
236 NOTES TO PAGES II3 -1 5
3. F o r tho se w h o w o u ld p re fe r a term m o re n eu tral th a n “ ob

s c u r a n t i s t ,” p e r h a p s “ u n r e f l e c t i v e ” w i l l d o . S i n c e O r d i n a r y O b s e r v i n g
p r e s u p p o s e s a c o m m o n u n d e r s t a n d i n g o f c e r t a i n b a s ic c o n c e p t s th a t
o r g a n iz e so c ia l reality— o f w h ich “ p ro p erty” is ce rta in ly o n e — it
sh ou ld not be su rp risin g th a t O rd in a ry ju d g e s ra re ly engage, at
lea st in e a s y cases, in se lf-c o n sc io u s e x a m i n a t i o n o f th o se c o n c e p ts .
T h i s t e n d e n c y t o w a r d u n r e fle c t iv e n e s s is e a s il y c a r r ie d o v e r to the
“ h ard ” cases s in c e r e fle c tio n w i l l reveal th a t e x i s t i n g p r a c t ic e s d o
not t h r o w a c l e a r l i g h t o n th e j u d g e ’ s d iffic u lty — t h e r e b y u n d e r
m in in g th e appeal of a m ode of ju rid ic a l reaso n in g w hose very
c h a r m is its “ c o m m o n - s e n s e ” c h a r a c t e r .
4. See, e.g., N e b b i a v . N e w Y o r k , 2 9 1 U . S . 5 0 2 ( 1 9 3 4 ) ; W e s t C o a s t
H o t e l C o . v. P a r r is h , 3 0 0 U . S . 3 7 9 (1937); L in co ln Federal L a b o r
U n i o n v. N o r t h w e s t e r n I r o n & M e t a l C o ., 3 3 5 U . S . 5 2 5 ( 1 9 4 9 ) .
5 . See, e.g., E l P a s o v. S i m m o n s , 3 7 9 U . S . 4 9 7 ( 1 9 6 5 ) .
6. S e e p p . 4 3 , 60, 1 0 9 s u p r a .
7. F e d e r a l P o w e r C o m m i s s i o n v . H o p e N a t u r a l G a s C o ., 3 2 0 U . S .
5 9 1 ( x 9 4 4 )-
8. 2 7 2 U . S . 3 6 5 ( 1 9 2 6 ) . T h e C o u r t u p h e l d a l o c a l z o n i n g o r d i n a n c e
f o r b i d d i n g c e r t a i n c o m m e r c i a l a n d in d u s t r i a l uses o f a p p e l l e e ’s la n d ,
r e s u l t i n g in a 7 5 % d i m i n u t i o n o f its v a l u e .
9. T h e C ourt has m ade no im p o rta n t d o ctrin al advance sin ce
P e n n s y l v a n i a C o a l v. M a h o n , n. 2 s u p r a I n m o s t r e c e n t cases it h a s
n o t a t t e m p t e d to i m p r o v e u p o n H o l m e s ’ s obiter g l o r i f ic a t io n o f a d
h o c d e c is io n m a k i n g , a n d h a s in s te a d p r o c e e d e d i m m e d i a t e l y to a
p a rticu la ristic w e ig h in g -u p of fa c to r s w h o s e ch aracter and w eig h t
a r e n e v e r c l e a r l y assessed. E v e n P r o fe s s o r D u n h a m , w h o sees p a t t e r n s
in som e S u p re m e C o u r t d e cisio n s, co n fe sse s p e r p l e x i t y when con
f r o n t e d w i t h o t h e r h o l d in g s , d e c l a r in g , “ O l d e r tests a n d g u i d e s h a v e
g i v e n w a y , a n d th e r e is a t e n d e n c y in the o p i n i o n s to s u b s t it u t e a
v a g u e e t h ic a l s t a n d a r d f o r a n y o b j e c t i v e st a n d a r d . ” A l l i s o n D u n h a m ,
“ G r i g g s v. A l l e g h e n y C o u n ty in P e rsp e ctive : T h irty Years of Su
p r e m e C o u r t E x p r o p r i a t i o n L a w , ” 1962 Supreme Court Rev. 6 3 , 7 3 .
10 . S e e c h a p . 7, p p . 1 6 8 - 7 0 , 2 7 0 - 7 1 .
11. W h ile this e ffo rt m ay be understood as one w h ich m oves
b e y o n d th e s u r fa c e l a n g u a g e o f le g a l o p i n i o n s in q u e s t o f a “ d e e p e r
s t r u c t u r e ,” it is i m p o r t a n t to d is t in g u i s h th e e n t e r p r is e attem pted
h e r e f r o m th o se m o u n t e d u n d e r th e S t r u c t u r a l i s t b a n n e r t h a t is so
f a s h i o n a b l e t o d a y in n o n l e g a l circles. I n p a r t i c u l a r , m y a c c o u n t o f
th e l a w as b a s e d o n th e m e t h o d s o f O r d i n a r y O b s e r v i n g ' d o e s n o t
NOTES TO PAGES 1 1 5 —17 237
req u ire a n e l a b o r a t e set o f t r a n s f o r m a t i o n a l r u le s w h i c h a re said

to p erm it an a n a ly s t to m ove from “ deep structu re” to “ su r fa c e
ta lk .” I n s te a d , th e id e a s b e h i n d th e O r d i n a r y O b s e r v e r ’ s a p p r o a c h
are m ore a p ro d u ct o f W ittg e n ste in th a n C h o m s k y o r L e v i-S t r a u s s .
I f th e re is a S t r u c t u r a l is t e le m e n t in the a n a lys is, it e n t e r e d at a n
e a r l i e r sta g e w it h th e d e v e l o p m e n t o f the tw o p o la r itie s , S c i e n t i f i c /
O r d i n a r y a n d P o l i c y m a k e r / O b s e r v e r a n d the s u b s e q u e n t g e n e r a t io n
o f the f o u r le g a l a n a l y t i c s p o r t r a y e d in the ta b le at c h a p . 1, p. 1 7 . I n
a t t e m p t i n g this “ s t r u c t u r a li s t ” a c c o u n t o f l e g a l m e n ta litie s , h o w e v e r ,
I w a s n o t g u i d e d b y the classic S t r u c t u r a l is t l it e r a tu r e .
12. T h is is n o t to sa y th a t all cases a r e e a s y fo r th e S c ie n tific
P o l i c y m a k e r — o n l y th a t his h a r d cases a r e d iffe r e n t f r o m those w h ic h
p e rp lex th e O r d i n a r y O bserver. F o r m ore on this see p p . 124 -29
in fr a .
13 . See p p . 2 6 - 2 9 supra.
14 . F o r a f u l l e r s t a te m e n t o f the O b s e r v e r ’s c o n c e p t io n o f p r o p
e rty , see p p . 9 7 - 1 0 0 s u p r a , a n d n. 1 1 , c h a p . 5.
1 5 . W h i l e the h o l d e r o f a le g a l p r o p e r t y r ig h t m u st a l w a y s a p p e a l
to th e o p i n i o n of a leg a l sp e c ia lis t b efore he can m ake out his
rig h ts in o r d i n a r y c o n v e r s a t io n , it s h o u ld b e a p p a r e n t th a t th e re are
m a n y re a s o n s the v ie w s o f a sp e c ia list m a y seem r e q u ir e d .
For e xam p le, there m ay be a c o n flic t b etw een social p r a c tic e s
g i v i n g o w n e r s h i p to o n e L a y m a n , a n d a le g a l d o c u m e n t a w a r d i n g
it to a n o t h e r ; o r s e v e r a l le g a l d o c u m e n t s e a c h p u r p o r t i n g to g iv e
o w n e r s h i p o f th e sa m e t h i n g to a d iffe r e n t L a y m a n ; o r c o n flic t i n g
sets o f p r a c t ic e s a n d d o c u m e n t s in v a r i o u s c o m b in a t io n s .
The p r e c e d i n g e x a m p l e s a ll i n v o l v e cases in w h i c h a c l a im to a
t h i n g is c u r r e n t l y a m a t t e r o f o n g o i n g d is p u te . B u t in the p a r a d i g m
case o f le g a l p r o p e r t y , th e a p p e a l to the sp e c ia lis t is m a d e n o t in
o r d e r to re s o lv e a d is p u t e , b u t s i m p l y in o r d e r to k n o w ju s t w h a t it is
th a t o n e o w n s . A n e x a m p le w o u ld be p r o p e r t y c l a i m e d u n d e r an
u n d i s p u t e d w ill. O n c e th e s p e c ia lis t o p i n i o n h a s b e e n r e n d e r e d and
the a p p r o p r i a t e so c ia l p r a c t ic e s h a v e b e e n e s ta b lis h e d , the c h a r a c t e r
o f L a y m a n ' s r ig h t c h a n g e s f r o m le g a l to so c ia l— sin ce h e n o l o n g e r
r e q u ir e s a sp e c ia lis t o p in io n to m ain ta in h is cla im in o rd in a ry
c o n v e r s a t io n .
F o r th e sak e o f c l a r it y it is w o r t h o b s e r v i n g th a t so m e ty p e s o f
le g a l p r o p e r t y a r e b a s e d o n — o r at least c lo s e ly r e la t e d to— sp e c ia l
fo r m s o f so cial p r a c t ic e . E x a m p l e s o f su ch p r a c t ic e s a re to b e f o u n d
in stock e x c h a n g e s a n d m a r k e ts in such th in g s as m i n e r a l leases.
238 NOTES TO PAGES 118-21
T h e s e a r e d if f e r e n t f r o m O r d i n a r y so c ia l p r a c t ic e s in tw o w a y s : th e y
a r e s p e c ia liz e d , i n s t i t u t io n a l , a n d m o r e o r less s e lf- c o n t a in e d ; and
th e t h in g s w i t h r e s p e c t to w h i c h p e o p l e in t e r a c t a r e ite m s o f legal
p r o p e r t y , i.e., t h in g s o n e c a n n o t c l a i m to o w n w i t h o u t a p p e a l to a
le g a l s p e c ia lis t. For a fu rth er d is c u s s io n of le g a l property, see
p p . 1 5 6 - 6 7 in f r a .
1 6 . W e a r e c o n c e r n e d h e r e n o t w i t h L a y m a n ' s p s y c h o l o g i c a l state,
b u t w i t h th e k i n d o f j u s t if ic a t io n h e m a y a d v a n c e o n b e h a l f o f h is
c l a i m to o w n e r s h i p . T h e p o i n t is th a t L a y m a n c a n m a k e o u t a g o o d
j u s t if ic a t io n f o r h is c l a i m to s o c ia l p r o p e r t y w i t h o u t a p p ea lin g to
an e xp ert o p in io n w h o s e m e r it s h e c a n n o t e v a l u a t e , w h i l e this is
n o t so w i t h l e g a l p r o p e r t y . T h i s is c e r t a i n l y c o n s is te n t w i t h L a y m a n
f e e l i n g a g r e a t d e g r e e o f s u b j e c t iv e c e r t a i n t y w h e n m a k i n g a c l a im
to le g a l p r o p e r t y — h e m a y , fo r e x a m p l e , h a v e g r e a t c o n fi d e n c e in his
la w y e r’s a b ility and ju d g m e n t and so be very upset if h is le g a l
p r o p e r t y r ig h t s a r e t a k e n from h im w ith o u t co m p e n sa tio n . H ence
th e thesis th a t th e O r d i n a r y O b s e r v e r a ffo rd s g r e a t e r c o n s t i t u t i o n a l
p r o t e c t i o n to so cial p r o p e r t y th a n le g a l p r o p e r t y s h o u ld not b e seen
as a n a p p l i c a t i o n o f th e U t i l i t a r i a n ’ s A p p e a l to C i t i z e n D is a ff e c t io n
(see pp. 46 -6 8 su p ra). R ath er, th e O rd in a ry O b s e r v e r ’s d iffic u lty
in p r o t e c t i n g le g a l p r o p e r t y stem s f r o m th e f a c t th a t l a y m e n t h e m
se lve s r e c o g n iz e th e i n a p p l i c a b i l i t y o f O r d i n a r y c o n c e p t s in p r o p e r t y
d is p u t e s of this k in d . For a fu rth er e lab o ratio n , see pp. 156 -6 3
in f r a .
1 7 . S e e p p . 1 5 6 - 6 7 in f r a .
1 8 . B u t w h a t i f L a y m a n ’ s title o v e r the s trip w a s th e n b e i n g c o n
tested in good f a it h by an oth er w e ll-s o c ia liz e d in d ivid u a l? Then
L a y m a n ’ s c l a i m to the s tr ip w o u l d b e m e r e l y le g a l, r a t h e r th a n social,
p r o p e r t y , w h o s e s ta tu s u n d e r th e t a k in g s c la u s e w i l l b e c o n s id e r e d
s e p a r a t e ly a t p p . 1 5 6 - 6 7 i n f r a ; see e s p e c i a l l y n. 9 6 f o r a t r e a t m e n t o f
this p a r t i c u l a r p r o b l e m .
1 9 . S e e p p . 1 5 6 - 6 7 in f r a .
20 . T h u s , d e s p it e the ad coelum r u le , th e g o v e r n m e n t m a y tak e
a ir s p a c e th a t is le g a l p r o p e r t y w i t h o u t c o m p e n s a t i o n . U n i t e d S ta te s v.
Causby, 328 U .S . 256, 26 0 -6 1 (1946). But when so cial p r o p e r t y is
t a k e n b y th e use o f g l i d e p a t h s close to th e e a r t h ’ s s u r fa c e , c o m p e n
s a tio n is r e q u i r e d . Causby, s u p r a a t 2 6 6 - 6 7 ; G rig g s v. A llegh en y
C o u n t y , 3 6 9 U . S . 8 4 ( 1 9 6 2 ) . F o r a m o r e e x t e n d e d d is c u ss io n o f the
a i r p l a n e cases, see n. 7 4 in f r a .
2 1 . S e e p p . 1 5 6 - 6 7 in f r a .
NOTES TO PAGES 121-22 239
22. T h e d is t in c t io n b etw een le g a l and so cial p r o p e r ty is u s e fu l

in a n a l y z i n g the c lo s e ly r e la t e d p r o b l e m o f w h e n a use o f p r o p e r t y
“ vests,” giv in g rise to p ro p erty r ig h ts th a t a re protected by the
t a k in g s cla u se. S u p p o s e th a t L a y m a n o b t a i n s a p e r m it to b u i l d a
h o te l o n his p r o p e r t y , a n d s h o r tly t h e r e a f t e r th e z o n i n g o r d i n a n c e
is a m e n d e d so as to p r o h i b i t h o te ls in his d is tric t. H i s p e r m it is r e
voked, and Laym an b r in g s suit. W ith som e rare e x c e p t io n s , e.g.,
H u ll v. H un t, 53 W a s h .2d 125, 331 P .2d 856 (1958), c o u rts are
a g r e e d th a t an application for, nr an is s u a n c e of, a b u i l d i n g p e r m it ,
w i t h o u t m o r e , d o e s n o t set u p a n y r ig h t o f L a y m a n in his p r o p e r t y
use d e s p ite th e m on etary loss su ffe re d by th e lic e n s e r e v o c a tio n .
See, e.g., S c h n e i d e r v. L a z a r o v , 2 1 6 T e n n . 1, 3 9 0 S . W . 2 d 19 7 (1965).
I n o r d e r to a c q u i r e sucli a r ig h t , L a y m a n m u s t h a v e m a d e a sub-
s t a n t ia l c h a n g e in th e l a n d , o r in c u r r e d s u b s t a n t ia l e x p e n d i t u r e s o r
o b l i g a t i o n s in r e l ia n c e o n the p e r m it , see, e.g., G u le zian v. M an-
Chester, 112 N .H . 135, 290 A . 2d 631 (1972); P o c z a te k v. Z o n in g
B o a rd o f A p p e a ls , 26 A .D . 2d 5 5 6 , 2 7 0 N .Y .S . 2d 980 (19 6 6 ), thereby
p la cin g him self in a s itu a tio n at least an alo g o u s to those w here
L a y m a n ’s h o te l is in actual existence— a n d so q u a lifie s as social
p r o p e r t y w h o s e p r o t e c t io n c o n s titu te s th e p rim a ry concern of the
O rd in a ry O bserver. In deed, so m e c o u r t s insist th a t Laym an m u st
a ctu ally b e g in c o n s t r u c t io n b efo re his h o te l q u a lifie s fo r c o n s t it u
t io n a l p ro tectio n — d e cla rin g th a t p re p a ra tio n (n o m atter how
co stly) is in sufficient to j u s t i f y c o n s t i t u t i o n a l p r o t e c t io n fo r the p r o
te c te d use. Se e S m i t h v. M . S p i e g e l a n d S o n s , I n c ., 3 1 A .D .2 d 819,
2 9 8 N . Y . S . 2 d 4 7 ( 1 9 6 9 ) , a ff’ d 2 4 N .Y .2 d 920, 30 1 N .Y .S .2d 984, 249
N .E .2 d 763 (1969); A rden H. R ath k o p f, The Law of Zoning and
Planning, 3 d ed., c h a p . 5 7 . W h i l e this lin e is a n i n t u i t i v e l y p l a u s ib l e
o n e fo r a n O r d i n a r y O b s e r v e r , it is o n l y v a l i d u n d e r v e r y sp e c ia l
c o n d it io n s fo r a S c ie n t ific P o licym ak er. For a m ore e x t e n s iv e d is
c u ssio n o f the d iffic u lties th e P o l i c y m a k e r c o n fr o n t s , see th e te x t at
p p . 1 2 9 - 3 6 in fr a .
2 3 . J u s t as p e o p l e d o n o t l iv e b e n e a t h the s u r fa c e o r in th e air,
t h e y d o n o t h a b i t u a l l y w a l k o n w a t e r . T h u s th e d is t in c t io n b e t w e e n
so c ia l a n d le g a l p r o p e r t y c a n se rve as a k e y to t w o l e a d i n g cases d e a h
in g w ith the t a k i n g o f w a t e r r ig h t s th a t h a v e se r v e d to m y s t ify a
g e n e r a t i o n^ o f S c i e n t i fic a lly in c l i n e d l a w stu d e n ts a n d pro fesso rs. I n
b o th cases, th e A r m y C o r p s o f E n g i n e e r s b u i l t a d a m th a t r a is e d the
w a t e r le v e l in th e a d j o i n i n g r i v e r sy ste m ; in the e a r li e r case, U n i t e d
S ta te s v. C res s, 2 4 3 U . S . 3 1 6 ( 1 9 1 7 ) , r a i s i n g th e w a t e r le v e l m a d e it
im p o s s ib le f o r th e c l a i m a n t to c o n t i n u e o p e r a t i n g h is m i ll b y w a t e r
pow er, thereby re n d e rin g th e m i ll v a lu e le s s a n d cau sin g a $ 1 ,5 0 0
loss; in th e la t e r case, U n i t e d S ta te s v. W i l l o w R iv e r Power C o .,
3 2 4 U . S . 4 9 9 ( 1 9 4 5 ) , r a i s i n g th e w a t e r le v e l r e d u c e d b y s o m e th re e
fe e t th e o p e r a t i n g h e a d o f a h y d r o e l e c t r i c p l a n t , r e s u l t i n g in a p a r t ia l
loss o f g e n e r a t i n g cap acity w hose va lu e was $ 2 5 ,0 0 0 / D e sp ite the
s e e m in g s i m il a r it y o f th e cases, th e S u p r e m e C o u r t a w a r d e d $ 1 , 5 0 0
to th e c l a i m a n t in C ress, b u t d e n i e d $ 2 5 , 0 0 0 d a m a g e s to th e e le c t r ic
c o m p a n y . M r . J u s t i c e J a c k s o n , w r i t i n g fo r th e C o u r t in th e s e c o n d
case, e m p h a tic a lly den ied th e apparent in c o n s is t e n c y , r e s t in g his
case o n a d is t in c t io n th a t seem s d e e p l y p r o b l e m a t i c f r o m a S c ie n tific
p o i n t o f v ie w . J a c k s o n d is t in g u is h e s Cress on th e g r o u n d th a t the
m i l l w a s lo c a te d o n a n o n - n a v i g a b l e t r i b u t a r y w h o s e h e i g h t h a d b e e n
r a is e d b y a n im p ro v e m e n t on th e m a i n stre a m , w h ile the hydro
e le c t r i c f a c i l i t y in Willow River d e p e n d e d fo r its p o w e r o n th e fa ll
o f w a te r d ire ctly in t o a navigable r iv e r . W h i l e J a c k s o n is f a c t u a l l y
c o rre c t, it is e a s y f o r th e S c ie n t is t to c o n c l u d e th a t th e d is t in c t io n
betw een n o n -n a vig a b le a n d n av igab le s tre a m s is ir r e l e v a n t to th e
p r o b l e m b e f o r e h im . A f t e r all, in b o th cases th e C o r p s o f E n g i n e e r s ’
a c t io n s w e r e i n t e n d e d to f u r t h e r the s ta te ’s in te r e s t in n a v i g a t i o n ; in
b o t h cases, this p r o - n a v i g a t i o n d e c is io n w o u l d p r e d i c t a b l y i n j u r e the
in te r e s ts o f r i p a r i a n users o f w a t e r p o w e r . W h y s h o u l d th e r e d i s t r i b u
tio n o f p r o p e r t y r ig h t s b e d e t e r m i n e d b y th e h a p p e n s t a n c e o f th e
d a m ’s l o c a ti o n in th e r i v e r system ?
Ju stice J a c k s o n ’s respon se c o n s t it u t e s one of th e m ore self-
c o n s c io u s exp ressions of th e O rd in a ry O b s e r v e r ’s approach to
t a k in g s issues:
In general n o n -n a vig a b le stre a m s w e r e sm a ll. . . . T h e y w ere

s h a llo w , c o u l d b e f o r d e d a n d w e r e n o g r e a t o b s t a c l e to t illa g e o r
p a s t u r a g e o n t w o sides o f th e s tr e a m as a s in g le o p e r a t i o n . S u c h
stream s, lik e th e la n d s , w e r e fen ce d in, a n d w h i l e th e w a t e r s
(
m i g h t s h o w r e s e n t m e n t b y c a r r y i n g a w a y a f e w s p a n s o f fe n c e
in the the riparian owner's rights in such streams were
s p r in g ,
acknowledged by the custom of the countryside as well as
recognized by the law. 3 2 4 U . S . 4 9 9 , 5 0 5 ( e m p h a s is a d d e d ).
To p u t th e p o i n t in o u r term s, n o n - n a v i g a b l e stre a m s w e r e so cial

pro perty— L a y m a n co u ld p o in t to a p a t t e r n of co n d u ct a cco rd in g
to w h i c h w e ll-s o c ia liz e d p e o p l e w o u l d , e x c e p t in e x t r a o r d i n a r y c i r
c u m s ta n c e s , ask h is p e r m is s io n b e f o r e u s i n g h is s tr e a m ju s t as th e y
NOTES TO PAGE 12 $ 241
w o u l d b e f o r e u s in g his la n d . ( N o t e to l e g a l sp ec ia lists: n e it h e r Cress

n o r W illow River tries to d e a l w i t h the s p e c ia l p r o b le m s th a t arise
under the d is t in c t iv e “ a p p ro p ria tio n ” system of w ater r ig h t s in
s e v e n te e n w e s te r n states.) In c o n tr a s t, a claim of so cial property
c a n n o t b e m a d e w it h r e g a r d to n a v i g a b l e r iv e r s : o n these r iv e r s it is
p o s s ib le to o b s e r v e a g r o u p o f w e ll-s o c ia liz e d p e o p l e in b o a ts w h o
a r e q u i t e o b v i o u s l y u s in g the r i v e r fo r n o e x c e p t i o n a l p u r p o s e a n d
w h o n e v e rth e le s s a re n o t a s k i n g L a y m a n ’ s p e r m is s io n b e fo r e d o i n g
so. A s in th e c o n v e r s a t io n a b o u t a ir r ig h ts h y p o t h e s iz e d in th e tex t,
how can a stretch of n a v ig a b le r iv e r be L a y m a n ’s th in g if w ell-
so c ia liz e d p e o p l e a re n o t a s k i n g his p e r m is s io n b e f o r e u s in g it?
Now, Laym an m ay seek to parry this e m b a r r a s s in g fa ct by in
vo k in g a l a w y e r ’ s sp e c ia list o p in io n to support h is c l a im to the'
stre a m . F o r e x a m p l e , h e m a y r e p o r t th a t his l a w y e r s h a v e a ss u red
h i m th a t the b o a ts a re m e r e l y e x e r c i s i n g a d o m i n a n t n a v i g a t i o n e ase
m e n t , that le g a l title r e m a in s in h im and th a t h e is t h e r e fo r e e n
title d to insist th a t th e r i v e r n o t b e ra is e d b e y o n d its “ n a t u r a l ” level.
B u t in a s s e r tin g this c l a i m Laym an is c l a i m i n g m e r e l y le g a l p r o p
erty, n o t so cial p r o p e r t y . O r , in J u s t i c e J a c k s o n 's w o rd s , it is “ ir r e le
v a n t w h e t h e r the sh o re o w n e r d id o r d id n o t h a v e a t e c h n ic a l title
to the bed of th e [n avigab le] riv e r.” Q u o tin g p revio u s ju d icia l
a u t h o r i t y , J a c k s o n d e c l a r e d th a t r e g a rd le s s o f le g a l title, “ I n n e i t h e r
e v e n t c a n th e r e b e said to a rise a n y o w n e r s h i p o f the r iv e r . O w n e r
s h ip o f a p r i v a t e s tr e a m w h o l l y u p o n the la n d s o f a n i n d i v i d u a l is
c o n c e iv a b l e , b u t th a t the r u n n i n g w a t e r in a g r e a t n a v i g a b l e stre a m
is c a p a b l e o f p r iv a t e o w n e r s h i p is i n c o n c e i v a b l e . ” I d . at 5 0 8 - 9 .
To whom is su c h a th in g in co n ceiv a b le? C e rta in ly not to the
S c ie n t ific P o l ic y m a k e r , w h o c a n r e a d i l y e x p l o r e the c o n s e q u e n c e s o f
p r i v a t i z i n g a n a v i g a b l e s tre a m , a n d m a y in fa c t c o n c l u d e th a t p r i v a t e
ow n ersh ip is s o m e tim e s su p erior to p u b lic. C f. J. W. M illim a n ,
“ W a t e r L a w a n d P rivate D ecisio n m a k in g : A C r i t i q u e , ” 2 / . Law &
Econ. 4 1 ( 1 9 5 9 ) . S u c h a c l a i m is o n l y i n c o n c e i v a b l e to a L a y m a n , w h o
is i n c a p a b l e o f e v a l u a t i n g it w i t h o u t e x p e r t assistance. I t fo llo w s,
th e n , th a t w h i l e Cress i n v o l v e d the t a k i n g o f so cial p r o p e r t y , W illow
R iver o n l y i n v o l v e d th e ta k in g of legal p ro p e rty — w hose status,
fo r re a s o n s e x p l o r e d in d e ta il la te r, at p p . 157-6 3 in fr a , is m u c h
m o r e p r o b l e m a t i c fo r the O r d i n a r y j u d g e .
24 . A^ s t r ik i n g e x a m p l e o f the n n ^ r t a in sta tu s o f f u t u r e in terests
as le g a l p r o p e r t y is p r e s e n t e d b y r e c e n t c h a n g e s in th e r u le a g a m sT
p e r p e t uities. C o u r t s in s e v e r a l j u r i s d i c t i o n s h a v e begun to u p h o l d " "
o t h e r w is e v a l i d w il l s a n d trusts th a t v i o l a t e th e ru le . S u c h d e c is io n s
a r e so m e t i m e s ju s t if ie d h y thp “ w a ir a n d see” d o c t r i n e , a c c o r d i n g to
w h ich th e c o u r t c o n s id e r s e v e n t s o c c u r r i n g a f t e r i n c e p t i o n of the
i n s t r u m e n t a n d w h i c h a r e r e l e v a n t to th e v e s t i n g o f a f u t u r e in te rest.
P h e l p s v. S h r o p s h i r e , 2 5 4 M is s . 7 7 7 , 1 8 3 . S o . 2 d 1 5 8 ( 1 9 6 6 ) ; F ir s t P o r t
l a n d N a t n ’l B a n k v. R o d r i q u e , 157 M e. 277, 172 A . 2d 10 7 (1961);
M e r c h a n t s N a t n ’l B a n k v. C u r t is , 9 8 N . H . 2 2 5 , 9 7 A . 2 d 2 0 7 ( 1 9 5 3 ) ;
Sears v. C o o lid g e, 329 M ass. 340, 108 N .E .2 d 563 (1952). O th er
d e c is io n s a r e r e a c h e d u n d e r t h e “ c y p r e s ” d o c t r i n e , w h i c h p e r m it s
r e f o r m a t i o n o f th e i n s t r u m e n t to c o n f o r m to th e r u l e a g a i n s t p e r
p e t u it ie s . S e e I n re K e l l y ’s E s t a t e , 1 9 3 S o . 2 d 5 7 5 (M is s . 1 9 6 7 ) ; C a r t e r
v. B e r r y , 2 4 3 M is s. 3 5 6 , 1 4 0 S o . 2 d 8 4 3 ( 1 9 6 2 ) . T h e sa m e re s u lts h a v e
b e e n r e a c h e d b y sta tu te . E . g ., 2 0 P a . C . S . A . § 6 1 0 4 ( 1 9 7 5 ) ; K y . I T S . A .
§381.216 ( 1 9 6 3 ) . T h e s e m o d if ic a t i o n s e x t i n g u i s h f u t u r e in te re sts o f
th o se w h o w o u l d b e n e fit if th e in s t r u m e n t s w e r e h e l d in v a l i d . A n d
y e t th e c o u r ts n e v e r c o n s id e r , let a l o n e r e je c t , th e c l a i m th a t the
p r o p e r t y o f tho se h o l d i n g these f u t u r e in te re sts h a s b e e n ta k e n .
2 5 . T r a d i t i o n a l l y , th e fa c t th a t a g o v e r n m e n t a l se iz u re m i g h t b e
t e m p o r a r y d i d n o t a l t e r th e fa c t th a t a t a k i n g h a d o c c u r r e d r e q u i r i n g
c o m p e n s a t i o n . T h u s , the fa c t th a t L a y m a n ’s c a r m i g h t b e r e t u r n e d
from M o n tan a one day w o u ld not be co n stitu tio n a lly relevan t.
B e e c h F o r e s t H il ls , I n c . v. B o r o u g h o f M o r r i s P la in s , 1 2 7 N . J . S u p e r .
574, 318 A .2 d 4 3 5 (1974); L o m a r c h C o r p . v. M a y o r o f E n g l e w o o d ,
51 N .J. 10 8 , 237 A . 2d 881 (1968); M i l l e r v. C i t y o f B e a v e r F a lls ,
3 6 8 P a . 1 8 9 , 8 2 A . 2 d 3 4 ( 1 9 5 1 ) . R e c e n t l y , h o w e v e r , th e r e h a v e b e e n
s t r o n g in d i c a t i o n s o f a d e v e l o p i n g S c ie n tific P o l i c y m a k i n g a t t it u d e
t o w a r d t e m p o r a r y t a k i n g cases w h i c h q u e s t io n th e c o n v e n t i o n a l d o c
trin e . S e e G o l d e n v . P l a n n i n g B o a r d o f T o w n o f R a m a p o , 3 0 N . Y . 2 d
3 5 9 , 334 N . Y . S . 2 d 138, 285 N .E .2 d 291 ( 1 9 7 2 ) , a p p e a l d is m iss e d 4 0 9
U .S . 10 0 3 (19 7 2 ) , w h ich u p h e ld an o rd in a n ce fo rb id d in g d e ve lo p m e n t
o f r e s id e n t i a l l a n d f o r p e r io d s o f u p to e ig h t e e n ye a rs; Steel H ill
D e v e l o p m e n t , I n c . v. T o w n o f S a n b o r n t o n , 4 6 9 F . 2 d 9 5 6 ( 1 9 7 2 ) , in
w h i c h th e c o u r t a p p r o v e d se ve re z o n i n g r e s t r ic t io n s as “ a l e g i t im a t e
stop -gap m easure” on c o n d itio n t h a t th e tow n un dertake “ a pro
fe s s io n a l a n d s c ie n tific s t u d y ” (!) w i t h a v i e w to i n s t i t u t i n g a c o m p r e
h en sive d e v e lo p m e n t p lan .
26 . T h e go ve rn m e n t m ay acq u ire p o ssessio n in s e v e r a l d iffe r e n t
w a y s . M o s t f r e q u e n t l y it p e r f o r m s so m e official act, s u c h as the in s ti
t u t i o n o f c o n d e m n a t i o n p r o c e e d in g s , a n d p h y s i c a l l y e je c ts the o w n e r .
See, e.g., B e r m a n v . P a r k e r , 3 4 8 U . S . 2 6 ( 1 9 5 4 ) ; U n i t e d S ta te s e x rel.
TVA v . W e lc h , 3 27 U .S . 5 4 6 (1 9 4 6 ). B u t i t is n o t a lw a y s th e case
t h a t th e o w n e r is e je c te d — U n i t e d S ta te s v . P e w e e C o a l C o ., I n c ., 341
U .S . 114 (1 9 5 1 ); K i m b a l l L a u n d r y C o . v. U n i t e d S ta te s, 3 3 8 U .S . 1
( 19 4 9 ); n o r t h a t a n o f f ic ia l a c t is p e r f o r m e d — E y h e r a b id e v . U n i t e d
S ta te s , 34 5 F .2 d 5 6 5 (1 9 6 5 ). A l l t h a t is r e q u ir e d is t h a t a s ta te r e p r e
s e n ta tiv e e f f e c t iv e ly a s su m e th e o w n e r ’ s r i g h t to c o n t r o l th e use o f
th e p r o p e r ty : t h is c o u ld h a p p e n , f o r e x a m p le , s im p ly b y r e q u i r i n g
th e o w n e r to o b t a in o ffic ia l p e r m is s io n b e fo r e m a k in g any use o f h is
t h in g .
27. V i lla g e o f E u c lid v. A m b l e r R e a lt y C o ., n . 8 s u p ra , w h e r e a
75% d i m i n u t i o n o f v a lu e w a s u p h e ld . T h e s o -c a lle d “ d i m i n u t i o n o f
v a lu e ” te s t a n d c r it ic is m s o f i t a re d is c u s s e d a t p p . 1 4 2 -4 5 , 2 5 3 -5 5
in f r a .
28. See p p . 70, 8 6 s u p r a .
29. F o r e x a m p le , th e S c ie n t if ic U t i l i t a r i a n w ill a tte n d to U n c e r
ta in ty and C it iz e n D is a f f e c t io n co sts and o th e r fa c to rs , such as
i n s t i t u t i o n a l s e lf- a g g r a n d iz e m e n t, in v o lv e d in th e v a r io u s fo r m s of
U tilita r ia n j u d i c i a l in n o v a t i o n . T h e S c ie n t if ic K a n t ia n w i l l c o n c e r n
h im s e lf w i t h th e r e l a t i o n b e tw e e n s e ttle m e n t co sts a n d n e t b e n e fits ,
as w e l l as th o s e in n o v a t iv e a r g u m e n ts h e c o n s id e r s c o n s is te n t w i t h
h is r o le . See c h a p s . 3 a n d 4 s u p ra .
30. I t s h o u ld b e e m p h a s iz e d t h a t t h r o u g h o u t t h is s e c tio n w e a re
d e a lin g o n ly w ith th e c o n d it io n s u n d e r w h ic h a p r im a fa c ie case
can b e m a d e o u t u n d e r e x is t in g la w . E v e n w h e re th e r e is a g o o d
p r im a fa c ie case, i t is s t i l l p o s s ib le f o r th e c o u r t to d e n y c o m p e n s a
t io n o n th e g r o u n d t h a t th e t a k i n g w a s n e c e s s a ry to p r e v e n t L a y m a n
fro m e n g a g in g in c o n d u c t h e s h o u ld h a v e r e c o g n iz e d as a n tis o c ia l.
F o r e x a m p le , i f o u r s p e e d l i m i t la w h a d r e d u c e d th e v a lu e o f L a y
m a n ’ s c a rs to z e ro r a t h e r t h a n $ 3 0 0 0 , th e r e c o u ld b e n o d o u b t , a c
c o r d in g to th e d i m i n u t i o n o f v a lu e te s t d is c u s s e d a t p p . 1 4 1 -4 5 in f r a ,
t h a t th e c a rs h a d been ta k e n . B u t th e c o u r t m i g h t s t i l l r e fu s e to
a w a rd p a ym en t if it fo u n d th a t d r iv in g a t m o re th a n tw e n ty - fiv e
m ile s a n h o u r d u r in g a f u e l c ris is w o u ld b e r e c o g n iz e d as u n d u l y
h a r m f u l b y a w e ll- s o c ia liz e d i n d i v i d u a l i n o u r s o c ie ty . S u c h a f i n d i n g
w o u ld , o f c o u rs e , b e v e r y d u b io u s , t h o u g h p e r h a p s a n e x c e e d in g ly
d e f e r e n t ia l O b s e r v e r w o u ld f in d s u ffic ie n t b a s is i n s o c ia l p r a c tic e to
u p h o ld th e le g is la t u r e ’ s t a k i n g as c a p a b le o f O r d i n a r y j u s t if ic a t io n .
T h i s a s p e c t o f th e t a k i n g p r o b le m is d is c u s s e d a t le n g t h a t p p . 1 5 0 -5 6
in f r a .
31 . T h e O r d i n a r y O b s e r v e r fin d s th e d i s t i n c t i o n b e tw e e n “ r e g u la t
in g ” and “ ta k in g ” p ro p e rty e n tir e ly c le a r in p r in c ip le . For h im ,

p r o p e r t y t a l k is a b o u t r e la t io n s b e tw e e n p e o p le a n d th in g s . I f L a y
m a n o w n s a p a r t i c u l a r t h in g , t h e n h e s ta n d s i n a d is t in c t iv e r e l a t i o n
t o t h a t t h in g , a n d a l l o t h e r m e m b e r s o f th e c o m m u n it y s ta n d i n a
d i f f e r e n t d is t i n c t i v e r e la tio n to it. G o v e r n m e n t a c tio n s ( r e s t r ic t in g
th e u se o f th in g s ) t h a t d e s tr o y th e s e r e la t io n s a re ta k in g s ; a c tio n s t h a t
le a v e th e m i n t a c t a re r e g u la t io n s . If, a f t e r a g o v e r n m e n t a l a c t io n
r e s t r i c t i n g L a y m a n ’s use o f o n e o f h is th in g s , i t r e m a in s t r u e t h a t h e
c a n use th e t h i n g i n lo ts m o r e w a y s t h a n o th e r s c a n , a n d o th e r s c a n
n o t use i t w i t h o u t h is p e r m is s io n e x c e p t in s p e c ia l c ir c u m s ta n c e s ,
t h e n th e use o f th e t h i n g h a s b e e n r e g u la te d . I f n o t , th e t h i n g h a s
b e e n ta k e n .
B u t f o r t h e S c ie n t if ic P o lic y m a k e r , th e d is tin c tio n b e tw e e n “ ta k
i n g ” a n d “ r e g u l a t i n g , ” in L a y m a n ’s sense o f those term s, is u n i n t e l l i
g ib le . T h i s is so b e c a u s e h e b e lie v e s (a ) t h a t “ p r o p e r t y ” r e fe r s to
b u n d le s o f r ig h t s t o use t h in g s , a n d ( b ) t h a t n o p a r t i c u l a r r i g h t o r
c o m b in a t io n of r ig h t s to use a th in g c o n s t it u t e s “ o w n e r s h ip ” of
t h a t t h in g . B e c a u s e o f h is f ir s t b e lie f , h e is le d to th in k th a t a ll
g o v e rn m e n ta l a c tio n s r e s tr ic tin g th e use of t h in g s a re b a s ic a lly
s i m i l a r i n t h a t t h e y r e m o v e o n e o r m o r e r ig h t s f r o m v a r io u s p r o p e r t y
b u n d le s . S in c e a l l s u c h a c tio n s a ffe c t th e le g a l s i t u a t io n i n th e sa m e
w a y , th e r e is n o b a s is f o r a r a d ic a l d i s t i n c t i o n b e tw e e n ta k in g s a n d
r e g u la t io n s , u n le s s a c e r t a in set o f r ig h t s c o n s t it u t e s o w n e r s h ip of
a t h in g . I f so, t h e n g o v e r n m e n t a l a c tio n s t h a t d is t u r b t h a t se t w o u ld
be ta k in g s , a n d th o s e t h a t d o n o t w o u ld b e r e g u la t io n s . B u t th a t
p o s s ib i l i t y is fo r e c lo s e d b y th e s e c o n d b e lie f .
T h is is n o t to sa y t h a t th e S c ie n t if ic P o lic y m a k e r a v o id s u s in g
th e te r m s “ ta k in g ” and “ r e g u la tio n .” G o v e rn m e n ta l a c tio n s th a t
in c u r c o s ts th a t c a ll fo r c o m p e n s a tio n a c c o r d in g to h is C o m p re
h e n s iv e V ie w a re ta k in g s , a n d th o s e t h a t d o n o t a re r e g u la t io n s . B u t
n o t ic e t h a t u n l i k e th e O r d i n a r y O b s e r v e r , w h o e x a c ts c o m p e n s a tio n
b e c a u s e t h e a c t io n w o u l d b e c a lle d a “ t a k i n g ” in o r d in a r y lif e , th e
S c ie n t if ic P o lic y m a k e r c a lls th e a c t io n a “ t a k i n g ” b e c a u s e c o m p e n s a
t i o n is r e q u ir e d b y th e C o m p r e h e n s iv e V ie w .
32. N o t e t h a t th e t e x t d o e s n o t c la im t h a t all U t i l i t a r i a n ju d g e s
w o u ld f i n d i t s im p le to c o n c lu d e t h a t i t is b e t t e r to g iv e L a y m a n a
t h o u s a n d ' d o l l a r b o n u s t h a n to s p e n d m o r e t h a n a th o u s a n d d o lla r s
in a d d e d f a c t - f in d in g costs. T h i s is so b e c a u s e a U t i l i t a r i a n is u l t i
m a t e ly c o n c e r n e d w i t h costs a n d b e n e fits m e a s u r e d i n te r m s o f i n
d i v i d u a l h a p p in e s s ( o r u t i l i t y ) , r a t h e r t h a n d o lla r s . H e n c e , b e fo r e h e
NOTES TO PAGES 1 2 9 -3 1 245
w ill r e fu s e to lo o k beyond th e n o m in a l d o ll a r sum s to u ltim a te

u t i l i t i e s , a ju d g e m u s t b e lie v e t h a t d o lla r s a re g e n e r a lly d i s t r i b u t e d
in o u r s o c ie ty in a u t i l i t y - m a x i m i z i n g w a y . T h is , o f c o u rs e , is p r e
c is e ly th e a p p ro a c h of a U tilita r ia n ju d g e w hose a ttitu d e to th e
d i s t r i b u t i o n o f p r o p e r t y w e h a v e c a lle d co n serva tive. See p p . 37, 4 4 - 9
s u p ra . I t is p o s s ib le to im a g in e , h o w e v e r , t h a t s o m e refo rm ist ju d g e s
w o u ld b e w i l l i n g to p a y m o r e th a n a th o u s a n d d o lla r s in f a c t - f in d in g
co sts i f th e d o lla r s w e re ta k e n o u t o f th e p o c k e ts o f p e o p le w ith
lo w m a r g in a l u tility fo r in c o m e , w h ile th e e x tra c o m p e n s a tio n
m o n e y w a s ta k e n f r o m a f u n d d r a w n f r o m th o s e w i t h h ig h m a r g in a l
u tilitie s . S in c e b o th f a c t - f in d in g co sts and c o m p e n s a tio n fu n d s
u s u a lly c o m e o u t o f g e n e r a l a p p r o p r ia t io n s , h o w e v e r , t h is r e f o r m is t
p o s s ib ilit y m a y s a fe ly b e k e p t in a f o o t n o t e .
33. N o r m a lly , w hen o n e o f L a y m a n ’ s t h in g s is ta k e n , h e is e n
t i t l e d to c o m p e n s a tio n o n ly f o r th e v a lu e o f t h a t t h i n g a n d n o t f o r
d a m a g e s to o t h e r t h in g s o f h is . S h a r p v . U n i t e d S ta te s, 191 U . S. 341
(1 9 0 3 ). I n cases w h e r e o n ly a p a r t o f L a y m a n ’ s t h i n g h a s b e e n ta k e n ,
h o w e v e r, "Kc T s e n t i t i e d to c o m p e n s a tio n T o r se veT ance a n d c o rrs r^
q u e n t ia l dam ages to th e r e m a in d e r T T J n iT g t f " St a te s r r ~ M iH e r r ~3r7
U .S . 3 6 9 (1 9 4 3 ); S h a r p v . U n i t e d S ta te s , s u p r a . B u t g r e a t r e s t r ic t io n s
a re p la c e d o n L a y m a n ’ s r i g h t to r e c o v e r f o r su cT T ^d an ra g e sr A b s e n t
s p e c ia l c ir c u m s ta n c e s , i t is l i m i t e d to cases w F e r e th e p r o p e r t y t a k e n
a n d th e r e m a in d e r p r e v io u s ly fo r m e d a s in g le p h y s ic a l u n i t . U n i t e d
S ta te s v. N T ffle r, s u p r a ; S h a rp v. U n it e d S ta te s, s u p ra . T V h e n it is
p o s s ib le to s e p a ra te d a m a g e s to th e r e m a in d e r d u e to use o f th e
p ro p e rty ta k e n fro m dam ages due to th e use of p ro p e rty ta k e n
fro m o t h e r o w n e r s f o r th e sa m e p u r p o s e , o n ly th e f o r m e r is c o m
p e n s a b le . C a m p b e ll v. U n i t e d S ta te s , 2 6 6 U .S . 3 6 8 (1 9 2 4 ); S t. R e g is
P a p e r C o . v. U n it e d S ta te s , 3 13 F .2 d 45 (1 9 6 2 ). L a ym an has th e
b u rd e n o f p ro o f and is n m l ^ r a x h it y rp m i t i g a te dam ages. j\ ls o ,
b e n e fits r e s u lt i n g f r o m th e use o f th e ta k e n la n d a re s e t~ o fT a g a in s t
d a m a g e s . U n i t e d S t a t e s v . M i l l e r , s u p r a ; C a m p b e ll v . U n i t e d S ta te C
s u p r a ; U n i t e d S ta te s v . W e lc h , 217 U .S . 33 3 (1 9 1 0 ); S h a r p v . U n i t e d
S ta te s, s u p r a . See g e n e r a lly P h ilip N ic h o ls , The Law o f E m in e n t
D o m a in v o l. 4 A , c h a p . 14 (1 9 7 5 ).
34. M a n y s ta te s ta tu te s , u s u a lly p a sse d i n th e n in e t e e n t h c e n tu r y ,
d e le g a te th e p o w e r o f e m in e n t d o m a in to p r iv a t e c o r p o r a t io n s s u c h
as r a ilr o a d s o r p u b l i c u t i l i t i e s . See g e n e r a lly N ic h o ls , The Law of
E m in e n t D o m a in v o l. 1, § 3.21 [2 ].
35. R e c e n t ly t w o S c ie n t if ic P o lic y m a k e r s o f a U t i l i t a r i a n ty p e h a v e
s o u g h t to ju s tify a r u le w h ic h is o n ly s u p e r f ic ia lly s im ila r to th e

O r d i n a r y o n e c o n s id e r e d i n th e t e x t . I n a n i m p o r t a n t essay, W i l l i a m
B a x te r a n d L illia n A ltr e e a d v o c a te a s o lu t io n to th e a i r p o r t n o is e
p r o b le m w h ic h , r o u g h l y s p e a k in g , r e q u ir e s g o v e r n m e n t a lly o p e r a te d
a ir p o r t s t o p a y c o m p e n s a t io n “ f o r a l l e x t e r n a l co sts i m p o s e d o n la n d
uses d e v e lo p e d b e fo re th e a i r p o r t w a s c o n s tr u c te d * * b u t not a fte r .
See t h e i r “ L e g a l A s p e c ts o f A i r p o r t N o is e , ” 15 J . o f L a w if E co ri. 1,
4 (1 9 7 2 ). W h i l e t h is f o r m u l a c o u ld p e r h a p s b e u n d e r s t o o d to m e a n
t h a t o n ly Laym an, and n o t S p e c u la to r , w o u l d g e t p a id , a c a re fu l
r e a d in g o f th e a r t ic le m a k e s i t c le a r t h a t th e y w o u l d a ls o p a y S p e c u
l a t o r t o c o m p e n s a te h i m f o r th e f a c t t h a t “ th e la n d h a s b e e n m a d e
less s u it a b le f o r uses t h a t w e re s e n s itiv e to th e n o is e le v e l o f a i r
p la n e s .” I d . a t 5.
U n fo r tu n a te ly , w h ile th e B a x t e r - A lt r e e a p p ro a c h s u p p o rts my
c la im a b o u t th e u n c e r t a in P o lic y m a k in g ju s t i f i c a t i o n fo r a lin e be
tw e e n S p e c u la t o r a n d L a y m a n , I c a n n o t r e t u r n th e c o m p lim e n t a n d
g iv e c o m p le t e e n d o r s e m e n t to t h e i r a p p r o a c h . A t le a s t w h e n v ie w e d
f r o m th e U t i l i t a r i a n p o i n t o f v ie w to w h ic h th e y a re a t t r a c t e d , t h e i r
p r o p o s a l seem s u n d u l y g e n e r o u s t o th e p r o p e r t y o w n e r s s u r r o u n d in g
t h e n e w a i r p o r t . E v e n i f , as th e y a s s u m e w i t h o u t d is c u s s io n , a ju d g e
o u g h t t o a d o p t a n a c t iv is t r o le p r e m is e a n d ta k e i n t o a c c o u n t in s ti
t u t i o n a l s e lf- a g g r a n d iz e m e n t w h e n d e a lin g w ith g o v e rn m e n t-o w n e d
a ir p o r t s , th e B a x t e r - A lt r e e r u l e w o u ld b e ju s t i f i e d o n ly i f th e a i r p o r t
w e re c le a r ly th e c h e a p e s t c o s t- a v o id e r so f a r as a ll th e co sts o f th e
a ir p o r t- la n d o w n e r in te r a c tio n w e re c o n c e rn e d . W h ile th is m ay b e
tru e in t h e a i r p o r t case o f t e n e n o u g h t o j u s t i f y a p e r se r u l e o f th e
ty p e p r o p o s e d , th e B a x t e r - A lt r e e a r t ic le — t h o u g h l e n g t h y a n d s ig n if i
c a n t i n o t h e r re s p e c ts — d o e s n o t s y s te m a tic a lly e x p lo r e th e e m p ir ic a l
d im e n s io n s o f th e is s u e w i t h s o p h is t ic a t e d g u id e lin e s o f th e s o r t t o b e
fo u n d in G u id o C a la b r e s i, “ T r a n s a c t io n C o sts, R e s o u rc e A l l o c a t i o n
and L ia b ility R u le s — A C o m m e n t,” 11 / . Law if E c o n . 67 (1 9 6 8 ),
and R o b e rt C. E llic k s o n , “ A lt e r n a t iv e s to Z o n in g : C o v e n a n ts ,
N u is a n c e R u le s , a n d F in e s as L a n d U s e C o n t r o ls , ” 40 U . C h i. L .
R e v . 6 8 1 , 7 2 4 - 2 8 (1 9 7 3 ). W h i l e t h is m a y b e a r e m e d ia b le d e fe c t so f a r
as th e p r o b le m o f a i r p o r t n o is e is c o n c e r n e d , i t is a f a r m o r e fo r
m id a b le d e fic ie n c y i n th e p r o p o s a l, a d v a n c e d b y P r o fe s s o r L a w r e n c e
B e rg e r, th a t th e B a x t e r - A lt r e e a p p ro a c h b e g e n e r a liz e d to fo r m a
P o lic y m a k in g fo r m u la tio n o f t a k in g s la w th a t a p p r o p r ia te ly m ix e s
e ffic ie n c y and ju s t ic e c o n c e rn s . See L a w re n c e B e rg e r, “A P o lic y
A n a ly s is o f th e T a k i n g P r o b le m , ” 49 N .Y .U .L . R e v . 165, 1 9 5 -2 0 6
(>9 7 4 )-
NOTES TO PAGES 1 3 1—33 247
36. Z o n in g r e s t r ic t io n s o f th e s o r t im p o s e d o n S p e c u la to r , w h ic h
fo r b id o n e fro m m a k in g c e r t a in fu tu re uses o f o n e ’ s la n d , w e re u p
h e ld b y th e S u p r e m e C o u r t i n E u c lid v . A m b le r , n . 8 s u p ra . T h e
C o u rt n e v e r a d d re s s e d th e issu e p r e s e n te d by L a y m a n ’ s case: th e
p r o h i b i t i o n o f e x is tin g uses. B u t i t w a s e a r ly a n d g e n e r a lly a c c e p te d
t h a t s u c h uses, i f o th e r w is e l a w f u l , c o u ld n o t b e p r o h i b i t e d b y z o n
in g o r d in a n c e s w i t h o u t c o m p e n s a tio n . See A r d e n H . R a th k o p f, T h e
L a w o f Z o n in g a n d P la n n in g , 3 r d e d ., v o l. 2, c h a p . 58.
T o q u a l i f y as a p r o t e c t e d n o n c o n f o r m in g use, i t is o n ly n e ce ssa ry
t h a t th e use e x is t o n th e e ffe c tiv e d a te of th e o r d in a n c e and be
s u b s t a n t ia l. M o r r is C o u n ty Land Im p ro v e m e n t C o. v. P a r s ip p a n y -
T r o y H i l l s T o w n s h i p , 4 0 N .J . 5 3 9 , 5 5 0 , 193 A . 2 d 2 3 2, 2 3 8 - 3 9 (1 9 6 3 );
c o m p a r e P e o p le v . M i l l e r , 304 N .Y . 105, 106 N .E . 2 d 34 (1 9 5 2 ), w i t h
T o w n o f S o m e rs v . C o m a r c o , 3 0 8 N . Y . 5 3 7 , 127 N .E . 2 d 327 (1 9 5 5 ).
See a ls o n . 22 s u p r a a n d n . 45 i n f r a . D u r i n g th e p a s t t w e n t y ye a rs,
h o w e v e r , th e c o n s t i t u t i o n a l r ig h t s o f th e n o n c o n f o r m in g user have
s u ffe r e d a c o n s id e r a b le e r o s io n , p a r tic u la r ly as a r e s u lt of th e
‘ 'a m o r t i z a t i o n " d o c t r in e d is c u s s e d a t n . 41 in f r a . N o n e th e le s s , i t r e
m a in s t r u e t h a t in tn e case h y p o t h e s iz e d in th e t e x t , w h e r e L a y m a n ’ s
use is s u b je c te d to im m e d ia t e t e r m i n a t i o n , h is c la im to com pensa
tio n h a s b e e n q u e s t io n e d b y n o c o u r t . W e s h a ll t h e r e f o r e c o n s id e r
o n ly t h is case i n our te x tu a l c o m p a r is o n of th e S c ie n t if ic P o lic y
m a k e r a n d O r d i n a r y O b s e r v e r , r e s e r v in g th e d o c t r i n a l c o m p le x it ie s
f o r t r e a t m e n t a t n . 41.
3 7 . N o t " t h a t b u n d le o f r ig h t s o v e r th e r e is m in e . ’ ’
38 . See p p . 98 , 1 0 1 -0 2 s u p r a .
39 . See p p . 1 3 6 -4 5 i n f r a .
40. T h is is a n im a g in a r y ju d ic ia l u tte r a n c e . For re a l ones, see
V a r te la s v . W a t e r R e s o u rc e s C o m ’ n ., 146 C o n n . 6 5 0 , 6 5 8 , 153 A .2 d
8 2 2 , 8 2 6 (1 9 5 9 ); M a d is v . H ig g in s o n , 164 C o lo . 3 2 0, 32 3, 4 3 4 P .2 d
7 0 5 , 7 0 6 (1 9 6 7 ); W r i g h t v . C i t y o f L i t t l e t o n , 4 8 3 P .2 d 9 5 3 , 9 5 6 ( C o lo .
1 9 7 1 ); In re S p r in g V a lle y D e v e lo p m e n t , 300 A . 2d 7 3 6, 7 4 9 (M e .
i9 7 3 ) ; V i l l a g e H o u s e v. T o w n of Loudon, 114 N . H . 76, 3 14 A .2 d
635- 637 (>974)-

41. W h ile th e t e x t h a s o n ly c o n s id e r e d th e c o n c e p tu a l fo u n d a
t io n s of th e la w of n o n c o n f o r m in g use, th e d is tin c tio n b e tw e e n
S c ie n t if ic P o lic y m a k e r and O r d in a r y O b s e rv e r a ls o e n lig h t e n s th e
f in e r p o in t s o f d o c t r in e in th is c o r n e r o f t a k in g s la w . T h u s , w h ile
th e im m e d ia t e te r m in a tio n of H a m b u rg e r H eaven w ill ra is e th e
m o s t s e rio u s c o n s t i t u t i o n a l p r o b le m s , i t is w e l l e s ta b lis h e d t h a t th e
s ta te m a y — w i t h o u t c o m p e n s a tio n — f o r b i d Laym an fro m e x p a n d in g
H a m b u rg e r H e a v e n in a z o n e w h e r e it s o p e r a t io n is g e n e r a lly p r o
h i b i t e d . C h ils o n v . B o a r d o f A p p e a ls o f A t t l e b o r o , 344 M ass. 406,
182 N .E .2 d 5 3 5 (1 9 6 2 ). F r o m a n O r d i n a r y O b s e r v e r ’ s p o i n t o f v ie w ,
o f c o u rs e , th is d i s t i n c t i o n b e tw e e n th e r i g h t t o m a i n t a in th e o rig in a l
H a m b u r g e r H e a v e n i n o p e r a t in g c o n d i t io n a n d th e r i g h t t o e x p a n d
it m akes p e r f e c t ly good sense— d e s p ite th e fa c t th a t Laym an has
b e e n d e n ie d t h is s e c o n d r i g h t , it s till is c o r r e c t t o say t h a t H am
b u rg e r H eaven r e m a in s L a y m a n ’s t h in g , th e r e b y e s t a b lis h in g th a t
o n ly a r e g u la t io n , r a t h e r t h a n a p r i m a fa c ie t a k in g , h a s o c c u r r e d .
M o r e d i f f i c u l t f o r th e O r d i n a r y O b s e r v e r t o c o n d o n e is a c o m m o n
z o n in g p r o v is io n fo r b id d in g n o n c o n f o r m i n g u s e rs t o e ngage in th e
e x te n s iv e r e p a i r o r a l t e r a t io n o f t h e i r th in g s . W h i l e d e n y in g L a y m a n
h is r i g h t to r e n o v a t e m a y e v e n t u a lly m a k e h is n o n c o n f o r m i n g use
e c o n o m ic a lly u n ju s t if ie d , th is fa c t need not p ro v e in s u p e r a b le , at
le a s t f o r th e d e f e r e n t ia l ju d g e e a g e r to u p h o l d th e le g is la t iv e j u d g
m e n t . D e p r i v i n g L a y m a n o f t h e r i g h t t o r e n o v a te , a f t e r a ll, d o e s n o t
d e p r iv e h i m o f th e th in g t h a t w a s h is a t th e t im e th e s ta tu t e w as
e n a c te d — in d e e d , by it s v e ry te rm s , a s ta tu t e b a r r in g r e n o v a t io n
s im p ly s to p s L a y m a n f r o m p a s s in g o f f a n e w th in g f o r h is o ld o n e .
H e n c e , a “ n o n - r e n o v a t io n ” r u le e scapes th e re a c h o f th e O r d i n a r y
O b s e r v e r ’s t a k in g s c la u s e , a r e s u lt t h a t c o n f o r m s w i t h th e u n iv e r s a l
' j u d g m e n t 'o f t h e c o u r ts . See, e .g ., J o b e r t v . M o r a n t , 150 C o n n . 5 8 4 ,
192 A . 2 d 5 5 3 (1 9 6 3 ).
T h e n e x t cla ss o f cases, t h o u g h b u i l d i n g o n th e la s t, is f a r m o r e
tr o u b le s o m e . H e re , r a th e r th a n p r o s c r ib in g r e n o v a t io n and le ttin g
o b s o le s c e n c e ta k e it s c o u rs e , th e s ta te passes a g « y ip p L a y m a n
a fe w y e a rs o f g ra c e , a f t e r w h ic h h e m u s t e n d H a m b u r g e r H e a v e n ’s
o p e r a t io n b y co m m a n d o f la w . W h i l e , as w e h a v e s u g g e s te d , o r d e r in g
th e im m e d ia t e te r m in a tio n o f a n o n c o n fo r m in g use c o n s t it u t e s a
p r i m a fa c ie case o f t a k in g , d o e s t h e f a c t t h a t t e r m i n a t i o n is d e f e r r e d
fo r a fe w y e a rs s u ffic e to p la c e th e s ta tu t e beyond th e O r d in a r y
O b s e r v e r ’ s ta k in g s cla u s e ?
P e rh a p s . A f t e r a ll, i f t h e s ta te c a n f o r b i d L a y m a n f r o m r e n o v a t in g
h is n o n c o n fo r m in g p ro p e rty , th e re b y a s s u r in g it s e v e n tu a l ob
s o le s c e n c e , can it not se t a r e a s o n a b le a m o r t iz a t io n p e r io d fo r
n o n c o n fo r m in g s t r u c tu r e s b a s e d o n th e e x p e c te d life o f th e s tr u c
t u r e w i t h o u t m a jo r re p a ir s ? A n d i f i t c a n d o t h is f o r n o n c o n f o r m in g
s tr u c tu r e s , c a n it n o t e s ta b lis h a n a lo g o u s a m o r t iz a t io n p e r io d s fo r
n o n c o n fo r m in g uses? T h i s s o r t o f r e a s o n in g , r e fle c te d in o p in io n s
l i k e t h a t o f N e w Y o r k ’ s h ig h e s t c o u r t i n H a r b is o n v . C i t y o f B u f f a lo ,
NOTES TO PAGE 133
249
4 N .Y .2 d 5 5 3 , 5 6 1 - 6 2 , 176 N .Y .S .2 c l 5 9 8 , 6 0 4 - 5 , ! 5 2 N . E . 2(1 42 , 4 6 - 4 7
(1 9 5 8 ), m a y le a d a d e fe r e n t i a l O r d i n a r y ju d g e to u p h o l d t h e a m o r t i-
z a tjo n a p p ro a c K T th o u g h ~ le s s d e f e r e n t ia l c o u r ts w i l l d is a g r e e. C i t y o f
A k r o n v . C h a p m a n , 160 O h i o S t. 3 8 2, 116 N .E .2 d . 69 7 (1 9 5 3 ).
O f c o u rs e , fr o m a S c ie n t if ic P o lic y m a k in g p o in t of v ie w , th e s e
O r d i n a r y e ffo r t s to g r o u n d a d e c is io n b y a n a lo g iz in g f r o m th e “ n o -
r e n o v a t i o n " cases p ro c e e d s f r o m p re m is e s t h a t a re p r o f o u n d l y m is
c o n c e iv e d . F o r th e re a s o n s s u g g e s te d in th e te x t, th e v e ry n o t io n
th a t n o n c o n f o r m in g uses m a rk out a s im p le c a te g o ry d e s e r v in g
s p e c ia l c o n s t i t u t i o n a l p r o t e c t io n seem s e x c e e d in g ly s u s p e c t. C onse
q u e n t ly , one s h o u ld expect a S c ie n t if ic c o u rt to seize upon th e
" a m o r tiz a tio n " concept as a n excuse fo r c u ttin g back p r o t e c t io n .
Thus, in u p h o ld in g an a m o r t iz a t io n schem e, a C a lifo r n ia c o u rt
re a s o n e d :
In e ssence th e r e is n o d is tin c tio n b e tw e e n r e q u ir in g th e d is

c o n t in u a n c e o f a n o n c o n f o r m in g use w i t h i n a re a s o n a b le p e r io d
a n d p r o v is io n s w h ic h d e n y th e r i g h t t o a d d to o r e x t e n d b u i l d
in g s d e v o te d to a n e x is t in g n o n c o n f o r m in g use, w h ic h d e n y th e
r i g h t to r e s u m e a n o n c o n f o r m in g use a f t e r a p e r io d o f n o n u s e ,
w h ic h d e n y th e r i g h t to e x t e n d o r e n la r g e a n e x is t in g n o n c o n
f o r m i n g use, w h ic h d e n y th e r i g h t to s u b s t it u t e new b u ild in g s
fo r th o s e d e v o te d to an e x is t in g n o n c o n f o r m in g u se — a l l of
w h ic h h a v e b e e n h e ld to b e v a lid e x e rc is e s o f th e p o lic e p o w e r .
. . . The d is tin c tio n b e tw e e n an o r d in a n c e r e s tr ic tin g fu tu re 1
uses a n d o n e r e q u i r i n g th e te r m in a tio n o f p r e s e n t uses w i t h i n
a r e a s o n a b le p e r io d o f t im e is m e r e ly o n e o f d e g re e , a n d c o n s t i
tu tio n a lity depends on th e r e la t iv e im p o r t a n c e to b e g iv e n to
t h e p u b l i c g a in a n d t o th e p r iv a t e loss. . . . A le g is la t iv e b o d y
m a y w e ll c o n c lu d e t h a t th e b e n e f ic ia l a ffe c t o n th e c o m m u n it y o f
th e e v e n t u a l e l i m i n a t i o n o f a l l n o n c o n f o r m i n g uses b y a re a s o n
a b le a m o r t iz a t io n p la n m o r e th a n o ffs e ts i n d i v i d u a l losses. C it y
o f L o s A n g e le s v . G a g e , 127 C a l. A p p . 2 d 4 4 2 , 4 5 9 - 6 0 , 27 4 P .2 d
34.44 ( 19 5 4 >-
T h e r e a s o n in g h e re is S c ie n tific , o f a r e s tr a in e d , v a g u e ly U t i l i t a r i a n
v a r ie t y . T h a t i t is S c ie n t if ic is s h o w n b y th e c o u r t ’ s r e fu s a l to ta k e
s e r io u s ly t h e d iffe r e n c e b e tw e e n p r e s e n t a n d f u t u r e uses o f la n d . See
n o te 22, s u p r a . T h a t i t is U t i l i t a r i a n is i l l u s t r a t e d b y th e t a l k o f b a l
a n c in g p u b l i c b e n e fits a g a in s t p r iv a t e losses. F o r s im ila r s e n tim e n ts ,
see G r a n t v. B a lt im o r e , 212 M d . 3 0 1 , 129 A . 2 d 36 3 (1 9 5 7 ). T h e i n
c r e a s in g a c c e p ta n c e o f a m o r t iz a t io n d u r in g th e p a s t t w e n t y y e a rs—
a n d - e p iir io n s s u c h as G a g e — a re s ig n s o f th e in c r e a s in g ly S c ie n t if ic
P o lic y m a k in g c h a ra c te r o f th e le g a l c u l t u re . But th e e x is te n c e of
o t h e r o p in io n s , l i k e H a r b is o n , s u p r a , i n w h ic h c o u r ts r e s o r t t o a r g u
m e n ts b y a n a lo g y to O r d in a r y p ro p e rty ta lk in o rd e r to a p p ro v e
a m o r t iz a t io n s h o w s t h e s t r o n g h o ld o f O r d in a r y O b s e r v in g o n th e
j u d i c i a l m in d .
4 2 . See, e .g ., C o m m o n w e a lt h v . K a s tn e r , 13 P a . C m w lt h . 5 2 5 , 3 2 0
A . 2 d 146 (1 9 7 4 ), c e r t. d e n . 4 1 9 U .S . 1 1 09 (1 9 7 5 ); G ib s o n 8c P e r in C o .
v . C i t y o f C i n c i n n a t i , 4 8 0 F .2 d 9 3 6 (1 9 7 3 ); C o m m o n w e a lt h v. H es-
s io n , 4 3 0 P a . 2 7 3 , 242 A . 2 d 4 3 2 (1 9 6 8 ). I n th e case h y p o th e s iz e d i n
th e te x t, th e s ta te has d o n e no m o re th a n d iv e r t tr a ff ic fro m its
a c c u s to m e d r o u t e b y a ffo r d in g it a new o n e . C ases a ris e , h o w e v e r ,
w hen th e s ta te a f f ir m a t iv e ly o b s tr u c ts L a y m a n ’ s access to H ig h w a y
O n e it s e lf . See D o u g h e r t y C o u n t y v . P y la n t , 104 G a . A p p . 4 6 8 , 122
S .E .2 d 117 (1 9 6 1 ); P e o p le v . R ic c ia r d i, 23 C a l. 2 d 3 9 0 , 144 P .2 d 7 9 9
(1 9 4 4 ). W e s h a ll d is c u s s th is f o r m o f t a k in g , i n w h ic h L a y m a n ’ s t h i n g
is r e n d e r e d useless, s u b s e q u e n tly a t p p . 1 3 6 -4 5 , a n d n . 4 8 i n f r a .
4 3 . I m a g in e n o w t h a t th e o p e n in g o f th e new In te rs ta te had so
r e d u c e d t h e t r a f f ic o n H ig h w a y O n e t h a t P r o p r ie t o r w a s o b lig e d to
g o o u t o f b u s in e s s . A t t h is p o i n t P r o p r i e t o r ’s t h i n g w o u ld h a v e b e e n
d e s tr o y e d a n d so i t w o u ld a p p e a r t h a t a p r im a fa c ie case o f t a k in g
w o u l d b e easy to e s ta b lis h . A s w e s h a ll see la t e r , h o w e v e r , a s e c o n d
c o n d i t io n m u s t b e f u l f i l l e d b e fo r e a p r im a fa c ie c la im f o r c o m p e n s a
tio n can be m a in t a in e d : P r o p r ie t o r w ill be o b lig e d to show not
o n ly t h a t h is th in g has b e en d e s tr o y e d , but th a t th e s ta te ra th e r
t h a n t h e m a r k e t m a y j u s t ly b e h e ld r e s p o n s ib le f o r t h e d e s t r u c t io n .
M o re o v e r, th e case we have h y p o t h e s iz e d — i n w h ic h th e lo ss has
b e e n v is it e d b y a r e l a t i v e l y s u b tle t o r i r r o f s ta te n ia n ip u la T io r T o f th e
e c o n o m ic e n v ir o n m e n t — is p r e c is e ly th e a re a o f g r e a te s t a m b ig u i t y in
t lie U r d in a ry t h e o r y o f s ta te r e s p o n s i b i l it y . C o n s e q u e n t ly , w e s h a ll
d e f e r f u r t h e r t r e a t m e n t o f th e issu e p o s e d b y P r o p r i e t o r ’ s b u s in e s s
f a i l u r e t o p p . 1 4 5 -5 0 a n d e s p e c ia lly n . 71.
4 4 . See, e .g ., th e cases c it e d i n n o te s 36, 4 0 , a n d 42 s u p ra .
4 5 . I t s h o u ld b e n o t e d t h a t th e r e a re cases w h ic h r e q u ir e t h a t a n
e x is t in g u se b e “ s u b s t a n t ia l” b e fo r e i t c a n o b t a i n th e p r o t e c t io n of
th e “ n o n c o n fo r m in g use” d o c t r in e . Thus, c o m p e n s a tio n has been
d e n ie d i n cases w h e r e t h e s ta te d e p r iv e d L a y m a n o f a p ig e o n lo ft
( P e o p le v . M i l l e r , 3 0 4 N . Y . 105, 106 N . E . 2 d 34 (1 9 5 2 ). I m y s e lf a m
u n s y m p a t h e t ic to h o ld in g s o f th is k i n d , w h ic h se e m e x c lu s iv e ly b a s e d
251
o n th e m a x im de m in im is n on curat lex. L i t i g a t i o n costs b e n g w h a t

th e y a re , I see n o re a s o n to b e lie v e t h a t th e p l a i n t i f f d o e s n o t p e r
c e iv e a s u b s t a n t ia l s ta k e in any la w s u it he is w i l l i n g to b r in g to
c o u r t.
46. In te r m s o f th e a n a ly s is p r e s e n te d at pp. 1 2 9 -3 0 s u p ra , c a n
th e r e be a t a k in g w h e n n e it h e r c o n d i t io n (a ) n o r ( b ) o b ta in s ?
47. T o put th e p o in t a n o th e r w ay: “An o r d in a n c e w h ic h p e r
m a n e n t ly so r e s tr ic ts th e use o f p r o p e r t y t h a t i t c a n n o t b e u s e d f o r
any re a s o n a b le p u rp o s e goes, it is p la in , beyond r e g u la t io n , and
m u s t b e r e c o g n iz e d as a t a k in g o f th e p r o p e r t y . T h e o n ly s u b s t a n t ia l
d iffe r e n c e , in such case, b e tw e e n r e s t r ic t io n and a c tu a l t a k in g is
th a t th e r e s t r ic t io n le a v e s th e owner s u b je c t to th e b u rd e n of
p a y m e n ts o f t a x a t io n , w h i l e o u t r i g h t c o n fis c a tio n w o u ld r e lie v e h im
of th a t b u rd e n .” A rv e rn e Bay C o n s t r u c t io n C o. v. T h a tc h e r, 278
N .Y . 2 2 2, 2 3 2 ; 15 N .E .2 d 5 8 7 , 591 (1 9 3 8 ).
48. I t s h o u ld be n o te d th a t th e r e a re s e v e ra l d i f f e r e n t w ays in
w h ic h th e s ta te c a n r e n d e r L a y m a n ’s t h i n g useless. F o r e x a m p le , i t
c a n a lt e r th e legal rela tio n b e tw e e n Laym an a n d h is t h in g , so t h a t
Laym an is n o lo n g e r e n t i t l e d to do a n y th in g u s e fu l w i t h it . O ur
h y p o t h e t ic a l case is a n e x a m p le : a t L im e O n e , L a y m a n h a s a r i g h t
to d r iv e and s e ll h is C a d illa c ; at T im e T h re e he does n o t. For
a c tu a l cases o f t h is s o rt, see: A M G A s s o c ia te s v . T o w n s h i p o f S p r in g -
f ie ld , 65 N .J . 101, 3 1 9 A . d 705 (1 9 7 4 ); M o r r is C o u n t y L a n d I m p r o v e
m e n t C o . v . P a r s ip a n n y - T r o y H i l l s T o w n s h ip , 4 0 N .J . 5 3 9 , 193 A . 2 d
232 (1 9 6 3 ); C ity of P la in f ie ld v. B o ro u g h of M id d le s e x , 69 N .J .
S u p e r. 136, 173 A . 2 d 78 5 (1 9 6 1 ). A s e c o n d w a y o f r e n d e r in g a t h i n g
useless is to c h a n g e th e p h y sic a l ch a ra cter o f th e p r o p e r t y so t h a t i t
n o lo n g e r se rve s a n y p u r p o s e f o r a n y o n e . See, e .g ., U n i t e d S ta te s v .
K ansas C ity L ife In s u ra n c e C o ., 339 U .S . 7 9 9 (1 9 5 0 ), i n w h ic h a
g o v e r n m e n t n a v ig a t io n p r o je c t im p a ir e d th e s u b s u rfa c e d r a in a g e o f
c l a im a n t ’ s la n d , th u s d e s t r o y in g its v a lu e f o r f a r m in g o r a n y o t h e r
p u r p o s e . Y e t a n o t h e r w a y o f r e n d e r in g p r o p e r t y useless is to c h a n g e
th e p h y s ic a l r e l a t i o n o f r e a l p r o p e r t y to a d ja c e n t la n d . T h i s p r o b le m
is p o s e d , f o r e x a m p le , w h e n th e s ta te d iv e r t s tr a ff ic f r o m H a m b u rg e r
H e a v e n b y o p e n in g a n e w h ig h w a y o r d e s tro y s o r s u b s t a n t ia lly i m
p a ir s access t o a n a d j o i n i n g s tre e t. C f. W i l l i a m B . S to e b u c k , “ T h e
P ro p e rty R i g h t o f A cce ss V e rs u s th e P o w e r o f E m i n e n t D o m a in , ”
47 T e x . L . R e v . 7 33 (1 9 6 9 ). F o r a n e v e n m o r e e x tr e m e e x a m p le , in
w h ic h Laym an is d e p r iv e d o f a l l p r a c t ic a l access to h is t h in g , see
M a c k ie v . U n i t e d S ta te s, 194 F .S u p p . 3 0 6 (1 9 6 1 ).
252 NOTES TO PAGES 1 4 1 -4 2
4 9 . I m a g in e , f o r e x a m p le , t h a t L a y m a n is lu c k y enough to own
a s e rie s o f p a in t in g s b y M o n e t d e p i c t in g th e c a t h e d r a l a t R o u e n a t
v a r io u s h o u r s o f th e d a y . L a y m a n w is h e s t o s e ll o n e o f th e p a in t in g s
but is fo r b id d e n by th e ( h y p o t h e t ic a l) A rt R e v ie w B o a rd , w h ic h
fin d s th a t th e p u b lic in t e r e s t r e q u ir e s th a t th e c o lle c t io n r e m a in
in t a c t , a n d so r e q u ir e s L a y m a n t o s e ll th e e n t ir e s e rie s o f p a in t in g s
o r n o n e a t a ll. B e fo r e a c o u r t c o u ld d e t e r m in e w h e t h e r t h is r e g u la
tio n c o n s t it u t e d a p r im a fa c ie t a k in g , a n in q u ir y o f th e m o s t d is
c r im in a t in g k in d in t o L a y m a n ’ s ta s te s w o u ld o b v io u s ly b e r e q u ir e d .
5 0 . O n e e x p e c ts th e m a r k e t v a lu e o f th e t h i n g o n ly to a p p r o a c h ,
r a t h e r t h a n e q u a l, z e ro s in c e th e m a r k e t w i l l p la c e a p o s it iv e v a lu e
o n th e p o s s ib ilit y t h a t th e r e s t r ic t iv e le g is la t io n w i l l b e r e p e a le d o r
m o d if ie d , e it h e r by le g is la t iv e o r ju d ic ia l a c t io n , le a v in g Laym an
fr e e o n c e a g a in t o use h is t h i n g in v a lu a b le w a y s . M o r e o v e r , s in c e
th e v a lu e o f th e s e “ r e p e a l r i g h t s ” w i l l b e a f u n c t i o n o f th e m a r k e t ’ s
p e r c e p t io n s as t o th e p r o b a b i l i t y a n d n a tu re o f le g a l m o d if ic a t io n ,
n o h a r d - a n d - fa s t r u l e c a n b e s ta te d w h ic h s p e c ifie s th e m a r k e t v a lu e
t h a t a t h i n g c a n r e t a in a n d y e t q u a l i f y as ta k e n u n d e r th e “ d i m i n u
t i o n o f v a lu e ” te s t.
T h is c o n c lu s io n is s tre n g th e n e d w hen th e p r o b le m of “ s c ra p
v a lu e ” is in t r o d u c e d . I t is c o n c e iv a b le , f o r e x a m p le , t h a t a lt h o u g h
th e C a d illa c h a s b e e n r e n d e r e d useless, a l l o f its p a r ts m a y b e u s e
f u l f o r o t h e r p u rp o s e s . H u b c a p s m a y b e u s e d f o r a s h tra y s , b a tte r ie s
f o r a la w n m o w e r , a n d so f o r t h . I f so, t h e n Laym an w o u ld own a
l o t o f n e w t h in g s w h ic h u s e d to b e p a r ts o f th e C a d illa c . N o n e th e le s s
h e w o u ld have been d e p r iv e d of a C a d illa c , ju s t as L a y m a n w as
d e p r iv e d o f H a m b u r g e r H e a v e n e v e n t h o u g h h e r e t a in e d th e c o lle c
tio n o f p o ts , p a n s , a n d h o t p la t e s t h a t w e re used in th e s to re ; see
pp. 1 3 5 -3 6 in fr a . In b o th cases, a t h i n g th a t c o u ld be id e n t if i e d
i n te r m s o f s o c ia l p r a c tic e s h a s b e e n d e s tr o y e d ; a n d i t is t h is d e s tr u c
t i o n o f s o c ia l p r o p e r t y t h a t is th e g r a v a m e n o f L a y m a n ’ s c o m p la in t .
In s h o r t, th e r e q u is it e “ d im in u tio n of v a lu e ” m ust be m e a s u re d
e i t h e r b y th e t h i n g ’ s “ s c ra p v a lu e ” o r “ r e p e a l v a lu e ” — w h ic h e v e r is
h ig h e r . T h i s is a d e t e r m in a t i o n w h ic h r e q u ir e s s e n s it iv it y to t h e fa c ts
o f i n d i v i d u a l cases i f th e a d m in i s t r a t i o n o f ta k in g s la w is e v e n to
p r e t e n d t o b e a g o o d a p p r o x m a t i o n o f th e O r d i n a r y u n d e r s t a n d in g
o f c o n s t i t u t i o n a l r e q u ir e m e n t s .
5 1 . See B u r e a u o f M in e s o f M a r y l a n d v . G e o r g e ’ s C r e e k C o a l a n d
L a n d C o ., 272 M d . 143, 321 A .2 d 7 4 8 (1 9 7 4 ); V illa g e H o u s e , I n c . v .
Town of Loudon, 114 N . H . 76, 3 1 4 A . 2 d 6 3 5 (1 9 7 4 ); I n r e S p r in g
NOTES TO PAGES 14 2 -4 3
253
V a lle y D e v e lo p m e n t , 3 0 0 A . 2 d 7 3 6 ( M e . 1 9 7 3 ); G o ld e n v . P la n n in g
B o a rd o f T o w n o f R a m a p o , 3 0 N . Y . 2 d 3 5 9, 3 3 4 N .Y .S .2 d 138, 285
N . E . 2 d 291, a p p e a l d is m is s e d 4 0 9 U .S . 1003 (1 9 7 2 ); J u s t v . M a r in e t t e
C o u n t y , 5 6 W is .2 d 7, 201 N . W . 2 d 761 (1 9 7 2 ).
5 2 . R e c a ll th a t w e a re s p e a k in g h e r e o n ly o f cases t h a t d o n o t
q u a l i f y as p r im a fa c ie ta k in g s u n d e r e it h e r o f th e h e a d s p r e v io u s ly
c o n s id e r e d .
53 . See S ta te v . J o h n s o n , 265 A .2 d 711 ( M e . 1 9 7 0 ); C o m m is s io n e r
o f N a t u r a l R e s o u rc e s v . S. V o lp e C o ., 3 4 9 M a s s . 104, 2 0 6 N .E .2 d 66 6
(1 9 6 5 ); D o o le y v . T o w n P la n and Z o n in g C o m m is s io n , 151 C onn.
3 0 4 , 197 A . 2 d 7 7 0 (1 9 6 4 ); M o r r is C o u n t y L a n d I m p r o v e m e n t C o . v .
P a r s ip a n n y - T r o y H i l l s , 4 0 N .J . 5 3 9 , 193 A . 2 d 232 (1 9 6 3 ).
5 4 . ‘ ‘ P r o p e r t y , U t i l i t y , a n d F a irn e s s ,” 8 0 H a r v . L . R e v . 1165, 1233
(>967)-
5 5 . T h e c a v e a t e n te r e d a t n . 50 s u p r a s h o u ld b e k e p t in m in d in
a p p r a is in g th e a b s o lu te v a lu e a t h i n g m a y r e t a in a n d y e t f a l l w i t h i n
th e class o f p r im a fa c ie ta k in g s . A s is m a d e c le a r th e r e , n o h a rd
a n d fa s t r u le is a p p r o p r i a t e t o t h is m a t t e r , th e ju d g e b e in g o b lig e d
to ta k e i n t o a c c o u n t “ s c r a p ” v a lu e a n d “ r e p e a l” v a lu e in m a k in g a
d e c is io n . O r d i n a r y c o u r ts h a v e n o t , I t h i n k , b e e n s u f f ic ie n t ly s e n s itiv e
to t h e fa c t t h a t m a r k e t v a lu e c a n c o n c e iv a b ly b e q u it e h ig h in ab
s o lu te te r m s a n d y e t s a tis fy th e c o n d it io n s f o r a p r im a fa c ie t a k in g .
C f. N o t e , “ J u s t C o m p e n s a t io n and th e A s s a s s in ’ s B e q u e s t: A U tili
t a r ia n A p p r o a c h , ” 122 U . P a . L . R e v . 1012 (1 9 7 4 ).
56 . See, e .g., M ic h e lm a n , “ P r o p e r t y , U t i l i t y and F a irn e s s ,” n . 54
s u p ra , 1 1 9 0 -9 3 (1 9 6 7 ); S a x, “ T a k in g s and th e P o lic e P o w e r ,” 74
Y a le L . J . 36, 6 0 (1 9 6 4 ).
57. A s I h a v e a rg u e d in c h a p . 4, th e r e s t r a in e d K a n tia n w o u ld
d e c id e b o t h cases u n d e r th e s a m e te s t— d o p ro c e s s co sts in v o lv e d in ~
c o m p e n s a tio n e x c e e d th e n e t b e n e fits o f th e p r o je c t f o r w h ic h th e
t a k in g h a s b e e n ~ u n c ie rta k e n ? i f so, c o m p e n s a tio n w H I H je l I e h i eriT"Tf~
n o t, it w ill b e g r a n te d . In c o n d u c t in g t h is in q u ir y it is o n ly th e -
p r a g m a t ic ju d g e w ho w ill count as a cost th e s p e c ia l g rie v a n c e s
s u ffe r e d by th o s e c itiz e n s w ho have not le a r n e d to th in k about
th e ir le g a l r e la t io n s h ip s in S c ie n t if ic te r m s and so s u ffe r s p e c ia l
costs w h e n t h in g s th e y a re a c c u s to m e d to c a ll “ t h e ir s ” a re ta k e n .
Y e t, as w e h a v e s h o w n , t h is k i n d o f j u d i c i a l p r a g m a t is m seem s e x
c e e d in g ly d i f f i c u l t to ju s tify w hen th e p o lit ic a l b ra n c h e s have, by
h y p o th e s is , r e fu s e d to g iv e i t d e c is iv e w e ig h t . See p p . 6 0 - 6 4 a n d 83
s u p ra .
5 8 . 8 0 H a r v . L . R e v . 1165, 1234.
59. T h o u g h M ic h e lm a n h im s e lf d o e s n o t m a k e t h is t r a n s it io n , i t
is passages f r o m M i c h e l m a n ’ s a r t ic le lik e th e o n e w e h a v e q u o te d
t h a t s ta n d o u t f r o m th e e n o r m o u s le g a l l i t e r a t u r e on th e t a k in g s
c la u s e as th e m ost s u g g e s tiv e of th e O r d in a r y in te r p r e ta tio n we
have ta k e n p a in s to d e v e lo p . A llis o n D u n h a m ’s essay, “ G r ig g s v.
A lle g h e n y C o u n ty in P e r s p e c tiv e : T h ir ty Y e a rs o f S u p r e m e C o u rt
E x p r o p r ia tio n L a w , ’ ’ 1 9 6 2 S u p r e m e C o u rt R e v . 6 3 , to w h ic h I am
g e n e r a lly in d e b t e d , a ls o p r o v id e s h e l p f u l c lu e s .
60. W h ile M i c h e l m a n ’ s d is c u s s io n o f th e “ d im in u tio n o f v a lu e ”
te s t se e m s t o m e e n t i r e ly c o r r e c t so f a r as i t g o es, th e r e is re a s o n to
b e lie v e th a t even h is s k e tc h of th e uneasy U tilita r ia n case fo r
“ d im in u tio n o f v a lu e ” seem s u n d u l y k in d to e x is t in g d o c t r in e , at
le a s t w h e n i t is c o n s id e r e d a g a in s t th e b a c k g r o u n d p r o v id e d b y o u r
S c ie n t if ic t h e o r y o f j u d i c i a l r o le , i n t r o d u c e d i n c h a p . 2.
For we have a lr e a d y se e n, at pp. 6 0 -6 4 , th a t even in n o v a t iv e
ju d g e s w ho a re q u it e w illin g to c h a lle n g e th e c o n s e r v a tiv e and
d e f e r e n t ia l a s p e c ts of th e r e s t r a in e d r o le w ill th in k it q u ite a
d iffe r e n t m a tte r w hen it com es to p r o te c tin g p r a g m a t ic a lly th e
h u rt fe e lin g s s u ffe r e d by th o s e w ho have not le a r n e d th a t th e ir
c la im s t o p r o p e r t y r ig h t s a re ju s t i f i e d o n ly so lo n g as th e y f u r t h e r
th e g e n e r a l u t i l i t y . Y e t i t is p r e c is e ly t h is m o v e a w a y f r o m p r in c ip le
t o p r a g m a t is m w h ic h is i n v o lv e d in th e a c c e p ta n c e o f M ic h e lm a n 's
th r e e - s te p a r g u m e n t , r e q u i r i n g as i t d o e s th e s p e c ia l p r o t e c t io n of
th o s e w h o s e f e e lin g s a re h u r t w h e n “ th e ir ” t h in g s a re ta k e n fr o m
t h e m f o r th e sa ke o f th e g e n e r a l u t i l i t y . W h i l e d o u b tle s s a d e f e r e n t ia l
ju d g e w o u l d p r o v id e g r e a t le e w a y f o r p r a g m a t ic le g is la t iv e a t t e m p t s
to d e a l w it h th e h u r t fe e lin g s o f th o s e w h o possess a n t i - U t i l i t a r i a n
m a n n e r s o f t h o u g h t a n d s e n s ib ilit y , i t is q u it e a n o th e r th in g fo r a
ju d g e to e n d o w th o s e w h o t h i n k o f t h e i r r e l a t i o n s h i p to o b je c ts i n a n
u n - S c ie n t if ic w ay w ith s p e c ia l c o n stitu tio n a l r ig h t s , at le a s t if he
hopes to m a i n t a in h is s t a n d in g as a S c ie n t if ic P o lic y m a k e r . The
p re s e n t “ d im in u tio n o f v a lu e te s t” n o t o n ly r e q u ir e s th e S c ie n t if ic
U tilita r ia n t o i n d u lg e a “ s u s p e c t” f i n d i n g o f fa c t, as M ic h e lm a n s u g
g e sts; i t a ls o r e q u ir e s h i m to in d u lg e a p r a g m a t ic t h e o r y o f j u d i c i a l
r o le t h a t is a t le a s t e q u a lly d o u b t f u l f r o m a S c ie n t if ic P o lic y m a k in g
p o i n t o f v ie w .
61. W h i l e M ic h e lm a n r e lie s o n J o h n R a w ls ’s t h e o r y o f ju s t ic e to
d e v e lo p an a p p ro a c h to c o m p e n s a tio n q u e s t io n s r e s e m b lin g th e
K a n t i a n o n e (see c h a p . 4, n . 25 s u p r a ) , t h is n o n - U t i l i t a r i a n concep
NOTES TO PAGES 14 5 -4 6
255
tio n is n o t t r e a te d w i t h th e sa m e c a re as is th e U t i l i t a r i a n one. In
a n y e v e n t, a S c ie n t if ic R a w ls ia n ju d g e w o u ld se e m to be as p e r
p le x e d as m y S c ie n t if ic K a n t i a n w i t h a n in s is te n c e u p o n th e e x t e n t
to w h ic h a p a r t i c u la r t h i n g d im in is h e s i n v a lu e , s in c e it is a n in
d iv id u a l’s to ta l w e a lt h and in c o m e (ra th e r th a n h is p o s se ssio n of
th in g s ) w h ic h R a w ls w o u ld use to m e a s u re a p e r s o n ’ s w e lf a r e fo r
p u rp o s e s of d is tr ib u tiv e ju s tic e . See John R a w ls , A T h eo ry of
Ju s t ic e , § 15 (1 9 7 1 ).
62. M ic h e lm a n lo o k s to th e le g is la t u r e , r a t h e r th a n th e c o u r ts , f o r
in n o v a t i o n in c o m p e n s a tio n p ra c tic e s . E x is t in g j u d i c i a l d o c t r in e is
t o le r a t e d o n th e g r o u n d t h a t c o u r ts c a n n o t b e r e a s o n a b ly e x p e c te d
to i m p le m e n t f u l l y e it h e r th e U t i l i t a r i a n o r R a w ls ia n C o m p r e h e n s iv e
V ie w s t h a t in M i c h e l m a n ’ s o p i n i o n r e p r e s e n t th e t w o m o s t p la u s ib le
c a n d id a te s f o r th e p o s it io n o f C o m p r e h e n s iv e V ie w in th e A m e r ic a n
le g a l s y s te m . 8 0 H a w . L . R e v . 1165, 1 2 4 5 -5 6 .
63. I n c o n tr a s t, S a x ’ s e m b ra c e o f S c ie n tic P o lic y m a k in g is n o t so
r e a d ily s u g g e s tiv e o f th e d e c lin e o f O r d i n a r y O b s e r v in g m e th o d s in
th e a c a d e m y . S in c e p r e s e n t d o c t r in e is b a s e d o n O r d in a r y m e th o d
o lo g y , i t is o n ly n a t u r a l t h a t s o m e o n e w h o is d is s a tis fie d w i t h e x is t in g
la w w i l l a ls o b e p r o n e to r e je c t th e c o n c e p t u a l f r a m e w o r k g i v i n g i t
s tru c tu re . U n lik e M ic h e lm a n ’s e ffo rt to ju s tify e x is t in g la w in
S c ie n t if ic te rm s , fo r m and s u b s ta n c e s u p p o r t o n e a n o t h e r in S a x’s
e n t e r p r is e . See, e .g ., “ T a k in g s , P r iv a t e P r o p e r t y a n d P u b lic R ig h t s , ’ ’
81 Y a le L . J . 149, 1 6 1 -7 2 (1 9 7 1 ).
64. A n d r e c a ll t h a t L a y m a n ’s O r d i n a r y c la im t h a t h is C a d illa c h a s
b e e n ta k e n fro m h im is n o t d e fe a te d b y p o in t in g o u t th a t he can
s e ll h is C a d illa c as ju n k to th e n e ig h b o r h o o d r e c y c lin g p la n t . See
p p . 1 3 5 -3 6 , a n d n o te s 5 0 a n d 55 s u p ra .
6 5 . T h e p o i n t is s u f f ic ie n t ly o b v io u s n o t to h a v e b e e n d is c u s s e d in
P h illip N ic h o ls , The Law o f E m in e n t D o m a in , a n d o t h e r s im ila r
tre a tis e s .
66. W h i l e t h e s ta tu s o f th e s ta te a c t io n d o c t r in e is m u c h m o o te d in
d is c u s s io n s o f th e c o n s t i t u t i o n a l p r o t e c t io n o f c i v i l r ig h t s , c o m p a r e
C h a r le s L . B la c k , J r . , “ T h e S u p re m e C o u rt, 1966 T e r m , F o r e w o r d :
‘S ta te A c t i o n , ' E q u a l P r o t e c t io n , a n d C a l i f o r n i a ’ s P r o p o s it io n 1 4 ," 81
H a w . L . R e v . 6 9 (1 9 6 7 ), w i t h J a c k s o n v . M e t r o p o l i t a n E d is o n C o .,
419 U .S . 345 (1 9 7 4 ), and H udgens v. N a tio n a l Labor R e la t io n s
B o a r d , 4 2 4 U .S . 5 0 7 (1 9 7 6 ), I k n o w o f n o s e lf-c o n s c io u s d is c u s s io n o f
th e p r o b le m as i t a ris e s in th e p r e s e n t c o n t e x t , d e a lin g w i t h s ta te
r e s p o n s ib ilit y for changes i n th e e c o n o m ic e n v i r o n m e n t-
6 7 . T h e p a r a d ig m a t ic e x p o n e n t o f t h is a s p e c t o f S c ie n t if ic P o lic y
m a k in g is G u id o C a la b r e s i. See h is T r a g ic C h o ic e s ( f o r t h c o m in g ) ;
“ P ro p e rty R u le s , L i a b i l i t y R u le s a n d In a lie n a b ility : O he V ie w of
th e C a t h e d r a l” ( w i t h A . D o u g la s M e la m e d ) 85 H a r v . L . R e v . 1089
(1 9 7 2 ); T h e Costs o f A c c id e n t s c h a p s . 7, 8 (1 9 7 0 ).
6 8 . E c o n o m ic S t a b iliz a t io n A c t o f 19 70 , 84 S ta t. 7 9 9 , a n d a s s o c ia te d
E x e c u t iv e O rd e rs . T h e A ct and E x e c u t iv e O r d e r s a re set f o r t h at
12 U S C § 1964, n o te ( S u p p le m e n t I I I 1 9 7 3 ).
69. O f th e m a n y cases a r is in g u n d e r th e N i x o n p r ic e s t a b iliz a t io n
p ro g ra m , th e ta k in g s issu e w as d e a lt w ith e x p lic it ly in W e s te r n
S ta te s M e a t P a c k e rs A s s ’ n ., I n c . v . D u n l o p , 4 8 2 F .2 d 1401 ( T . E . C . A .
1973 ), a n d M i n d e n B e e f C o . v . C o s t o f L i v i n g C o u n c il, 362 F .S u p p .
2 9 8 (1 9 7 3 ). I n b o t h cases th e c o u r t r e je c t e d th e ta k in g s c la im , c i t i n g
B o w le s v. W i l l i n g h a m , 321 U .S . 5 0 3 (1 9 4 4 )— a case u p h o l d i n g a r e n t
c o n tro l p ro g ra m a g a in s t a ta k in g s c la im b y a s s e r tin g t h a t th e e x is
te n c e o f th e w a r t im e e m e rg e n c y m a d e i t u n n e c e s s a ry t o p a y c o m p e n
s a tio n . W h i l e th e B o w le s c o u r t re s te d its d e c is io n o n th e “ e m e rg e n c y ”
th e o r y , i t is i m p o r t a n t t o r e c o g n iz e t h a t th e fa c ts o f th e case d id
n o t in v o lv e a p r i m a fa c ie t a k i n g i n a n y o f th e O r d i n a r y senses w e
have d is t in g u is h e d . H ence, it is not n e c e s s a ry fo r th e O r d in a r y
a n a ly s t to doubt th e p r o p r ie ty o f th e B o w le s h o l d i n g in o r d e r to
ra is e d o u b ts as to th e scope and v a lid ity of th e “ e m e rg e n c y ”
r a t io n a le . T h e s e d o u b t s a re e n h a n c e d b y th e f a c t t h a t th e C o u r t’s
h o ld i n g in U n ite d S ta te s v . P e w e e C o a l C o ., 341 U .S . 114 (1 9 5 1 ),
in d ic a t e s t h a t t h e m e r e e x is te n c e o f a w a r t im e e m e rg e n c y is in s u f f i
c ie n t t o s u s p e n d th e o p e r a t io n o f th e c la u s e ’s p r o t e c t io n . T h u s , _the
fa c t t h a t th e ju d g e s i n th e r e c e n t c h a lle n g e s to p r ic e c o n tro l fe lt
th e m s e lv e s o b lig e d t o r e s u r r e c t th e d o u b t f u l “ e m e r g e n cy 7 r a t io n a le
su g g e sts t h a t they__ fo iin d c o n s id e r a b le c o n s t i t u t i o n a l d i f f i c u l t y w i t h a
s ta te p r ic e c o n tro l e ffo rt as soon as if to o k on a b u r e a u c r a tic ,
le g a lis t ic c h a r a c te r . For m o re on w a r t im e e m e rg e n c ie s , see h . 71
in fr a .
A s i m i l a r is su e h a s a r is e n u n d e r t h e E m e r g e n c y P e t r o le u m A llo
c a t io n A c t , 87 S ta t. 6 2 7 , 15 U .S .C . § § 7 5 1 - 6 ( S u p p le m e n t I V 1 9 74 ),
w h ic h a u th o r iz e s th e m a n d a to ry a llo c a t io n o f p e t r o le u m p r o d u c ts .
The F e d e ra l E n e rg y A d m in is tr a tio n p r o m u lg a t e d r e g u la t io n s es
t a b lis h in g “ e n t it le m e n t s ” fo r th e u se o f s p e c ific q u a n t it ie s o f c e r
t a in c r u d e o i l a n d r e q u i r i n g r e fin e r s w h o e x c e e d e d t h e i r e n t it le m e n t s
t o “ p u r c h a s e ” u n u s e d e n t it le m e n t s f r o m o t h e r r e fin e r s b y m e a n s o f
cash p a y m e n ts . See 10 C .F . R . § 2 1 1 .6 7 .
NOTES TO PAGE 148
257
The r e g u la t io n s w e re im m e d ia t e ly c h a lle n g e d under th e t a k in g

c la u s e as a fo r c e d s u b s id y o f c o m p e t it o r s . See M a r a t h o n O il C o m
pany v. F e d e ra l E n e rg y A d m in is tr a tio n , 516 F .2 d 1397 (T .E .C .A .
1975), c e rt. d e n . 4 2 6 U .S . — (1 9 7 6 ); C it ie s S e rv ic e C o m p a n y v . F e d
e r a l E n e r g y A d m i n i s t r a t i o n , 5 2 9 F .2 d 1016 ( T . E . C . A . 1 9 7 5 ), c e r t. d e n .
4 2 6 U .S . — (1 9 7 6 ).
70. U n i t e d S ta te s v. C e n tra l E u re k a M in in g C o ., 357 U .S . 155
(>958)-
71. T h e im p o r t a n c e to th e O r d i n a r y ju d g e o f th e fo rm o f s ta te
in te r v e n tio n is show n by c o n t r a s t in g Eu reka, n. 70 s u p ra , w ith
U n i t e d S ta te s v . P e w e e C o a l C o ., 341 U .S . 114 (1 9 5 1 ). I n P e w e e th e
g o v e r n m e n t r e s p o n d e d to th e t h r e a t o f a w a r t im e s t r ik e b y is s u in g a n
“ O rd e r fo r T a k in g P o s s e s s io n ” of th e m in e , r e q u ir in g th a t m in e
o ffic ia ls a c t as g o v e r n m e n t a g e n ts , t h a t th e A m e r ic a n fla g b e f lo w n a t
th e m in e a n d t h a t th e s ite b e p o s te d as “ U n i t e d S ta te s P r o p e r t y . ”
G iv e n th e s e fa c ts , th e C o u r t h a d no d iffic u lty fin d in g a t a k in g by
t r a n s f e r o f r i g h t f u l p o sse ssio n .
D e s p ite E u r e k a ’s s i m i l a r i t y to P e w e e f r o m th e S c ie n tific p o i n t o f
v ie w , th e S u p r e m e C o u r t h a d little t r o u b le d is t in g u is h in g b e tw e e n
P e w e e ’s s e iz u re o f th e c o a l m in e s a n d E u r e k a ’s d iv e r s io n o f la b o r
fr o m th e g o ld m in e s . J u s tic e B u rto n , w r itin g fo r th e Eu reka m a
j o r i t y , d e n ie d P e w e e ’s p r e c e d e n t ia l v a lu e o n th e g r o u n d t h a t “ th e
G o v e rn m e n t [h e r e ] d id not occupy, use or in any m anner ta k e
p h y s ic a l p o s s e s s io n o f th e g o ld m in e s .” 35 7 U .S . 155, 1 6 5 -6 6 . W h i l e
B u rto n a d m it t e d th a t th e o rd e r h ad d e p r iv e d th e owner of “ th e
m o s t p r o f it a b le use o f h is p r o p e r t y , ” h e c o n c lu d e d t h a t “ i n th e c o n
t e x t o f w a r , w e h a v e b e e n r e l u c t a n t to f in d t h a t d e g re e o f r e g u la t io n
w h ic h , w ith o u t s a y in g so, r e q u ir e s c o m p e n s a t io n . ” Id . at 168.
M r. J u s tic e H a r la n d is s e n te d v ig o r o u s ly , a r g u in g th a t th e o w n e rs
“ w e re t o t a l l y d e p r iv e d o f th e b e n e f ic ia l use o f t h e i r p r o p e r t y ” and
t h a t “ as a p r a c t ic a l m a t t e r th e O r d e r le d to c o n s e q u e n c e s n o d i f f e r e n t
fro m th o s e t h a t w o u ld have f o llo w e d fro m th e te m p o ra ry a c q u is i
t i o n o f p h y s ic a l p o s s e s s io n .” I d . a t 181.
72. I n v e rse c o n d e m n a t io n is c o n c e iv e d as a r e m e d y a g a in s t ta k in g s
t jia t h ave been e ffg e ie fl~ w i t h o u t re c o u rs e to c o n d e m n a t io n . The
u n d e r ly in g T h e o ry is i l l f r t th e c o n s titu tio n a l p r o v is i o i T T i^ f i n s t un
c o m p e n s a te d t a k in g s is s e lf - e x e c u t in g ^ s o t h a t a ffe c te d o w n e r s h a v e
a c a u se o f " a r t i o n — e v ^ n - l n th p absence of o f f ic ia l p r o c e e d in g s in
e m in e n t d o m a in . A c t io n s in in v e r s e c o n d e m n a t io n can a ris e w h e n
p r o p e r t y h a s b e e n ta k e n in a n y o f th e th r e e w a y s w e h a v e d is t in -
g u is h e d . P u m p e lly v . G r e e n Bay C om pany 8 0 U .S . (1 3 W a l l . ) 166

(1 8 7 1 ); U n i t e d S ta te s v . C a u s b y , 3 2 8 U .S . 2 5 6 (1 9 4 6 ); A c k e r m a n v.
P o r t o f S e a ttle , 55 W a s h . 2 d 4 0 0 , 3 4 8 P .2 d 6 6 4 ( i9 6 0 ) .
73. I t w a s i n A s h w a n d e r v . T e n n e s s e e V a lle y A u t h o r i t y , 297 U .S .
288 (1 9 3 6 ), th a t J u s tic e B r a n d e is advanced th e n o t i o n — la t e r de
v e lo p e d by F ra n k fu rte r, B ic k e l, and th e ir s c h o o l— t h a t th e C o u rt
s h o u ld m a k e u se o f a w id e r a n g e o f j u r i s d i c t i o n a l d o c t r in e s i n o r d e r
to a v o id t h e r e s o lu t io n o f c o n s t i t u t i o n a l q u e s t io n s t h a t w e re b o th
i n t e l l e c t u a l l y d i f f i c u l t a n d p o l i t i c a l l y s e n s itiv e . A s h w a n d e r in v o lv e d ,
a m o n g o t h e r th in g s , a ta k in g s c la im b y s t o c k h o ld e r s o f a c o m m e r c ia l
p o w e r c o m p a n y , w h o a r g u e d t h a t th e f a i l u r e o f th e g o v e r n m e n t to
p a y c o m p e n s a tio n f o r lo s t c o m p a n y p r o f it s r e n d e r e d u n c o n s t it u t i o n a l
th e n e w ly c r e a te d T e n n e s s e e V a lle y a u t h o r i t y . I d . a t 2 9 5.
7 4 . C o n s id e r , fo r e x a m p le , th e w ay in w h ic h th e c o u r ts have
d e a lt w i t h t h e a d v e n t o f th e a ir p la n e . T h e f ir s t cases w e r e easy. I n
th e s e , a ir p o r t s h a d m a r k e d o u t g lid e - p a t h s f o r a r r i v i n g a n d d e p a r t in g
a ir p la n e s . T h o s e p r o p e r t y o w n e r s u n f o r t u n a t e e n o u g h to h a v e t h e i r
la n d lo c a t e d d i r e c t l y u n d e r th e p a t h w e re t h e r e b y m a d e th e v ic t im s
o f a c o n t i n u i n g s tr e a m o f p la n e s , e a c h s k im m in g t h e tr e e to p s , t h a t
m ade it im p o s s ib le to c a rry on th e ir a c c u s to m e d a c t iv it ie s . S in c e
t h e g o v e r n m e n t a c t m a r k i n g o u t th e g lid e - p a t h s h a d p e r m i t t e d th e
a ir p la n e s to d e s tr o y L a y m a n ’ s ( s o c ia l) th in g s , i t w a s easy f o r O r d i n a r y
ju d g e s t o f i n d th a t a ta k in g h a d o c c u rre d ; see U .S . v. C a u s b y , 238
U .S . 2 5 6 (1 9 4 6 ) (a case m a d e e v e n e a s ie r b y th e f a c t t h a t th e lo w -
fly in g p la n e s w h ic h d e s tr o y e d C a u s b y ’ s c h ic k e n - f a r m w e re m ilita r y
c r a f t ) . H a v i n g g o n e t h is fa r , h o w e v e r , O r d i n a r y ju d g e s b e c a m e f e a r
f u l o f th e e x t e n t t o w h ic h im p o s in g a b r o a d c o m p e n s a tio n r e q u ir e
m e n t w o u ld b u rd e n th e a c t iv is t s ta te ’ s e f f o r t to fu rth e r a ir tr a n s
p o r ta tio n . T h is , at any r a te , is how I w o u ld e x p la i n cases lik e
B a t t e n v. U n i t e d S ta te s , 3 0 6 F .2 d 5 8 0 (1 9 6 2 ), c e r t. d e n . 371 U .S . 955
(1 9 6 3 ), w h ic h d e n ie d c o m p e n s a tio n to la n d o w n e r s n e a r— b u t not
d i r e c t l y b e n e a t h — th e g lid e - p a t h . F r o m a n O r d i n a r y ju d g e ’ s p o i n t o f
v ie w , t h is w as a d is tin c tio n w ith o u t a d if f e r e n c e — e v e n th o u g h a
d ir e c t o v e r f l i g h t w a s n o t i n q u e s t io n , th e f a c t r e m a in s t h a t L a y m a n ’ s
( s o c ia l) t h in g s h a d b e e n ta k e n ( d e s tr o y e d ) b y th e s ta te d e c is io n . I t is
f o r t h is re a s o n , I t h i n k , t h a t d e c is io n s l i k e B a tte n h a v e p r o v e d s o m e
w h a t u n s ta b le , w i t h c o u r ts , a t le a s t a t th e s ta te le v e l, in c r e a s in g ly
w illin g to e x te n d th e t a k in g s c la u s e to re p re s e n t m o re a d e q u a te ly
com m on p e r c e p t io n s o f g r o w in g s ta te in v o lv e m e n t . See N e s t le v.
S a n ta M o n ic a , 6 C a l. 3 d 9 2 0 , 101 C a l. R p t r . 5 6 8 , 4 9 6 P .2 d 4 8 0 (1 9 7 2 );
NOTES TO PAGE 149
259
A a r o n v . L o s A n g e le s , 4 0 C a l. A p p . g d 4 7 1 , 115 C a l. R p t r . 162 (1 9 7 4 ),
c e r t, d e n ., 4 1 9 U .S . 1122 (1 9 7 5 ); T h o r n b u r g v . P o r t o f P o r t la n d , 223
O r . 178, 3 7 6 P .2 d 100 (1 9 6 2 ); M a r t i n v . P o r t o f S e a ttle , 64 W a s h e d
3 ° 9 > 3 9 1 p -2 d 54 ° 0 9 6 4 ). c e r t - d e n - 379 u s - 9 89 ( 19 6 5 )» c i t Y o f J a c k "

s o n v ille v . S c h u m a n n , 167 S o .2. 95 ( F la . A p p . 1 9 64 ).
S im ila r ly , t h e p r o b le m of “ p la n n in g b lig h t” in u rb a n re n e w a l
p r o je c t s h a s le d c o u r ts to a s s u m e a less d e f e r e n t ia l s ta n c e to w a r d -
th e a c t iv is t s ta te . F r e q u e n t ly , F o n g d e la y s T n - the im p f e m e n t a t ic m o f -
re n e w a l p r o je c t s r e s u lt in a s e rio u s r e d u c t io n of p ro p e rty v a lu e s
w ith in th e p r o je c t a re a . W h i l e th e S u p r e m e C o u r t in U n i t e d S ta te s
v . M i l l e r , 317 U .S . 3 6 9 (1 9 4 3 ) a n d U n i t e d S ta te s v . V i r g i n i a E le c t r ic
a n d P o w e r C o ., 36 5 U .S . 6 2 4 (1 9 6 1 ) h a d h e ld t h a t in c re a s e o r r e d u c
t io n o f v a lu e c a u s e d b y th e p r o s p e c tiv e t a k in g s h o u ld n o t a ffe c t th e
a w a r d in e m in e n t d o m a in cases, s o m e c o u r ts h a v e s in c e d e v e lo p e d a
“ de fa c to ta k in g ” th e o ry fo r u rb a n re n e w a l cases, w h e re b y th e
p r o p e r t y is to b e c o n s id e r e d f o r v a lu a t io n p u rp o s e s as ta k e n o n th e
d a te th e g o v e r n m e n t a l a g e n c y c o m m it t e d it s e lf to th e p r o je c t . S u b
s e q u e n t loss o f v a lu e d u e t o p l a n n i n g b l i g h t is th u s in c lu d e d in th e
c o n d e m n a t io n a w a r d , o r is r e c o v e r a b le in a n a c t io n fo r dam age by
th e o w n e r. Am en v. C ity of D e a rb o rn , 363 F .S u p p . 1267 (1 9 7 3 );
M a d is o n R e a lt y C o . v . C i t y o f D e t r o it , 3 1 5 F .S u p p . 3 6 7 (1 9 7 0 ); F o s te r
v. C ity of D e t r o it , 25 4 F .S u p p . 655 (1 9 6 6 ), 405 F .2 d 138 (1 9 6 8 );
D ra k e s B a y L a n d C o . v . U n i t e d S ta te s , 191 C t. C l. 3 8 9, 4 2 4 F .2 d 574
(1 9 7 0 ). See I n re E lm w o o d P a r k P r o je c t , 3 7 6 M ic h . 3 1 1 , 136 N . W . 2 d
896 (1 9 6 5 ). T h e r e h a s, h o w e v e r , been som e re s is ta n c e to th e “ de
fa c to t a k i n g ” a p p r o a c h b y t h e c o u rts . H o u s in g A u t h o r i t y v . L a m a r ,
21 111.2 d 3 6 2 , 172 N . E . 2 d 7 9 0 (1 9 6 1 ); S t. L o u is H o u s in g A u t h o r i t y v.
B a rn e s , 3 7 5 S .W .2 d 144 ( M o . 19 64 ).
75. T o ta k e b u t o n e e x a m p le , I s u s p e c t a c o n t e m p o r a r y O r d i n a r y
ju d g e w o u ld n o t ta k e s e r io u s ly a ta k in g s c la im m a d e b y a r e s t a u r a n t
d r iv e n o u t o f b u s in e s s b y a p r iv a t e c o m p e t it o r w h ic h le a s e d a p o r t i o n
o f a s ta te - o w n e d p a r k in g g a ra g e to s e rv e as th e base o f its o p e r a tio n s .
N o n e th e le s s , th e S u p r e m e C o u r t s u c c e e d e d i n fin d in g th e r e q u is it e
s ta te a c t io n w hen such a re s ta u ra n t d is c r im in a t e d a g a in s t b la c k
c u s to m e rs ; see B u r t o n v . C i t y o f W i l m i n g t o n P a r k in g A u t h o r i t y , 365
U .S . 7 15 (1 9 6 1 ). I t s h o u ld b e e m p h a s iz e d , m o r e o v e r , t h a t i n th e c i v i l
r ig h t s a re a a t le a s t, th e s ta te a c t io n d o c t r in e h a s m o v e d f a r b e y o n d
th e O r d i n a r y O b s e r v e r ’ s c o n c e p t io n to in c lu d e m a n y S c ie n t if ic e le
m e n ts in its d o c t r i n a l f o r m u la t io n s . T h u s , d e ta ils — i n v is ib le to th e
L a y m a n ’ s e y e — c o n c e r n in g a n e n t i t y ’s fis c a l a n d r e g u la t o r y r e l a t i o n
s h ip t o th e s ta te h a v e o f t e n b e e n h e ld t o b e d e c is iv e i n in d iv id u a l
s ta te a c t io n d e c is io n s . H e r e , as e ls e w h e re , th e ta k in g s c la u s e seem s a
r e la tiv e ly p u re O r d in a r y ty p e — t h o u g h i t is f a r f r o m c le a r to w h a t
e x t e n t t h e s ta te a c t io n n o t i o n i m p l i c i t i n th e t a k in g s cases w i l l r e t a in
it s i n t e g r i t y a f t e r t im e b r in g s to th e s u rfa c e its a p p a r e n t in c o n s is
te n c y w i t h th e fa r m o re fa m ilia r ( if c h a o t ic ) s ta te a c t io n n o t io n s
d e v e lo p e d i n th e g r e a t c i v i l r ig h t s cases.
76. I n d e e d , t h is is t r u e o f th e s y s te m o f f e u d a l t e n u r e , f r o m w h ic h
th e m o d e r n A m e r ic a n la w o f r e a l p r o p e r t y h a s e v o lv e d .
7 7 . See c h a p t e r 5, n . 14 s u p ra .
78. See p p . 1 0 1 -0 2 s u p ra .
79. I s h a ll n o t t r y t o d e a l w i t h th e e lu s iv e n o t i o n o f “ n e c e s s ity ” as
i t is u n d e r s t o o d b y th e O r d i n a r y O b s e r v e r . F o r p r e s e n t p u rp o s e s , i t
is e n o u g h t o say t h a t a t a k in g is necessary t o a c h ie v e th e t e r m i n a t i o n
o f a n a n t is o c ia l use w h e n less d r a s t ic m e a n s a re p l a i n l y in a d e q u a t e
to a c h ie v e th e o b je c t iv e i n a r e lia b le w a y . I n s h o r t, I h a v e i n m i n d a
te s t w i t h m o re b it e th a n th a t fo r m u la tio n of th e “ less r e s t r ic t iv e
a lt e r n a t iv e s te s t” w h ic h w o u ld m e r e ly r e q u ir e t h a t less d r a s t ic fo r m s
o f r e g u l a t i o n b e s h o w n to b e s o m e w h a t less e ffe c tiv e t h a n th e t a k i n g
a p p r o a c h . See P a u l B re s t, Processes of Constitutional Decisionmak-
ing 9 8 7 - 9 4 (1 9 7 5 ).
To m ake m a tte rs e v e n m o re c o m p le x , th e n o tio n o f “ n e c e s s ity ”
( h o w e v e r i t m a y b e m o r e p r e c is e ly s p e c ifie d ) m u s t b e f ilt e r e d b y o u r
t h e o r y o f j u d i c i a l r o le b e fo r e i t c a n b e r e n d e r e d o p e r a t io n a l. T h u s a
deferential ju d g e w o u ld ta k e in to account th e fa c t th a t th e non
j u d i c i a l b r a n c h e s h a v e a lr e a d y fo u n d th a t th e r e q u is it e d e g re e of
n e c e s s ity o b t a in s a n d a sk h im s e lf w h e t h e r there is some reason to
believe t h a t th e t a k i n g is not n e c e s s a ry t o t e r m in a t e th e o ffe n s iv e use
r e l ia b l y . I t m a y b e t h a t w h e n th e n o t i o n o f “ n e c e s s ity ” is q u a lif ie d
in t h is w a y , th e te s t b e c o m e s o p e r a t i o n a l ly e q u iv a le n t t o a j u d i c i a l
i n q u i r y w h e t h e r th e r e is a minimally rational r e la tio n s h ip b e tw e e n
th e l e g is la t u r e ’s o b je c t iv e o f t e r m i n a t i n g a u se t h a t m a y b e O b s e r v
a b ly a n t is o c ia l. E v e n i f t h is is so— a p o i n t n o t a t a l l o b v io u s — th e
n o t i o n o f “ n e c e s s ity ” w o u ld c o m e i n t o its o w n f o r O r d i n a r y ju d g e s o f
less d e f e r e n t ia l v a r ie t ie s .
80. F o r a n illu m in a t in g a n a ly s is o f th e s o c io lo g ic a l r o le o f p r in
c ip le s o f t h is s o rt, see T h o r s t e i n E c k h o f f , Justice: Its Determinants in
Social Interaction (1 9 7 4 ).
8 1 . See th e d is c u s s io n o f th e O r d i n a r y O b s e r v e r ’ s r o le , p p . 93 to
97 s u p r a .
NOTES TO PAGES 15 3 -5 4 26l
82. M u g le r v . K a n s a s , 123 U .S . 6 2 3 , 6 6 9 (1 8 8 7 ).
83. T h i s is not to say th a t th e c ig a r e t te m a n u fa c tu re rs w o u ld
n e c e s s a rily fa r e b e tte r under S c ie n t if ic P o lic y m a k in g . N o n e th e le s s ,
even th e m o s t c u r s o r y c o n s id e r a t io n r e v e a ls t h a t th e m a n u f a c t u r e r s
c o u ld la u n c h a fa r m o re p o w e r f u l case. T h u s , U tilita r ia n s w o u ld
r e c o g n iz e t h a t co sts t o c ig a r e t t e m a n u f a c t u r e r s w o u ld b e e x t r e m e ly
h ig h , a fa c t t h a t w o u ld le n d c o g e n c y t o a c la im f o u n d e d o n C it iz e n
D is a f fe c tio n b a s e d o n w h a t e v e r f e lic if ic d o u b t s r e m a in open a t th e
t im e o n th e s m o k in g q u e s t io n . F u rth e r, th e u n c e r ta in ty co sts g e n
e r a te d by c lo s in g down an e n t ir e in d u s tr y c o u ld w e ll be g r e a t.
H e n c e , th e r a t h e r m o d e s t p ro c e s s co sts o n th e one hand, and th e
s u m o f u n c e r t a in t y a n d d is a f fe c tio n co sts o n th e o t h e r , w o u ld e it h e r
b e c lo s e o r f a v o r c o m p e n s a tio n . T u r n i n g to in n o v a t iv e c o n s id e r a
tio n s , a r e f o r m is t ju d g e w o u ld n o t b e t r o u b le d b y d i s t r i b u t i o n a l c o n
s id e r a tio n s , n o r w o u ld an a c t iv is t b e d e t a in e d by th e “ equal p ro
t e c t i o n ” a s p e c t. B u t th e a c t iv is t m ig h t ta k e s e r io u s ly th e p o s s ib ilit y
of in s titu tio n a l a g g r a n d iz e m e n t d e p e n d in g upon th e k in d of in
s t i t u t i o n t h a t p r o m u lg a t e d th e b a n .
F o r th e S c ie n t if ic K a n t ia n , th e h ig h co sts to m a n u f a c t u r e r s w o u ld
te n d to re d u c e th e net b e n e fits o f th e le g is la t io n , th u s m a k in g a
c o m p a r is o n o f p ro c e s s co sts a n d n e t b e n e fits d i f f ic u lt . R e f o r m is t s a n d
a c tiv is ts w o u ld b e m o v e d in m u c h th e sam e w a y as t h e i r U t i l i t a r i a n
c o u n t e r p a r t s , r e n d e r in g t h e case f o r c o m p e n s a tio n s tr o n g e r f o r i n
n o v a t iv e ju d g e s . I n s u m , S c ie n t if ic P o lic y m a k e r s o f b o t h k in d s w o u ld
f in d th e case f a r h a r d e r th a n i t w o u ld seem u n d e r t r a d i t i o n a l d o c
t r in e .
84. V illa g e o f E u c lid v . A m b l e r R e a lt y C o ., 272 U .S . 3 65 (1 9 2 6 );
V illa g e o f B e lle T e r r e v . B o ra a s , 4 1 6 U .S . 1 (1 9 7 4 ). C f. G o l d b la t t v.
Town o f H e m p s t e a d , 3 6 9 U .S . 5 9 0 (1 9 6 2 ); M ille r v. S choene, 27 6
U .S . 272 (1 9 2 8 ). F o r a n in t e r e s t in g a t t e m p t to a d a p t th e O r d i n a r y
c o n c e p t o f n e ig h b o r lin e s s t o a S c ie n t if ic P o lic y m a k in g f r a m e w o r k o f
a n a ly s is , see R o b e rt C. E llic k s o n , “ A lt e r n a t iv e s to Z o n in g : C ove
n a n ts , N u is a n c e R u le s , a n d F in e s as L a n d U s e C o n t r o ls , ” 4 0 U . C h i.
L . R e v . 6 8 1 , 7 2 8 - 3 3 ( 1973 )*
85. I t is n o t s u r p r is in g t h a t S a x , u s in g a P o lic y m a k in g m e th o d
o lo g y , c o m e s to a d if f e r e n t v ie w o f th e r a ilr o a d - c r o s s in g cases. N o t i n g
th a t s ta te h ig h w a y b u ild in g is an e n t r e p r e n e u r ia l r a th e r th a n a
m e d ia t io n a l a c t iv it y , S a x a rg u e s — f o r re a s o n s d is c u s s e d a t p p . 5 0 -5 2
— t h a t th e s ta te s h o u ld b e o b lig e d to b e a r th e co sts in v o lv e d w h e n its
H ig h w a y D e p a r t m e n t s u b s e q u e n tly lo c a te s a r o a d n e a r a n e x is t in g
26 2 NOTES TO PAGE 155
r a ilr o a d . H e th e re fo re u rg e s th e c o u r ts to o v e r r u le th e ir r a ilr o a d
c r o s s in g d e c is io n s .
86. See n n . 3 6 a n d 41 s u p r a . W h i l e lo w e r c o u r ts a re q u it e v i g i l a n t
i n th e p r o t e c t i o n o f th e r ig h t s o f n o n c o n f o r m i n g uses, see, e .g ., L y o n
S a n d & G r a v e l C o . v . T o w n s h i p o f O a k la n d , 33 M ic h . A p p . 6 1 4 , 190
N . W . 2 d 3 5 4 (1 9 7 1 ); E x t o n Q u a r r y s , I n c . v. Z o n in g B o a r d o f A d j u s t
m e n t o f W e s t W h i t e l a n d T o w n s h i p , 4 2 5 P a . 4 3 , 2 2 8 A . 2 d 169 (1 9 6 7 );
C i t y o f W a r i c k v . D e l B o n is S a n d a n d G r a v e l C o ., 9 9 R . I . 5 3 7 , 209
A . 2 d 227 (1 9 6 5 ), th e S u p r e m e C o u r t h a s b e e n m o r e r e s t r a in e d i n its
t r e a t m e n t , s e n s in g a s e rio u s p r o b le m b u t r e f u s in g t o m a r k d e c is iv e ly
th e o u t e r b o u n d a r y o f th e c o n c e p t o f O r d i n a r y j u s t i f i c a t i o n . T h u s ,
i n H a d a c h e k v . S e b a s tia n , 2 3 9 U .S . 3 9 4 (1 9 1 5 ), J u s tic e M a c K e n n a , f o r
a u n a n im o u s c o u rt, u p h e ld a Los A n g e le s o r d in a n c e in a c la s s ic
b r ic k y a r d case i n la n g u a g e w h o s e r h e t o r ic a l o v e r e x e r t io n bespeaks
a r e c o g n it io n th a t th e le g is la t u r e is b e in g p e r m itte d to a c t in c o n
s is t e n t ly w ith th e L a y m a n ’s c o n c e p t o f O r d in a r y ju s tific a tio n : “A
v e s te d in t e r e s t c a n n o t b e a s s e rte d a g a in s t [ t h e p o lic e p o w e r ] b e c a u s e
o f c o n d it io n s o n c e o b t a i n i n g [ c it in g case ]. T o so h o ld w o u ld p re
c lu d e d e v e lo p m e n t a n d f i x a c i t y f o r e v e r i n its p r i m i t i v e c o n d it io n s .
T h e r e m u s t b e p ro g re s s , a n d i f i n its m a r c h p r iv a t e in te r e s ts a re i n
th e w a y th e y m u s t y ie ld t o th e g o o d o f th e c o m m u n it y . ” I d . a t 4 1 0 .
D e s p it e s u c h v ig o r o u s r h e t o r ic ( w h ic h , if ta k e n s e r io u s ly , w o u ld
r e n d e r th e t a k in g s c la u s e a n u l l i t y ) , H a d a c h e c k is n o t s e ttle d la w
to d a y . N o t o n ly a re lo w e r c o u r ts g e n e r a lly p r o t e c t iv e o f th e r ig h t s o f
n o n c o n fo r m in g uses, but th e m o d e rn S u p re m e C o u r t— in a ra re
sh o w o f in itia tiv e in t a k in g s la w — w a s so t r o u b l e d b y a m o d e rn re
p la y o f th e b r ic k y a r d s c e n a rio t h a t i t a c t u a lly g r a n t e d c e r t i o r a r i to
se t t h in g s r i g h t . See G o l d b l a t t v . T o w n o f H e m p s t e a d , 3 6 9 U .S . 5 9 0
(1 9 6 2 ) ( i n v o l v i n g a sand and g ra v e l p it ra th e r th a n a b r ic k y a r d ) .
W h e n G o ld b la t t ’s m o m e n t o f d e c is io n c a m e , h o w e v e r , th e C o u r t d is
posed of th e case on a n a rro w g r o u n d — a p p a r e n t ly u n w illin g to
m ake som e la r g e d o c tr in a l p ro n o u n c e m e n t th a t w o u ld in e v i t a b l y
h a v e e n g e n d e r e d a f lo o d o f l i t i g a t i o n s e e k in g to p u s h th e C o u r t d o w n
t h e p a t h o f p r o t e c t i n g e s ta b lis h e d e c o n o m ic in te r e s ts . N e v e rth e le s s ,
th e m e re f a c t t h a t th e C o u rt m ade s o m e c lu c k in g n o is e s o n such
m a t t e r s i n a t im e o f g r e a t j u d i c i a l r e s t r a in t is i t s e l f a n i n d i c a t i o n o f
t h e h o ld o f th e O r d i n a r y O b s e r v e r o n th e j u d i c i a l m i n d as i t w o r k s
o u t th e c a te g o rie s o f t a k in g s la w .
8 7 . See, e .g ., L a w r e n c e H . T r ib e , “ F ro m E n v ir o n m e n ta l F o u n d a
t io n s t o C o n s t it u t i o n a l S tr u c tu r e s : L e a r n i n g f r o m N a tu r e ’s F u tu re ,”
84 Y a le L . J . 5 4 5 (1 9 7 5 ); M a r k S a g o ff, “ O n P r e s e r v in g th e N a t u r a l
E n v i r o n m e n t , ” 84 Y a le L . J . 205 (1 9 7 4 ); L a w r e n c e H . T r i b e , “ W a y s
N o t to T h i n k A b o u t P la s tic T r e e s : N ew F o u n d a t io n s f o r E n v i r o n
m e n ta l L a w ,” 83 Y a le L .J. 1315 (1 9 7 4 ); C h r is t o p h e r D. S to n e ,
“ S h o u ld T r e e s H a v e S ta n d in g ? — T o w a r d L e g a l R ig h t s f o r N a t u r a l
O b je c ts ,” 45 So. Ca. L . R e v . 4 5 0 (1 9 7 2 ).
88. T h e case o f S ib s o n v . S ta te , 115 N . H . 124, 3 3 6 A .2 d 2 3 9 (1 9 7 5 ),
w ith w h ic h chap. 1 o p e n e d , is o f t h is c h a r a c te r ; see n n . 2 a n d 6,
c h a p . 1. I n J u s t v. M a r i n e t t e C o u n t y , 5 6 W is . 2 d 7, 201 N . W . 2 d 761
(1 9 7 2 ), a n o t h e r case u p h o l d i n g th e d e n ia l o f a p e r m i t to d e v e lo p
m a r s h la n d , th e S u p r e m e C o u r t o f W is c o n s in re a c h e d an id e n t ic a l
c o n c lu s io n b y a lt e r n a t iv e a r g u m e n ts o f a n e x c e p t io n a lly d e f e r e n t ia l
c h a r a c te r . T h u s , w h ile it co n ceded t h a t “ w h e t h e r a t a k in g has o c
c u rre d depends upon w h e th e r th e r e s t r ic t io n p r a c t ic a lly or sub
s t a n t ia lly r e n d e r s t h e la n d useless f o r a l l re a s o n a b le p u r p o s e s ,” id . a t
15, 7 6 7 , i t w e n t o n to e q u a te “ r e a s o n a b le p u rp o s e s ” w ith “ n a tu ra l
uses” : “ A n o w n e r h a s n o a b s o lu te a n d u n l i m i t e d r i g h t to c h a n g e th e
e s s e n tia l n a t u r a l c h a r a c t e r o f h is la n d so as to use i t f o r a p u r p o s e
f o r w h ic h i t w a s u n s u it e d in it s n a t u r a l s ta te . T h e e x e rc is e o f th e
p o lic e po w e r m ust be re a s o n a b le , and we th in k it is n o t an un
r e a s o n a b le e x e rc is e o f t h a t p o w e r to p r e v e n t h a r m t o p u b l i c r ig h t s
b y l i m i t i n g th e use o f p r iv a t e p r o p e r t y to its n a t u r a l u s e .” I d . a t 17,
7 6 8. A d m ittin g th a t J u s t ’s p ro p e rty had s e v e re ly d e p r e c ia te d in
v a lu e , i t o b s e rv e d t h a t “ t h is d e p r e c ia t io n is n o t b a s e d o n th e use o f
th e la n d in its n a t u r a l s ta te .” I d . a t 23, 7 7 1 . B u t th e c o u r t s to p p e d
s h o r t o f h o ld i n g t h a t d a m a g in g N a t u r e is in itself a h a r m f u l use o f
p r o p e r t y b y b a s in g th e s ta te ’ s p o w e r to r e s t r ic t la n d to its n a t u r a l
uses o n a “ p u b l i c t r u s t d u t y ” to “ p r o t e c t a n d p re s e rv e th e s e w a te rs
f o r fis h in g , r e c r e a t io n and s c e n ic b e a u t y .” Id . at 18, 7 6 8. See a ls o
C a n d le s tic k P r o p e r t ie s , I n c . v . S an F r a n c is c o B a y C o n s e r v a tio n a n d
D e v e lo p m e n t C o m m is s io n , 11 C a l. A p p . 3 d 5 5 7 , 89 C a l. R p t r . 897
(1 9 7 0 ), a n d cases c it e d a t n o te 54 , c h a p . 3.
For cases in v o lv in g th e p r e s e r v a tio n of h is t o r ic a l d is t r ic t s , see
Bohannan v. C ity of San D ie g o , 30 C a l. App. 3d 416, 106 C a l.
R p t r . 333 ( 19 7 3 ) i M a h e r v . C i t y o f N e w O r le a n s , 2 5 6 L a . 131, 235
S o .2 d 402 (1 9 7 0 ); M c N e e le y v. B o a rd of Appeal of B o s to n , 35 8
M a ss. 94 , 261 N .E . 2 d 3 3 6 (1 9 7 0 ).
89. F o r e x a m p le , d u r i n g th e p a s t te n y e a rs th e r e h a s b e e n a g r e a t
d e a l o f le g is la t io n l i m i t i n g la n d use i n f lo o d p l a i n are as, e n c o u r a g e d
in p a r t b y th e F lo o d In s u r a n c e A c t o f 1968, 42 U .S .C . 4001 e t seq.
(1 9 7 0 ). W h i l e s o m e c o u r ts fin d such le g is la t io n c o n fis c a to r y — S ta te

v. J o h n s o n , 265 A . 2 d 711 (M e . 1 9 7 0 ); D o o le y v. T o w n P la n and
Z o n in g C o m m is s io n o f T o w n o f F a ir f ie ld 151 C o n n . 3 0 4 , 197 A . 2 d
770 (1 9 6 4 )— o t h e r re c e n t d e c is io n s u p h o ld th e ir c o n s t i t u t i o n a li t y :
T u r n e r v . C o u n t y o f D e l N o r t e , 24 C a l. A p p . 3 d 3 1 1 , 101 C a l. R p t r .
93 (1 9 7 2 ); T u r n p i k e R e a lt y C o . v . T o w n o f D e d h a m , 362 M a ss. 221,
2 8 4 N . E . 2 d 891 (1 9 7 2 ) c e r t.d e n . 4 0 9 U .S . 1108 (1 9 7 3 ).
9 0 . See, e .g ., S ta te v. J o h n s o n , 265 A .2d 711 (M e . 1 9 7 0 ); C om
m is s io n e r o f N a t u r a l R e s o u rc e s v . S. V o lp e & C o ., 3 4 9 M a ss. 104,
2 0 6 N . E . 2 d 6 6 6 (1 9 6 5 ); D o o le y v . T o w n P la n a n d Z o n in g C o m m ’ n ,
151 C o n n . 3 0 4 , 197 A . 2 d 7 7 0 (1 9 6 4 ); M o r r i s C o u n t y L a n d I m p r o v e
m e n t C o . v . P a r s ip p a n y T r o y H i l l s T o w n s h ip , 4 0 N . J . 5 3 9 , 193 A . 2d
232 0 9 63)-
9 1 . See, e .g ., L u t h e r a n C h u r c h v. C i t y o f N e w Y o r k , 35 N .Y . 2 d
121, 3 5 9 N . Y . S .2 d 7, 3 1 6 N .E . 2 d 3 0 5 (1 9 7 4 ) ( s t r i k i n g d o w n a h i s t o r i
c a l p r e s e r v a t io n p ro g ra m on th e b a s is o f Sa x V s e n t r e p r e n e u r i a l /
a r b i t r a l d i s t i n c t i o n d is c u s s e d a t p p . 5 0 - 5 2 s u p r a ) .
9 2 . 2 6 0 U .S . 3 9 3 (1 9 2 2 ).
93. T h e com m on la w is r i c h in la b e ls , so i t m a y b e b e s t t o c a ll
U s e r ’s r i g h t a le ase , a p r o f i t a p r e n d r e , o r a n e a s e m e n t.
9 4 . T h e “ u n d i v i d e d fe e r u l e ” h o ld s t h a t w h e n p r o p e r t y is ta k e n i n
w h ic h th e r e e x is ts a d iv e r s it y of in te r e s ts , c o m p e n s a tio n is to be
b a s e d o n th e v a lu e o f th e p r o p e r t y it s e lt r a t h e r t h a n o n th e s u m o f
th e v a lu e s of th e d iffe r e n t in te r e s ts . T h is a p p ro a c h , of c o u rs e ,
p l a i n l y r e fle c ts th e t h o u g h t p ro c e sse s o f a n O r d i n a r y O b s e rv e r. E x
c e p t io n s to th e “ u n d iv id e d fe e r u l e , ” h o w e v e r , a re s o m e tim e s to l
e r a te d i n e x t r e m e ly u n u s u a l c irc u m s ta n c e s . See P h i l i p N ic h o ls . T h e
Law o f E m in e n t D o m a in v o l. § § 1 2 .3 6 [1 ], [2 ]. For a m o d e rn ap
p r o a c h , see th e U n i f o r m E m i n e n t D o m a in C od e , §1012, a n d com
m e n t (1 9 7 5 ).
9 5 . F o r e x a m p le , th e t y p ic a l h o ld e r o f m i n i n g r ig h t s m a y b e f a r
less ris k -a v e rs e t h e n th e t y p ic a l o w n e r o f u n d i v i d e d p a rc e ls . I f t h is is
so, o w n e r s o f u n d i v i d e d p a r c e ls c o u ld s u p p o r t t h e i r c la im b e fo r e a
U t i l i t a r i a n P o lic y m a k e r b y a r e l a t i v e l y s t r o n g a p p e a l t o G e n e r a l U n
c e r t a in t y . S im ila r ly , a K a n t i a n P o lic y m a k e r m i g h t b e c o n v in c e d t h a t
th e p ro c e s s co sts i n v o lv e d i n c o m p e n s a tin g th o s e w i t h p a r t i a l in te r e s ts
a re h ig h e r t h a n th e s t a t u t e ’ s n e t b e n e fits , th e r e b y f a i l i n g to pass h is
b a s ic r e q u ir e m e n t f o r c o m p e n s a tio n .
I n m a k in g th e s e a r g u m e n ts I d o n o t su g g e s t t h a t th e y w i l l a lw a y s b e
d e c is iv e . In d e e d , I s u s p e c t t h a t th e “ p a r i t y p r i n c i p l e ” w i l l o f t e n se e m
q u it e j u s t if ie d f o r P o lic y m a k in g re a s o n s . M y p o i n t h e re is t h a t o n ly
a n O r d i n a r y O b s e r v e r w i l l c o n s id e r th e “ p a r i t y p r i n c i p l e ” a f u n d a
m e n t a l d o c t r in e r e q u i r i n g n o f u r t h e r j u s t if ic a t io n , w h ile i t w i l l h a v e
n o s u c h b a s ic s ta tu s in c o m m o n P o lic y m a k in g a p p ro a c h e s .
9 6 . T h i s is a g o o d p la c e t o n o te th e e x is te n c e o f a s e c o n d class o f
“ e a sy” cases, o f a v e r y d if f e r e n t k i n d , a r is in g u n d e r th e O r d in a r y
in te r p r e ta tio n o f th e ta k in g s c la u s e . T h i s class a ris e s n o t b e c a u s e o f
th e s u b d iv is io n o f o w n e r s h ip i n t o a d iv e rs e set o f u s e r b u n d le s , b u t
b e c a u s e o f th e e x is te n c e o f a b o n a fid e d is p u t e o v e r th e p r o p e r le g a l
o w n e r o f th e th in g in q u e s t io n . L a y m a n , f o r e x a m p le , m a y b e in
p o s s e s s io n o f p a r c e l U b u t a n o t h e r w ill- s o c ia liz e d p e rs o n , G o o d g u y ,
m a y h a v e g o n e to c o u r t to f u r t h e r h is c la im t h a t h e h a s a s u p e r io r
title to th e p r o p e r t y . A s w e h a v e seen (n . 15 s u p r a ) , th e e x is te n c e
o f s u c h a b o n a fid e d is p u t e m a y m a k e i t im p o s s ib le f o r a n y b o d y to
say t h a t h e k n o w s th e t r u e o w n e r w i t h o u t r e l y in g o n e x p e r t le g a l
a d v ic e , t h e r e b y t r a n s f e r r in g L a y m a n ’ s in t e r e s t i n t o th e c a te g o ry o f
“ le g a l p r o p e r t y ” d u r in g th e p e n d e n c y o f th e litig a tio n . It is tr u e ,
o f c o u rs e , t h a t L a y m e n ’ s o w n e r s h ip w i l l r e v e r t to “ s o c ia l p r o p e r t y ”
as s o o n as h is t i t l e is r e a ffir m e d in c o u r t . B u t w h a t i f th e s ta te ta k e s
p a r c e l U d u r i n g t h e p e n d e n c y o f th e L a y m a n - G o o d g u y l i t i g a t i o n , a t
a t im e w h e n n e it h e r s id e h a s s o c ia l p r o p e r t y r ig h ts ?
The answ er does not se e m o v e r ly d i f f ic u lt . If G o o d g u y ’ s c la im
a g a in s t L a y m a n is la t e r r e je c t e d in th e c o u r ts , L a y m a n s h o u ld be
tr e a te d as if h e w e re th e h o ld e r o f socia l p r o p e r t y a t th e t im e o f th e
t a k in g . T o h o ld o th e r w is e w o u ld p e r m i t th e s ta te to p r o f i t f r o m a
c la im t h a t i t it s e lf f o u n d to b e i n v a l i d . I t w a s b a d e n o u g h t h a t L a y
m an w a s o b lig e d to spend th e t im e and m o n e y to d e fe n d h im s e lf
a g a in s t G o o d g u y ’ s b o n a fid e (b u t in v a lid ) a s s e rtio n s ; it w o u ld be
u n c o n s c io n a b le f o r th e s ta te to e sca p e l i a b i l i t y s im p ly b e c a u s e G o o d -
g u y h a d ( m is g u id e d ly ) c h a lle n g e d L a y m a n ’ s t i t l e a t th e t im e o f th e
t a k in g . S im ila r ly , if th e c o u r ts la t e r u p h o ld G o o d g u y ’ s c la im , he
s h o u ld re c e iv e th e p a y m e n t t h a t w o u ld h a v e b e e n p l a i n l y h is i f th e
w in g s o f ju s t ic e had been s w if t e r . In s h o r t, i n cases o f b o n a fid e
d is p u t e , th e O b s e r v e r w o u ld o rd e r th e s ta te to pay c o m p e n s a tio n
in to a fu n d o n b e h a lf o f th e p a r t y e m e r g in g v ic t o r io u s a t th e e n d
o f th e p e n d in g litig a tio n . T h is is i n fa c t th e p r e v a ilin g p r a c tic e .
See g e n e r a lly P h i l i p N ic h o ls , T h e L a w o f E m in e n t D o m a in v o l. 2,
§ 5-2 [* ]•
97. See pp. 130-33 supra.
9 8 . See p p . 1 1 6 -1 8 s u p r a .
266 NOTES TO PAGES l6 o -6 l
9 9 . See p p . 1 1 8 -2 1 s u p r a .
100. T h e case w i t h w h ic h w e a re d e a lin g is a v e r y p u r e case o f le g a l
p ro p e rty . It is q u it e c le a r , h o w e v e r , t h a t th e r e a re m a n y r e l a t i o n
s h ip s t h a t a re h y b r i d c o m b in a t io n s o f b o t h s o c ia l a n d le g a l e le m e n ts .
T h u s, if th e com pany had been L a y m a n ’s te n a n t a n d c u s t o m a r ily
p a id r e n t , th e r e w o u ld b e s o m e e v id e n c e i n o b s e r v a b le s o c ia l r e a li t y
o f th e e x is te n c e o f a s p e c ia l r e l a t i o n s h i p b e tw e e n t h e c o m p a n y a n d
p a rc e l D, th o u g h th e p re c is e c h a ra c te r of th e r e la tio n s h ip w o u ld
r e m a in e n t i r e ly o b s c u re w ith o u t re c o u rs e to s p e c ia liz e d le g a l ex
p e r tis e . W e s h a ll n o t a t t e m p t , h o w e v e r , to tr a c e i n d e t a il th e r a n g e
o f p o s s ib le re s p o n s e s to th e s e h y b r i d fo r m s , c o n t e n t in g o u rs e lv e s w i t h
e l a b o r a t in g t h e s e rio u s m e t h o d o lo g ic a l d if f ic u lt ie s t h a t a ris e f r o m th e
O r d in a r y O b s e r v e r ’s c o n f r o n t a t i o n w ith a r e la tiv e ly p u re ty p e of
le g a l p r o p e r t y .
101. T h i s a r g u m e n t is m a d e , f o r e x a m p le , i n R ic h a r d A . P o s n e r,
E c o n o m ic A n a ly s is o f L a w 1 5 -6 (1973).
102. I t is n o t t r u e t h a t a ll p a p e r r e p r e s e n t in g p o te n tia l uses o f
th in g s s h o u ld p r o p e r l y b e cla s s e d as le g a l, r a t h e r t h a n s o c ia l, p r o p
e r ty . M o n e y a n d c h e c k s , f o r e x a m p le , a re f o r m s o f p a p e r t h a t h a v e
c o m e i n t o s u c h c o m m o n , e v e r y d a y use t h a t o r d i n a r y s o c ia l p r a c tic e s
a n d e x p e c t a t io n s h a v e been b u ilt a ro u n d th e m . T h u s , a l l s o rts o f
p e o p le r o u t i n e l y exchange t a n g ib le goods fo r m o n e y a n d p e rs o n a l
checks. L a y m e n a re t h e r e f o r e e n t i r e l y fa m ilia r w ith th e paper and
h a v e n o n e e d f o r le g a l a d v ic e i n o r d e r to u n d e r s t a n d its use.
It is p o s s ib le to suggest th r e e c r ite r ia th a t any fo rm of paper
m u s t m e e t i n o r d e r t o q u a l i f y as s o c ia l p r o p e r t y . F ir s t , i t m u s t b e as
s o c ia te d w i t h s o c ia l p r a c tic e s a n d e x p e c t a tio n s . S e c o n d , th e s e p r a c
tic e s and e x p e c t a t io n s m ust be g e n e ra l, and not c o n f in e d to a
s p e c ia liz e d i n s t i t u t i o n , s u c h as a s to c k e x c h a n g e . T h i r d , th e y m u s t
in v o l v e i n a f a i r l y d ir e c t w a y o b je c ts t h a t a re c le a r cases o f L a y m a n ’ s
th in g s ; t h a t is, i t m u s t b e p o s s ib le t o e x c h a n g e th e p a p e r f o r a t h in g ,
o r assum e c o n tr o l o f a th in g upon p r e s e n t a t io n of th e p a p e r, or
s o m e t h in g s im ila r . In o u r e x a m p le , th e c o m p a n y ’ s p a p e r d o e s n o t
m e e t th e f ir s t c r i t e r i o n . F o r e x a m p le s o f p a p e r s t h a t m e e t th e fir s t,
b u t n o t th e s e c o n d o r t h i r d c r i t e r i o n , see n . 15 s u p r a . F o r a b r i e f r e
m a r k o n th e e x is te n c e o f h y b r i d m ix t u r e s o f le g a l a n d s o c ia l p r o p
e r t y see n . 100 s u p r a .
103. I n c o n tr a s t, L a y m a n ’ s le g a l docum ent to p a rc e l U is s till
w o r th h a lf a m illio n d o lla r s a n d so h e w i l l n o t f i n d i t p o in t le s s to
c la im t h e t h i n g as h is . In d e e d , th e d o c u m e n t w o u ld b e w o r t h s o m e
NOTES TO PAGES 1 6 2 -6 4 267
t h i n g e v e n i f L a y m a n w e r e n o t o p e r a t in g a fa c to r y , f o r th e s u rfa c e
r ig h t s w o u ld s t i l l h a v e p o t e n t i a l uses. H e n c e L a y m a n c a n p o i n t to
n o le g a l t h i n g t h a t h a s b e e n ta k e n f r o m h im a n y m o re th a n he can
p o i n t to a s o c ia l t h in g .
104. A r t h u r A . L e ff, “ C o n t r a c t as T h i n g , ” 19 A m . U . L . R e v . 131
(1 9 7 0 ); R o b e r t C . C la r k , “ A b s t r a c t R ig h t s a n d P a p e r R ig h t s u n d e r
A r t i c l e 9 o f th e U n i f o r m C o m m e r c ia l C o d e ,” 84 Y a le L . J . 4 4 5 (1 9 7 5 );
see n . 102 s u p ra .
105. T h e p o s s ib ilit y o f th is s o rt o f e c le c tic d e c is io n m a k in g w a s
d is c u s s e d a t p p . 1 1 0 -1 2 s u p r a . A l t h o u g h i t seem s a n a t u r a l w a y o f
c o m b in in g th e S c ie n t if ic P o lic y m a k in g and O r d in a r y O b s e rv e r a p
p ro a c h e s , th e r e a re re a s o n s w h y O r d i n a r y ju d g e s w o u ld te n d to r e
je c t i t , s in c e a n y appeal to S c ie n t if ic P o lic y m a k in g , even fo r th a t
l i m i t e d class o f cases to w h ic h th e O r d i n a r y O b s e r v e r a p p r o a c h d o e s
n o t p r o v id e a c le a r a n s w e r, te n d s to u n d e r m in e c o n fid e n c e in th e
l a t t e r a p p r o a c h . T h i s is n o t to d e n y t h a t a n O r d i n a r y ju d g e m a y c o n
s is te n tly adopt th e e c le c tic m e th o d . But it is a ls o p o s s ib le th a t
e c le c tic is m w ill p ro v e u n s ta b le , m e r e ly a tr a n s itio n a l phase to a
f u l l e r a c c e p ta n c e o f S c ie n t if ic P o lic y m a k in g .
106. M r . J u s tic e H o lm e s e m p h a s iz e s at s e v e ra l p o in t s in h is
o p in io n th e fa c t t h a t th e m i n i n g r i g h t is p a c k a g e d in a d is t in c t iv e
w a y , s in c e i t “ is re c o g n iz e d in P e n n s y lv a n ia as a n e s ta te in la n d . ”
2 6 0 U .S . 3 9 3 , 4 1 4 ; see a ls o 4 1 2 , 4 1 5 . H e th u s su g g e sts th e s ig n ific a n c e
o f le g a l p a c k a g in g a n d d o c u m e n t a t io n in th e O r d in a r y in t e r p r e t a
t i o n o f t a k in g s la w w h e n a p p lie d to L a w y e r ’ s t h in g s . I n th e p a r t i c u
la r case, th e c o a l c o m p a n y h a d p r e v io u s ly o w n e d th e fe e a n d had
c o n v e y e d i t to a n o t h e r , r e s e r v in g to it s e lf th e e s ta te i n th e s u b ja c e n t
c o a l. I t is t h is e s ta te t h a t h a d b e e n r e n d e r e d v a lu e le s s .
107. T h e K o h le r A c t, P .L . 1198 (1 9 2 1 ), th e s ta tu te u n d e r w h ic h
th e s u it w a s b r o u g h t , fo r b a d e th e m in in g o f a n t h r a c it e coal if it
w o u ld ca u se t h e s u rfa c e to c o lla p s e o r s u b s id e , a n d if th e s u rfa c e
w as o c c u p ie d b y i n h a b it e d s tr u c tu r e s o r v a r io u s p u b l i c f a c ilit ie s s u c h
as s tre e ts o r p o w e r lin e s . B u t i t d i d n o t a p p ly to p a rc e ls o w n e d i n
fe e s im p le b y th e m in e o p e r a t o r . T h u s th e p a r it y p r o b le m , d is c u s s e d
a b o v e , o f t r e a t in g d i v i d e d a n d u n d iv id e d p a rc e ls d i f f e r e n t l y d i d n o t
a ris e , n o d o u b t m a k in g H o lm e s ’ s d e c is io n m u c h e a s ie r.
108. H o lm e s , o f c o u rs e , is o n e o f th e m o s t c o m p le x o f o u r le g a l
h e ro e s a n d it w o u ld be f o o lh a r d y to a tte m p t a c a p s u le s u m m a ry
h e re w h ic h to o k an a p p r o p r ia te ly s k e p t ic a l a ttitu d e to w a rd th e
p la t it u d e s t h a t so o f t e n m a s q u e ra d e as th e r e c e iv e d in te r p r e ta tio n
o f h is t h o u g h t . N o n e th e le s s , I t h i n k i t d o e s se e m c le a r t h a t H o lm e s ,
on th e le v e l of c o n s titu tio n a l in te r p r e t a t io n at le a s t, w as d e e p ly
s u s p ic io u s o f th e e f f o r t to in te r p r e t p r o b le m a t ic le g a l c o n c e p ts in
te r m s o f a C o m p r e h e n s iv e V ie w . W h e t h e r th is a n t i- S c ie n t if ic P o lic y
m a k in g t e n d e n c y is a ls o c h a r a c t e r is t ic o f H o lm e s ’ s o w n a f f ir m a t iv e
w o rk o n th e c o m m o n la w seem s to m e f a r m o r e p r o b le m a t ic , b e s t
re s e rv e d f o r d e t a ile d e x p lo r a t i o n . F o r s o m e c it a t io n s to th e le a d in g
w o r k o n H o lm e s , see n . 4 0 , c h a p . 7 i n f r a .
109. 2 6 0 U .S . 3 9 3 , 4 1 5 .
110. I b i d .
111. I b i d .
112. C o n d u c t in g m i n i n g o p e r a t io n s so as to ca u se th e c o lla p s e o f
i n h a b i t e d s u rfa c e la n d is, o f c o u rs e , a n u n s o c ia b le use o f o n e ’ s p r o p
e r ty . N o n e th e le s s , th is g e n e ra l p o in t d id not in H o lm e s ’ s m i n d
j u s t i f y th e p a r t i c u l a r s ta tu t e b e fo r e h im . F o r th is s ta tu t e o n ly a p p lie d
t o s it u a t io n s i n w h ic h th e o w n e r o f th e s u rfa c e r ig h t s , a t th e t im e o f
t h e p u rc h a s e , w a s o n n o t ic e t h a t th e o w n e r o f th e s u b s u rfa c e h a d
th e r ig h t of s u b s id e n c e . G iv e n th e s u rfa c e o w n e r ’ s c o n s c io u s as
s u m p t io n o f th e r is k , H o lm e s d i d n o t b e lie v e t h a t th e c o a l c o m p a n y
w a s a c t in g i n a n u n d u ly h a r m fu l w a y in e x e r c is in g its o p t i o n , a n d
so f o u n d th e t a k i n g o f its r ig h t s w i t h o u t O r d i n a r y j u s t i f i c a t i o n . See
id . a t 4 1 4
113. I n d e e d , J u s tic e B r a n d e is sees q u it e c le a r ly th e p a ra d o x in
v o lv e d in g r a n tin g le g a l p ro p e rty g re a te r p r o t e c t io n th a n s o c ia l
p r o p e r t y i n h is d is s e n t to H o lm e s ’ s o p in i o n , id . a t 4 1 9 .
114. I d . a t 4 1 6 .
115. T h e g re a t case h e r e is F le m m in g v. N e s to r, 363 U .S . 603
( i9 6 0 ) , w h e r e th e C o u rt u p h e ld th e c o n s titu tio n a lit y of a s ta tu te
d e n y in g S o c ia l S e c u r it y b e n e fits t o c e r t a in a lie n s d e p o r t e d f r o m th e
c o u n t r y . I n o r d e r to re a c h its d e c is io n , th e C o u r t f o u n d i t n e c e s s a ry
to h o ld t h a t S o c ia l S e c u r it y r ig h t s w e re n o t “ a c c r u e d p r o p e r t y r i g h t s ”
s u b je c t to ta k in g s a n a ly s is b u t m e r e ly w e r e e n t i t l e m e n t s t h a t c o u ld
be w ith d r a w n i f th e d e c is io n p a sse d a v e r y w e a k “ r a t i o n a l ju s t if ic a
t i o n ” d u e p ro c e s s te s t. A n d w h e n , m o r e r e c e n t ly , th e C o u r t h a s a f
f o r d e d g r e a t e r p r o t e c t io n to w e lf a r e r e c i p i e n ts , i t h a s d o n e so u n d e r
r u b r ic s l i k e d u e p r o c e ss a n d e q u a l p r o t e c t io n w h ic h h a v e p e r m i t t e d
i t to a v o id c o n f r o n t a t i o n w i t h th e t a k i n g s c la u s e . In d e e d , i t is o n ly T r i
cases i n v o lv i n g th e r ig h t to c o n t in u e d e m p lo y m e n t w ith a s ta te
agency th a t th e C o u rt speaks of “ p ro p e rty in t e r e s t s ” in s p e c ific
b e n e fits , a n d e v e n h e r e th e e x is te n c e o f a p r n p p r f y r i g h f Is u n d e r
s to o d to t r ig g e r due p ro c e s s h e a r in g r e q u ir e m e n t s r a th e r th a n a
dem and fo r co m p e n s a tio n under th e ta k in g s c la u s e . C o m p a re
P e r r y v . S in d e r m a n n , 4 0 8 U .S . 5 9 3 , 5 9 9 -6 0 3 (1 9 7 2 ) w i t h B o a rd of
R e g e n ts v . R o t h , 4 0 8 U .S . 5 6 4 , 5 7 6 - 7 8 (1 9 7 2 ).
In s a y in g a l l th is , I d o not m e a n to s u g g e s t t h a t a ta k in g s a n a l
ysis— o f e it h e r a S c ie n t if ic P o lic y m a k in g or O r d in a r y O b s e r v in g
k in d — w ill in e v ita b ly r e q u ir e th e in v a lid a tio n of th e c h a lle n g e d
g o v e rn m e n ta l a c tio n s . Far fro m it. N o n e th e le s s , m any w ill ra is e
s e rio u s issues, as s o o n as th e r e le v a n c e o f th e ta k in g s q u e s t io n is
p e r c e iv e d , as a r e v ie w o f c h a p s . 3 a n d 4 w i l l m a k e c le a r. R a t h e r t h a n
p r o v id i n g c o n c r e te a n sw ers h e re , h o w e v e r , I w is h to p r o v id e a n e x
p la n a t io n of w hy th e ta k in g s q u estio n is not even p e r c e iv e d by
c o u r ts or c o m m e n ta to rs . [B u t see C h a r le s A. R e ic h , “The N ew
P ro p e rty ,” 73 Y a le L . J . 7 3 3 , 7 8 5 (1 9 6 4 ), w h o m a k e s a p a s s in g s u g
g e s tio n th a t in te r e s ts in “ g o v e rn m e n ta l la rg e s s e ” be p ro te c te d by
th e ta k in g s c la u s e .] My a n s w e r is, o f c o u rs e , t h a t th e deep m e th
o d o lo g ic a l d if f ic u lt ie s an O r d in a r y O b s e r v e r e n c o u n te r s in concep
t u a l i z i n g th e “ le g a l p r o p e r t y ” p r o b le m m a k e e v e n r e f o r m is t ju d g e s
w a r y o f p u r s u in g a t a k in g s a n a ly s is so lo n g as th e y r e m a in c o m m it t e d
to O r d i n a r y O b s e r v in g .
116. The la w h e re c o n s is ts o f a s e rie s o f s c a tte re d d e c is io n s ca
p a b le o f a w id e r a n g e o f i n t e r p r e t a t i o n . T h u s , d e c is io n s a c c o r d in g
g re a t p r o t e c t io n to s h a r e h o ld e r s and c r e d it o r s — e .g., A r m s t r o n g v.
U n ite d S ta te s , 364 U .S . 40 ( i9 6 0 ) ; L o u is v ille J o in t S to c k Land
B a n k v. R a d f o r d , 295 U .S . 5 5 5 (1 9 3 5 ); B r o o k s - S c a n lo n v. R a ilr o a d
C o m m is s io n , 251 U .S . 3 9 6 (1 9 2 0 )— c a n be p a ir e d a g a in s t d e c is io n s
w h ic h c a ll th e e x t e n t o f c o n s t i t u t i o n a l p r o t e c t io n in to g re a t d o u b t,
e .g ., N e w H a v e n I n c lu s io n Cases, 39 9 U .S . 392 (1 9 7 0 ).
T h e N e w H a v e n case p r o v id e s a g r a p h ic e x a m p le o f th e p r e s e n t
s ta te o f u n c e r t a in t y . T h e re , th e S u p re m e C o u rt r e je c te d a bond
h o ld e r s ’ c la im t h a t a p la n f o r r e o r g a n iz in g th e r a i lr o a d u n d e r §77
of th e B a n k ru p tc y A c t, 11 USC §205, e ffe c te d a ta k in g of th e ir
p ro p e rty . T h e p la n r e q u ir e d t h a t th e N e w H aven c o n t in u e o p e r a
t io n s d u r i n g r e o r g a n iz a t io n p r o c e e d in g s t h a t c o n s u m e d n e a r ly se ve n
a n d a h a l f y e a rs . T h i s r e s u lt e d i n th e e r o s io n o f a t le a s t $ 6 0 m i l l i o n
o f th e v a lu e o f th e b a n k r u p t e s ta te . T h e C o u r t c o n c e d e d th e b o n d
h o ld e r s ’ loss, but h e ld it u n p ro te c te d by th e F ifth A m e n d m e n t:
“ W h ile th e r ig h t s o f th e b o n d h o ld e r s a re e n t i t l e d to re s p e c t, . . .
[ t ] h e y c e r t a in ly d o n o t d ic t a t e t h a t r a i l o p e r a t io n s v i t a l to th e N a
tio n b e je t t is o n e d d e s p ite th e a v a il a b i l i t y o f a fe a s ib le a lt e r n a t iv e . ”
I d . a t 4 9 2 . T h i s r e a s o n in g , i f b r o u g h t to its lo g ic a l c o n c lu s io n , w o u ld
e n t i r e ly d e n y c o n s t i t u t i o n a l p r o t e c t io n t o o w n e r s o f le g a l p r o p e r t y
l i k e b o n d h o ld e r s — f o r i t is th e essence o f th e ta k in g s c la u s e t h a t i t
d e m a n d s c o m p e n s a tio n e v e n t h o u g h th e s ta te ’ s i n t e r v e n t i o n is j u s t i
fie d by a v a lid p u b lic p u rp o s e . R e c o g n iz in g th is fa c t, th e C o u rt
m o v e d b e y o n d its a b s tr a c t p r o n o u n c e m e n t s to d is c o v e r s p e c ia l fe a
tu r e s o f th e N e w H a v e n ’s s i t u a t io n t h a t j u s t if ie d d e n y in g re c o v e r y ,
id . a t 4 9 2 - 9 3 . A n d m o r e r e c e n t ly , th e C o u r t h a s e x p l i c i t l y e x p re s s e d
c o n c e rn a b o u t th e ta k in g s p r o b le m ra is e d b y th e N ew H aven sce
n a r io , see R e g io n a l R a i l r o a d R e o r g a n iz a t io n A c t Cases, 4 1 9 U .S . 102,
>25-36 (>974)-
T h e le g a l u n c e r t a i n t y is m i r r o r e d i n a p a ir o f e x c e lle n t la w r e v ie w
a r tic le s o n th e s u b je c t. T h u s , s h o r t ly a f t e r th e N e w H a v e n case, a n
e x c e lle n t s t u d e n t N o t e a p p e a r e d c o n d e m n in g i t , see N o t e , “ T a k in g s
and th e P u b l ic In te re s t in R a ilr o a d R e o r g a n iz a t io n , ” 82 Y a le L . J .
1 004 (1 9 7 3 ). F u r t h e r w o r k , h o w e v e r , a n d a d i f f e r e n t p e r s p e c tiv e o n
th e cases, s u ffic e d to d e m o n s tra te th a t th e e x is t in g s ta tu s o f le g a l
p r o p e r t y is f a r m o r e u n c e r t a in t h a n its p a r tis a n s w o u l d a llo w . T h is ,
a t le a s t, h a s b e e n e s ta b lis h e d b e y o n d d o u b t b y a n o t h e r o u t s t a n d in g
s t u d e n t N o t e , “ C o n r a i l a n d L i q u i d a t i o n V a lu e : C r e d it o r s ’ a n d S h a re
h o ld e r s ’ E n t i t l e m e n t i n th e R e g io n a l R a i l R e o r g a n iz a t io n , ” 85 Y a le
L . J . 371 (1 9 7 6 ). U n f o r t u n a t e l y , w h ile t h is s e c o n d N o t e su cce e d s i n
d e s t r o y in g a n y illu s io n s g e n e r a te d b y its p re d e c e s s o r, i t f a ils e n t i r e ly
t o p r o p o s e a m e t h o d o lo g y b y w h ic h th e p r o p e r le g a l s ta n c e t o w a r d
le g a l p r o p e r t y m a y b e a s c e r ta in e d . I t is, o f c o u rs e , m y th e s is t h a t t h is
fa ilu r e is n o t a c c id e n t a l— t h a t e v e n th e m o st b r illia n t la w y e r w i l l
h a v e a n in s u p e r a b le ta s k d e a lin g w i t h th e p r o b le m u n le s s h e is w i l l
in g to a b a n d o n th e p re m is e s o f O r d i n a r y O b s e r v in g a n d ask h im s e lf
w h e t h e r c o m p e n s a t in g th e b o n d h o ld e r s w i l l s e rv e th e e ffic ie n c y a n d
ju s t ic e a im s t h a t p r o v id e th e f o u n d a t i o n f o r a S c ie n t if ic P o lic y m a k in g
i n t e r p r e t a t i o n o f th e c la u s e .
T h e c o lla p s e o f th e N e w H a v e n , o f c o u rs e , s e rv e d o n ly as a p r e
lu d e to th e c o lla p s e o f th e P e n n - C e n t r a l s y s te m a n d m u c h else b e
sid es. A n d it is o n ly now t h a t th e m e m b e r s o f a s p e c ia l R a ilr o a d
R e o r g a n iz a t io n C o u rt a re c o n fr o n tin g th e c o n s titu tio n a l i m p li c a
t io n s o f C o n g re s s ’s a t t e m p t to r e o r g a n iz e th e E a s te r n r a i lr o a d s yste m .
M o r e o v e r , i t is u n c e r t a in w h e t h e r J u d g e F r i e n d l y a n d h is c o lle a g u e s
o n th e s p e c ia l c o u r t w i l l u se t h e i r o p p o r t u n i t y to r e c o n s id e r th e c o n
s t i t u t i o n a l f o u n d a t io n s o f c o m p e n s a tio n la w , e s p e c ia lly as i t r e la te s
to le g a l p r o p e r t y . S u r e ly i t w o u l d be h a rd to im a g in e a case t h a t
b e t t e r illu s t r a t e s th e im p o r t a n c e o f th e u n d e r l y i n g issues a t s ta k e .
NOTES TO PAGES 1 66-69 271
117. C h a r le s A. R e ic h , “The N ew P ro p e rty ,” 73 Yale L.J. 73 3

(1964).
C h apter 7
1. T h i s e c le c tic is m in a r g u m e n t h a s b e e n a d is t in c t iv e f e a tu r e o f
th e c o m m o n l a w s in c e th e ^ f i d d l e A g e s . A s P ro fe s s o r M l l s o f l i p u l^
it , in c o n tr a s t to th e R o m a n la w y e r 's e f f o r t to o b t a in a C o m p r e h e n
s iv e V ie w o f th e corpus juris, m e d ie v a l E n g l i sh la w y e r s “ d i d n o t see
t h e la w as a syste m o f su b s t a n t iv e r u le s a t a l l . ” C o n c e n tr a tin g - o n
th e e l a b o r a t io n o f p le a d in g r u le s , “ th e y n e v e r lo o k e d u p to c o n s id e r
as a w h o le th e s u b s ta n tiv e s y s te m th e y d id not know th e y w e re
m a k in g . ” S. F. C . M ils o m , Historical Foundations of the Common
Law 32 ( i9 6 0 ) . At le a s t s in c e B la c k s to n e , h o w e v e r, th e A n g lo -
A m e r ic a n tr a d itio n h a s c o m e v e r y g r a d u a lly to r e d is c o v e r th e im
p o r t a n c e o f s u b s ta n tiv e la w in its o w n r ig h t. W it h in th is c o n t e x t ,
th e q u e s t io n we a re r a is in g is w h e t h e r th e s e h is t o r ic a l te n d e n c ie s
t o w a r d S c ie n t if ic P o lic y m a k in g h a v e n o w r e a c h e d a p o i n t a t w h ic h
th e m a in lin e of p r o fe s s io n a l d e v e lo p m e n t w ill set about s e lf
c o n s c io u s ly to d e v e lo p its o w n in d ig e n o u s f o r m o f S c ie n tific P o lic y
m a k in g , q u it e in d e p e n d e n t f r o m p r e v io u s e ffo r t s m a d e o n th e c o n
tin e n t o f E u ro p e . F o r so m e f u r t h e r c o m p a r a t iv e o b s e r v a tio n s , see
1111. 5 9 - 6 7 in f r a , a n d a c c o m p a n y in g te x t .
2. I n d e e d , th e a t t i t u d e o f S c ie n t if ic P o lic y m a k e r s t o w a r d O r d i n a r y
O b s e r v in g has not advanced a p p r e c ia b ly s in c e th e f ir s t E n g lis h -
A Dialogue Between
s p e a k in g P o lic y m a k e r , T h o m a s H o b b e s , w r o t e
a Philosopher and a Student of the Common Laws of England,
J. C ro p s e y , ed. (1 9 7 1 ). H o b b e s ’s b o o k e s ta b lis h e s th e in to le r a n t
m odel fo r S c ie n t if ic P o lic y m a k in g d e s c r ib e d in th e te x t. Thus,
H o b b e s d is c r e d its S ir E d w a r d C oke and th e c o m m o n la w m e th o d s
h e r e p re s e n ts b y e v e ry r h e t o r ic a l m e a n s a v a ila b le to h im . I d . a t, e .g .,
2 - 5 , 6, 1 6 -1 7 , 1 1 8 -2 0 . I n th e a lt e r n a t iv e , h e a tt e m p t s to e s ta b lis h
th a t th e e x is t in g le g a l r u le s a re c a p a b le of in te r p r e ta tio n and
c r it ic is m in th e l i g h t o f a S c ie n t if ic P o lic y m a k in g a p p r o a c h . I d . a t,
e .g ., 9 0 - 9 5 . I n d e e d , w h e r e th e c o m m o n la w r u le s se e m i n c o r r i g i b l y
in e p t , H o b b e s in v o k e s th e p o w e r s o f e q u it y t o m a k e g o o d th e l a w ’s
p r o m is e o f c o n f o r m it y to re a s o n . I d . a t 17, 80. S im ila r ly , h e in v it e s
th e s o v e re ig n to fra m e h is la w s s e lf-c o n s c io u s ly in th e lig h t of
H o b b e s ia n p o lic y s c ie n c e . I d . a t 30.
3. See R o n a ld C o a s e ’s c la s s ic a r t ic le , “The P r o b le m of S o c ia l
C o s ts ,” 3 /. Law & Econ. 1 ( i9 6 0 ) . A lo n g w ith th e s im u lt a n e o u s
p u b lic a tio n o f G u id o C a la b r e s i’ s e a r ly w r it in g s , t h is essay s ig n a le d
th e ris e o f th e id e a t h a t e c o n o m ic t h e o r y c o u ld p r o v id e th e b a s is f o r
a c o m p r e h e n s iv e and s c ie n t if ic fo rm of le g a l a n a ly s is c a p a b le of
illu m in a tin g a l l s o rts o f s u b s ta n tiv e q u e s t io n s r a t h e r th a n s e r v in g
m e r e ly as a s p e c ia liz e d t e c h n iq u e u s e fu l f o r th e u n d e r s t a n d in g o f a
fe w le g a l fie ld s w ith o b v io u s e c o n o m ic c o n te n t, lik e a n titr u s t or
r e g u la t e d in d u s t r ie s . F o r a s e n s itiv e , y e t s u c c in c t, t r e a t m e n t o f th e
r o le s e c o n o m ic t h e o r y n o w p e rfo rm s ^ in le g a l a n a ly s is , see A l v i n K .
K l e v o r i c k . “ L a w a n d E c o n o m ic T h e o r y : A n E c o n o m is t 's V ie w , ” P a
p e rs a n d P r o c e e d in g s o f th e A m b Iic a f^ -E € c u lQ J I^ c A s s o c ia tio n , t >5 Am.
Econ. Rev., Papers and Proceedings 237 (1 9 7 5 ).
4. 3 0 4 U .S . 64 (1 9 3 8 ). T h e Erie case i n v o lv e d th e q u e s t io n
w h e t h e r f e d e r a l o r s ta te la w g o v e rn e d an o th e r w is e g a r d e n - v a r ie t y
a c c id e n t in v o lv in g a tre s p a s s o n r a i lr o a d p ro p e rty . In c o n s id e r in g
\ t h is q u e s t io n , th e la w y e r w a s r e q u ir e d to d e fin e (a ) th e d iffe r e n c e
b e tw e e n s u b s ta n tiv e a n d p r o c e d u r a l la w ; (b ) th e d iffe r e n c e b e tw e e n
ju d g e - m a d e la w and le g is la t iv e e n a c tm e n ts ; and (c) th e d iffe r e n c e
b e tw e e n n a t i o n a l a n d s ta te r e s p o n s ib ilit ie s i n a fe d e r a l s y s te m . T h e s e
! w e re p r e c is e ly th e issues t h a t p r e o c c u p ie d th e i n t e l l e c t u a l l y d o m in a n t
j g ro u p o f a c a d e m ic la w y e r s r i s i n g to m a t u r i t y d u r i n g th e 1940s a n d
j 1950s— a g ro u p I have e ls e w h e re d e s c r ib e d as th e Legal P ro c e s s
S c h o o l; see m y “ Law and th e M o d e rn M in d ,” 103 Daedalus 119
( 19 7 4 )* J u s tic e B r a n d e is ’ s m a j o r i t y o p i n i o n in Erie w as p a r tic u la r ly
i m p o r t a n t f o r th e s e s c h o la rs b e c a u s e i t seeks t o r e s o lv e th e s e q u e s
t io n s o n th e le v e l o f c o n s t i t u t i o n a l la w , th e r e b y p e r m i t t i n g p r o fe s
s io n a l le g a l a n a ly s is to p r o c e e d w i t h o u t a n u n d u e c o n c e r n w i t h th e
v a g a rie s o f th e p o l i t i c a l p ro c e s s .
I n s a y in g t h a t Erie is lo s in g its s y m b o lic c e n t r a lit y , I d o n o t m e a n
to s u g g e s t t h a t th e d e c is io n — a n d th e c o u n tle s s j u d i c i a l a n d a c a d e m ic
u tte r a n c e s it h a s s p a w n e d — is th re a te n e d w ith o b liv io n . Erie w ill
r e m a in a s ta r o f th e f ir s t m a g n it u d e in th e le g a l u n iv e r s e ; i t has
m e r e ly ce a s e d t o b e th e P o le S ta r.
5. T h i s is o n ly to say t h a t s e rio u s s c h o la rs in c r e a s in g ly p e r c e iv e
a n in te lle c tu a l o b lig a tio n to d e a l w it h th e C o a s e th e o r e m ( a n d th e
S c ie n t if ic P o lic y m a k in g i t r e p re s e n ts ) i n one way or another. To es
t a b lis h s y m b o lic c e n t r a l it y ( i n th e la w a t le a s t), i t is e n o u g h t o i n
d ic a t e th a t a p r o b le m is ta k e n s e r io u s ly by a b ro a d ra n g e of
s c h o la rs r a t h e r t h a n t h a t a l l a n s w e r th e p r o b le m i n a s im ila r f a s h io n .
6. O v e r th e pa st decade, le g a l a n a ly s ts in f lu e n c e d by e c o n o m ic
m o d e ls h a v e h a d a n im p a c t o n a w id e v a r ie t y o f fie ld s i n a d d i t io n
to th o s e , l i k e a n titr u s t a n d p u b lic u tility r e g u la t io n , i n w h ic h th e
NOTES TO PAGE 170
273
re le v a n c e o f e c o n o m ic r e a s o n in g h a s lo n g b e e n c o n c e d e d . T h e y h a v e
by now p ro d u c e d a va st lite r a tu r e w h ic h g ro w s w i t h th e p u b lic a
tio n o f e a c h n e w issu e o f s u c h r e v ie w s as th e Journal of Law and
Economics, th e Journal of Legal Studies, and th e Bell Journal of
Economics, as w e ll as th e s ta n d a r d s t u d e n t - r u n le g a l p e r io d ic a ls . F o r
e x a m p le s o f th e a p p lic a t io n o f t h is m o d e o f a n a ly s is to a v a r ie t y o f
le g a l p r o b le m s , see th e w o r k s c it e d a t c h a p . 3, n n . 3 9 - 4 3 s u p ra .
7. C o n s id e r , f o r e x a m p le , th e r e c e n t essay o n th e F o u r t h A m e n d
m ent by P ro fe s s o r A n t h o n y A m s te r d a m , p e rh a p s o u r m o s t d is tin
g u is h e d s c h o la r - p r a c t it io n e r . F o r A m s te r d a m , th e f u n d a m e n t a l q u e s
t i o n is:
w h e th e r th e A m e n d m e n t s h o u ld b e v ie w e d as a c o lle c t io n of
p r o t e c t io n s of a t o m is t ic s p h e re s of in t e r e s t of i n d i v i d u a l is t i c
c itiz e n s or as a r e g u la t io n o f g o v e rn m e n ta l c o n d u c t. D oes it
s a fe g u a rd my p e rs o n and your house a n d her p a p e rs a n d his
e ffe c ts a g a in s t u n r e a s o n a b le se a rc h e s a n d s e iz u re s ; o r is i t essen
t i a l l y a r e g u la t o r y c a n o n r e q u i r i n g g o v e r n m e n t t o o r d e r its la w
e n fo r c e m e n t p r o c e d u r e s in a fa s h io n t h a t k e e p s us c o lle c t iv e ly
s e c u re in our p e rs o n s , h o u s e s , p a p e rs a n d e ffe c ts , a g a in s t u n
r e a s o n a b le s e a rc h e s a n d se izure s? “ P e rs p e c tiv e s o n th e F o u rth
A m e n d m e n t,” 58 Minn. L. Rev. 3 4 9 , 367 (1 9 7 4 ) (e m p h a s is i n
o r ig in a l) .
A s t h is e x c e r p t sug ge sts, A m s t e r d a m ’ s fir s t, “ a t o m is t ic ” a p p ro a c h

c a n b e lik e n e d to o n e g e n e r a te d b y th e O r d i n a r y O b s e r v in g s ty le o f
a n a ly s is , w h ile h is s e c o n d , “ r e g u la t o r y ” a p p r o a c h seem s r o u g h ly c o n
s is te n t w ith S c ie n t if ic P o lic y m a k in g p re m is e s . E v e n m o re s t r ik in g ,
A m s te r d a m fin d s t h a t w h ile th e F o u r t h A m e n d m e n t is p r e s e n tly c o n
s tr u e d a lo n g " a t o m i s t i c ’ ' ( O r d i n a r y o b s e r v e r ) lin e s , i t is n e c e s s a ry to
m o v e to a “ r e g u la t o r y ” ( S c ie n t if ic P o lic y m a k in g ) m o d e l ” [ i ] n a n age
w h e r e o u r s h r i n k i n g p r iv a c y a n d l i b e r t y w o u ld o th e r w is e b e e n jo y
a b le o n ly a t th e s u ffe ra n c e o f e x p a n d in g , m i l i t a r i s t i c a l l y o r g a n iz e d
b o d ie s o f p r o fe s s io n a l p o lic e . ” I d . a t 4 3 9 .
8. F o r a p a r t i c u l a r l y s t r i k i n g essay t h a t u n if ie s s e e m in g ly d is p a r a te
d o c t r in e s b y t a k in g a r e l a t i v e l y e x p l i c i t S c ie n tific P o lic y m a k in g a p
p r o a c h , see J o s e p h G o ld s t e in , “ F o r H a r o ld L a s s w e ll: S o m e R e fle c
t io n s o n H um an D i g n i t y , E n t r a p m e n t , I n f o r m e d C o n s e n t, a n d th e
P le a B a r g a in , ” 84 Yale L.J. 6 8 3 (1 9 7 5 ). T h e v o lu m in o u s w r it i n g s o f
P ro fe s s o rs L a s s w e ll and M cD ougal and th e ir f o llo w e r s c o n t a in
S c ie n tific P o lic y m a k in g a n a ly s e s o f a w id e v a r ie t y o f p r o b le m s . See,
f o r e x a m p le , M y r e s S. M c D o u g a l a n d F l o r e n t i n o P . F e lic ia n o , Law
and Minimum World Public Order (1 9 6 1 ); M y e rs S. M c D o u g a l,
H a r o ld D . L a s s w e ll, a n d I v a n Law and Public Order in
A . V la s ic ,
Space (1 9 6 3 ); M y r e s S. M c D o u g a l a n d W i l l i a m B u r k e , The Public
Order of the Oceans (1 9 6 2 ); W . M ic h a e l R e is m a n , Nullity and Re
vision (1 9 7 1 ).
9. See, f o r e x a m p le , R ic h a r d A . P o s n e r, Economic Analysis of Law
9 8 - 1 0 2 (1 9 7 3 ) a n d “ T h e E c o n o m ic A p p r o a c h t o L a w , ” 5 3 Tex. L.
Rev. 7 5 7 , 7 6 3 - 6 4 (1 9 7 5 ); G u i d o C a la b r e s i a n d A . D o u g la s M e la m e d ,
“ P r o p e r t y R u le s , L i a b i l i t y R u le s , a n d In a lie n a b ility : O n e V ie w of
th e C a t h e d r a l, ” 85 Harv. L. Rev. 1089, 1 1 2 4 -2 7 (1 9 7 2 ).
10. A s a lr e a d y n o t e d , th e c r i t i q u e o f c o n t e m p o r a r y le g a l d o c t r in e
h a s b e e n w id e r a n g in g . I n a d d it io n t o th e w o r k s c it e d a t c h a p . 3,
The Deterrent Effect of Capital
n n . 3 9 - 4 3 s u p r a , see: Is a a c E h r lic h ,
Punishment: A Question of Life or Death [ W o r k i n g P a p e r N o . 18,
C e n t e r f o r E c o n o m ic A n a ly s is o f H u m a n B e h a v io r , 1 9 7 3 ; p u b lis h e d
in a c o n d e n s e d fo r m in 65 Am. Econ. Rev. 3 9 7 (1 9 7 5 )] as w e ll as a
c r i t i c a l d is c u s s io n o f E h r lic h 's p a p e r a p p e a r in g a t 85 Yale L.J. nos. 2
and 3 (1 9 7 5 -7 6 ); n u m e ro u s a r tic le s , c o n s titu tin g a m e t h o d o lo g ic a l
r e v o lu t io n i n s u b s ta n tiv e a n d p r o c e d u r a l c r i m i n a l la w , a p p e a r in g i n
th e Journal of Legal Studies; R o b e r t C . E llic k s o n , “ A l t e r n a t iv e s to
Z o n in g : C o v e n a n ts , N u is a n c e R u le s and F in e s as L a n d U se C o n
t r o ls , ” 4 0 U . Chi. L. Rev. 681 (1 9 7 3 ); a n d o f c o u rs e P r o fe s s o r S a x .
11. R i c h a r d A. P o s n e r, “A T h e o ry of N e g lig e n c e , ” 1 J. Leg.
Studies 29 (1 9 7 2 ); Economic Analysis of Law 9 8 -1 0 2 ; and “The
E c o n o m ic A p p r o a c h t o L a w , ” 53 Tex. L. Rev. 7 5 7 , 7 6 3 - 6 4 (1 9 7 5 );
a n d , o f c o u rs e , M ic h e lm a n 's w o r k on ju s t c o m p e n s a tio n is o f th is
g e n e r a l c h a r a c te r .
12. See, f o r e x a m p le , G u id o C a la b r e s i, n . 9 s u p r a , a t 1 1 0 2 -5 , a n d
The Costs of Accidents 2 9 3 - 3 0 0 (1 9 7 0 ).
13. I t s h o u ld n o t b e im a g in e d t h a t th e e c o n o m ic a n a ly s is o f la w
c o n s titu te s e it h e r th e o n ly — o r th e f ir s t — e f f o r t a t S c ie n t if ic P o lic y
m a k in g . A s I h a v e a lr e a d y in d ic a t e d , n . 26, c h a p . 1, th e g r e a t e v e n t
o f th e m o d e r n p e r io d is th e d is in t e g r a t io n o f th e “ C la s s ic a l” f o r m o f
S c ie n t if ic P o lic y m a k in g d o m in a n t b e fo r e th e G r e a t D e p r e s s io n . S i m i
l a r l y , a s e c o n d g r o u p o f s c h o la rs w r i t i n g a l t e r t n e S e c o n d W o r l d W a r
a ls o h a d c o m p r e h e n s iv e a m b it io n s as th e y s y s te m a t i c a l l y s t u d ie d s o m e
t h i n g th e y c a lle d th e L e g a l P ro ce ss. I n d e e d , m y p r e s e n t e f f o r t t o d e
v e lo p a “ S c ie n t if ic ” t h e o r y o f j u d i c i a l r o le o w e s m u c h to th is k i n d o f
275
w o r k . F o r those w h o w is h to trace this s t r a n d o f c o n t e m p o r a r y P o l i c y

m a k i n g , I i n c l u d e a s a m p le o f L e g a l P r o c e s s w o r k : L o n L . F u ller,
The Law in Quest of Itself ( 1 9 4 0 ) ; P a u l F r e u n d , Understanding the
Supreme Court ( 1 9 4 9 ) ; E d w a r d H . L e v i , An Introduction to Legal
Reasoning ( 1 9 4 9 ) ; H e n r y M . H a r t , J r . , a n d H e r b e r t W e c h s l e r , The
Federal Courts and the Federal System ( 1 9 5 3 ) ; A l e x a n d e r M . B i c k e l
a n d H a r r y H . W e l l i n g t o n , “ L e g i s l a t i v e P u r p o s e a n d the J u d i c i a l P r o
cess: T h e L i n c o l n M i l l s C a s e , ” 7 1 Haru. L. Rev. 1 ( 1 9 5 7 ) ; H e n r y M .
H a r t , J r . , a n d A l b e r t M . Sa ck s, The Legal Process: Basic Problems
in the M aking and Application of Law ( 1 9 5 8 ) ; H e n r y M . H a r t , J r . ,
"T h e Su prem e C ourt, 1958 Term , Forew ord: The T im e C hart of
the J u s t i c e s , ” 7 3 Haru. L. Rev. 8 4 ( 1 9 5 9 ) ; H e rb e rt W ech sler, “ T o
w a r d s N e u t r a l P r i n c i p l e s o f C o n s t i t u t i o n a l L a w , ” 7 3 Haru. L. Rev. 1
(1959); K arl L le w e lly n , The Common Law Tradition: Deciding
Appeals ( i 9 6 0 ) ; A l e x a n d e r M . B ic k e l, The Least Dangerous Branch
( 1 9 6 2 ) ; R o n a l d M . D w o r k i n , “ T h e M o d e l o f R u l e s , ” 3 5 U. Chi.
L. Rev. 1 4 ( 1 9 6 7 ) ; H e r b e r t L . P a c k e r , The Lim its of the Crim inal
Sanction ( 1 9 6 8 ) ; H a r r y H . W e l l i n g t o n , Labor and the Legal Process
( 1 9 6 8 ) ; L o u i s L . J a f f e , English and American Judges as Lawmakers
( 1 9 6 9 ) . A n d , o f c o u rse , th e w r i t i n g s o f the M c D o u g a l - L a s s w e l l school,
see n. 8 s u p r a , r e p r e s e n t a n o t h e r s ig n ific a n t P o l i c y m a k i n g effort.
14. See R ic h a r d A . Ep stein , “ A T h e o r y o f S tr ic t L i a b i l i t y , ” 2 J.
Leg. Studies 1 5 1 ( 1 9 7 3 ) ; “ D e fe n s e s a n d S u b s e q u e n t P le a s in a S y s
te m o f S t r ic t L i a b i l i t y , ” 3 J. Leg. Studies 1 6 5 ( 1 9 7 4 ) ; “ I n t e n t i o n a l
H a r m s , ” 4 J. Leg. Studies 3 9 1 ( 1 9 7 5 ) ; G e o r g e P. F le t c h e r , “ F a ir n e s s
and U t i l i t y in T o r t T h e o r y , ” 8 5 Haru. L. Rev. 5 3 7 (1972). For a
s im ila r effo rt in the a r e a o f c r i m i n a l la w , see G e o r g e P. F le t c h e r ,
“The R i g h t D e e d fo r the W r o n g R e a s o n : A R e p l y to M r . R o b i n
s o n ,” 2 3 U.C.L.A. L. Rev. 2 9 3 ( 1 9 7 5 ) .
15. “ C o m m o n Law R u le s and C o n stitu tio n a l D o u b le Standards:
S o m e N o t e s o n A d j u d i c a t i o n , ” 8 3 Yale L.J. 2 2 1 ( 1 9 7 3 ) -
16 . Id . at 2 2 3 - 2 4 .
1 7 . W e l l i n g t o n ’s c o m m i t m e n t to O b s e r v i n g — th a t is, to the p r o p o-
sitio n th a t th e u l t i m a t e e n d o f le g a l a n a ly s is is the id e n t if ic a t io n o f
ru le s th a t best su p p o rt d o m in a n t s o c i a l e x p e c t a t i o n s ^ - i s first suj^
g e s te d b y h is c l a i m th a t a r g u m e n t s f r o m principle a re always a d
m issib le in ju d icial reaso n in g w h ile argum ents from policy a re
a d m is s ib le o n ly under sp e c ia l c ir c u m s ta n c e s . The m e t h o d o lo g i c a l
sig n ific a n c e o f this b l a n k e t e n d o r s e m e n t ^>f p r i n c i p l e c a n b e seen in
276 NOTES TO PAGE 1 7 1
th e s t r o n g l i n k W e l l i n g t o n seeks to fo r g e b e t w e e n j u d i c i a l p r i n c ip le s
a n d t h e l l o m i n a n t c o n v e n t i o n al m o r a l i t y :
I h a v e c l a im e d , in effect, th a t w h e n d e a l i n g w i t h l e g a l p r i n c i
p le s a c o u r t m u s t ta k e a m o r a l p o i n t o f v i e w . Y e t I d o u b t th a t
o n e w o u l d w a n t to sa y t h a t a c o u r t is e n t i t l e d o r r e q u i r e d to
assert its m o r a l p o i n t o f v i e w . U n l i k e th e m o r a l p h il o s o p h e r ,
th e c o u r t is r e q u i r e d to assert ours. . . . A n d th a t is w h y w e
m u s t b e c o n c e r n e d w i t h c o n v e n t i o n a l m o r a l i t y , f o r it is t h e r e
th a t s o c ie t y ’ s set o f m o r a l p r i n c i p l e s a n d id e a ls a re lo c a te d . (Id .
at 2 4 4 ; e m p h a s i s in o r ig in a l .)
B u t it is n o t so c l e a r w h e t h e r W e l l i n g t o n is a n O r d i n a r y o r S c i e n
tific O b s e r v e r . T h e a n s w e r d e p e n d s o n h is a c c o u n t o f h o w j u d g e s
a re to r e c o g n iz e c o n ve n tio n a l m o rality. A n d on th a t p o in t he is
s o m e w h a t a m b i g u o u s . H e r e je c ts “ b e h a v i o r a l s c ie n c e m e t h o d o l o g y ”
in f a v o r o f “ th e m e t h o d o f p h i l o s o p h y , ” i.e., “ to l iv e in [co n ven
t io n a l m o r a l it y ] , to b e c o m e se n s itiv e to it, e x p e r i e n c e w i d e l y , r e a d
e x t e n s iv e l y , a n d r u m i n a t e , reflect, a n d a n a l y z e s it u a t io n s t h a t seem
to c a ll m o r a l o b l i g a t i o n s in t o p l a y . ” I d . at 2 4 6 . W h e t h e r th e m e t h o d
o f p h i l o s o p h y r e q u ir e s a S c i e n t if ic o r a n O r d i n a r y v o c a b u l a r y , h o w
e v e r, d e p e n d s o n th e f o r m o f the p h i l o s o p h i c a l a n a ly s is e m p l o y e d .
18. A lt h o u g h W e llin g to n b e lie v e s th a t p r i n c i p l e s a r e th e t y p e o f
j u s t if ic a t io n m o s t s u it a b l e to j u d i c i a l r e a s o n i n g in c o m m o n l a w a d
j u d i c a t i o n , h e a r g u e s th a t p o lic ie s m a y p r o p e r l y b e i n v o k e d if th e y
a r e w i d e l y r e g a r d e d as s o c ia lly d e s ir a b le a n d a r e “ n e u t r a l , ” i.e., d o
n o t p l a c e w i t h o u t g o o d r e a s o n d is p r o p o r t i o n a t e b u r d e n s o n a p a r
t i c u la r s e g m e n t o f so cie ty. I d . at 2 3 5 - 4 1 .
19. W e llin g t o n p ro vid es a general fo rm u la tio n o f h is v i e w s o n
co n stitu tio n a l a d ju d ic a tio n : “ T he scope o f ju d ic ia l re v ie w sh o u ld be
s h a r p l y r e s t r ic t e d w h e n th e p r i m a r y j u s t if ic a t io n f o r th e e x e r c is e o f
ju d icI a U p o w e r is a co n stitu tio n al p o licy; it sh ou ld be sear c h i n g
w h e r e th ^ p r i m a r y jn s r itir a tin n jjs a p r i n c i p l e .” (I d . a t 2 6 7 . T W h i l e
th is f o r m u l a t i o n p r e s u p p o s e s th a t p o lic ie s a re sometimes a d m is s ib le
in c o n s t i t u t i o n a l l a w , th e e ssa y n e v e r p r e s e n t s a t r e a t m e n t , p a r a l l e l
to th a t p ro vid ed fo r com m on law a d ju d ica tio n , see n. 18 supra,
d e f i n i n g the g e n e r a l c o n d i t i o n s u n d e r w h i c h p o lic ie s a re a d m is s ib le
in c o n s t i t u t i o n a l i n t e r p r e t a t i o n . I t s h o u ld n o t b e i n f e r r e d f r o m this
absence o f t h e o r e t ic a l d e ve lo p m e n t, how ever, th a t W e l l i n g t o n be
l ie v e s th a t p o l i c y a r g u m e n t p l a y s a m i n o r ro le in c o n s t i t u t i o n a l la w .
To th e c o n t r a r y , h e t h i n k s it p l a i n th a t b o t h th e F i r s t a n d F o u r t h
NOTES TO PAGES 1 7 1 - 7 2 277
A m e n d m e n t s ^ a re (an d s h o u ld be?) p rin cip ally ju s t ified o n p o l ic y

grounds. Id . at 2 6 8 - 7 1 . U n fo rtu n ately, n o v ie w s are e x p r e s s e d o rT
the c o m p e n s a t io n cla u se.
20. W h i l e U t i l i t a r i a n a r g u m e n t s a re a c o m m o n k i n d o f “ in s tr u
m e n t a l ju s tific a tio n fo r a r u l e , ” th e y a re n o t the o n l y k in d . R a t h e r
th a n fo c u s in g u p o n th e felicific c o n s e q u e n c e s o f a ru le , o n e m a y
in s te a d stress its i m p a c t o n the f u t u r e d e v e l o p m e n t o f o t h e r v a lu e s
— lik e v ir t u e , e n ligh te n m en t, and so forth— not r e a d i l y r e d u c ib l e
(e ve n in the last a n a ly s is) to h a p p in e s s . T o put the p o in t in the
standard p h il o s o p h i c a l way, U tilita ria n ism is o n l y o ne sp ecies o f
consequentialism, n o t the e n t i r e g e n u s . W e l l i n g t o n ’ s d e fin itio n o f
p o l ic y in te rm s o f instrum eTTtalTsm ~( 5 y ~ w h i c l i ~ h e —seem s to m ean
c o n s e q u e n t i a l i sm) d o e s n o t, th e n , m a r k o u t a c h a r a c te r is tic possessed
exclu siv ely by U tilit a r ia n argu m en ts— th o ugh it is p l a i n th a t he
g e n e r a l l y h a s th e m in m i n d i i f l i i s d is c u ss io n o f p o licie s.
2 1. W e llin g to n does ad m it th a t K a n tia n P o licym a k in g m ay in
d ir e c t l y affect th e c o n t e n t o f p r i n c i p l e s b y in f l u e n c in g c o n v e n t i o n a l
m o r a lit y . “ W e m a y all t h i n k s o m e w h a t d if f e r e n t ly a b o u t so m e asp ects
o f m o r a l it y , fo r e x a m p l e , a f t e r R a w l s . ” 8 3 Yale L.J. 2 2 1 , 28 0 . B u t it
c a n n o t p r o v i d e i n d e p e n d e n t ju s t ific a t io n s fo r j u d i c i a l d e cisio n s. F o r
W e l l i n g t o n is at g r e a t p a i n s to d e n y th a t p r i n c i p l e s c a n b e d e r i v e d
fr o m n o n - in s t r u m e n t a l C o m p r e h e n s i v e V i e w s . I n d e e d , h e re fe rs to
such th e o rie s as “ p h i l o s o p h e r ’ s m o r a l i t y , ” b y w a y o f c o n tr a s t w i t h
c o n v e n t i o n a l m o r a l it y , w h ic h is the so u rc e o f p r in c ip le s . S ee, e.g., id.
at 28 0 , 2 8 5 . S i n c e p o lic ie s are b y d e fin it io n in s tr u m e n t a l, K a n t i a n i s m
has n o p l a c e at all in the ju s t ific a t io n o f d ecisio n s.
T h e case is v e r y d iffe r e n t w it h re s p e c t to u t ilit a r ia n is m . W e l l i n g
ton f r e q u e n t l y c a lls p o lic ie s “ effic ien c y-ty p e ju s tific a tio n s .” And as
his d is cu ssio n o f, fo r e x a m p l e , the F o u r t h A m e n d m e n t m a k e s clear,
he is n o t t h i n k i n g o f e c o n o m i c efficien cy b u t r a t h e r s o m e t h in g v e r y
m u c h lik e B e n t h a m ’ s U t i l i t y . Id . at 2 5 8 - 6 1 , 2 7 0 - 7 2 . I t fo llo w s, then ,
th a t w h i l e K a n tia n p h i l o s o p h y m a y o n l y affect the l a w indirectly,
through its i m p a c t u p o n c o n v e n t i o n a l m o r a lit y , U t i l i t a r i a n p h ilo s
o p h y c a n se rve as a direct so u rc e o f la w , i n d e p e n d e n t o f c o n v e n
tio n a l m o r a l it y , so l o n g as it m e e ts the (u n s p e c ifie d ) tests fo r the
j u d i c i a l a d m i s s i b i l it y o f p o l i c y a r g u m e n t s in c o n s t it u t i o n a l la w . I n
short, W e l l i n g t o n h a s in fa c t c r e a t e d a p r i v i l e g e d p o s itio n fo r U t i l i
ta r ia n is m in legal argum en t— a rather s u r p r is i n g c o n c lu s io n fo r
s o m e o n e w h o , o n the s u r fa c e , seem s to b e l i m i t i n g “ p o l i c y ” a r g u m e n t s
on b e h a l f o f “ p r i n c i p l e . ” U n f o r t u n a t e l y , h o w e v e r , W e l l i n g t o n is so
co n ce rn e d w ith re a c h in g an a cc o m m o d a tio n b etw ee n O b s e rv in g a n d

U t i l i t a r i a n P o l i c y m a k i n g th a t h e d o e s n o t r e c o g n iz e th a t, i m p l ic it l y ,
h e h a s a c c o r d e d B e n t h a m a le g a l statu s th a t h e d e n i e s to K a n t .
2 2 . “ H a r d C a s e s ,” 8 8 Harv. L. Rev. 1 0 5 7 ( 1 9 7 5 ) .
2 3 . Id . at 10 6 4.
24 . C h a p . 1, p p . 1 2 - 1 5 s u p r a .
25. D w o rk in m a k e s n o r e f e r e n c e to W e l l i n g t o n ’ s essay, a l t h o u g h
it w a s p u b l i s h e d a lm o s t tw o y e a r s b e f o r e h is o w n ; n o r d o e s h e a t
t e m p t to d e a l w i t h W e l l i n g t o n ’ s d i s t in c t io n b e t w e e n p r i n c i p l e s a n d
p o lic ie s .
26 . 8 8 Harv. L. Rev. 1 0 5 7 , 1 0 5 9 ( e m p h a s is s u p p l ie d ) .
27. D w o rk in attem pts to d is c h a r g e this fo rm id a b le task at
pp. 10 6 7-70 o f h is essay. S i n c e n o th in g in th e p r e s e n t d is c u ss io n
depends on h is success, I s h a ll n o t attem pt an e va lu a tio n o f h is
argum en ts.
2 8 . I n h is d is c u s s io n o f p a r t i c u l a r p o lic ie s , D w o r k i n sp e a k s m o r e
o f a p p e a l s to “ e c o n o m i c e ffic ie n c y ” th a n to th e q u i t e d if f e r e n t n o t i o n
o f so c ia l u t i li t y . N e v e r t h e le s s , D w o r k i n p l a i n l y re c o g n iz e s th e e x i s
te n c e o f o t h e r p o licy argum en ts, h a v in g to d o w i t h e q u a lity and
m i l i t a r y s tr e n g th (8 8 Harv. L. Rev. 1 0 5 7 , 1 0 6 8 ) , w h i c h d o n o t h a v e
a n o b v i o u s r e l a t i o n s h i p to o r d i n a r y n o t io n s o f e c o n o m i c e fficien cy;
m o r e o v e r , h is d is c u s s io n o f th e L e a r n e d H and test in th e l a w of
torts, id. a t 1 0 7 5 - 7 7 , e m p l o y s th e e x p r e s s i o n s “ e c o n o m i c e ffic ie n c y ”
a n d “ c o ll e c t iv e u t i l i t y ” a lm o s t i n t e r c h a n g e a b l y . I n sh ort, th e r e c a n
b e n o d o u b t th a t U t i l i t a r i a n i s m is th e s u b s t a n t iv e p h i l o s o p h y th a t
D w o r k i n seeks to c a p t u r e in h is f o r m a l d e fi n it io n o f p o l ic y . F o r a
c r it ic is m o f th e c o m m o n t e n d e n c y to m a k e “ e c o n o m i c e ffic ie n c y ” a
synonym of “ c o ll e c t iv e u tility ,” see my essay, “On the R o le of
E c o n o m i c A n a l y s i s in P r o p e r t y L a w , ” in B . A . A c k e r m a n , ed., Eco
nomic Foundations of Property Law , v i i - x v i ( 1 9 7 5 ) .
S o f a r as K a n t i a n i s m is c o n c e r n e d , w h i l e D w o r k i n ’ s a t t e m p t a t a
f o r m a l d e fi n it io n o f p r i n c i p l e is v e r y o b s c u r e in d e e d (see 8 8 Harv.
L . Rev. 1 0 5 7 , 1 0 6 7 - 7 0 ) , c o n c r e t e d isc u ssio n s, t o g e t h e r w i t h h is in t e r
e s t in g a n a l y s is o f r ig h t s in “ T h e O r i g i n a l P o s i t i o n ,” 4 0 U. Chi. L.
Rev. 5 0 0 , 5 1 9 - 2 0 ( 1 9 7 0 ) , m a k e it p l a i n th a t h e u n d e r s t a n d s K a n t i a n
n o t io n s of in d iv id u a l d ign ity to p ro vid e a s u it a b le (perhap s the
m o st s u ita b le ? ) s o u r c e o f p r in c i p l e s .
2 9 . 8 8 Harv. L. Rev. 1 0 5 7 , 1 0 6 4 . S e e also “ T h e O r i g i n a l P o s i t i o n , ”
n. 2 8 s u p r a , a t 5 0 9 - 1 9 , w h e r e D w o r k i n d iscusses c o m p e t i n g m o d e l s o f
c o n s is t e n c y in m o r a l r e a s o n i n g , g i v i n g s i m il a r l y sh o rt s h r ift to in-
tu it io n is m .
NOTES TO PAGES 174~75 279
30 . 8 8 Harv. L. Rev. 1 0 5 7 , 1 0 6 7 -
3 1 . I d . at 10 6 0 .
3 2 . W h i l e at o n e p o i n t D w o r k i n d o e s a l l o w r u le U t i l i t a r i a n i s m as
an a d m is s ib le p o s s ib ility , id at 1 0 7 2 - 7 3 , e v e n h e r e h e d r a w s th e l in e
at a n y j u d i c i a l i n q u i r y in t o the U t i l i t a r i a n ju s tific a tio n o f the a p p l i
c a tio n o f the r u le to a p a r t i c u l a r case o r class o f cases.
It s h o u l d be n o te d , m o r e o v e r , th a t D w o r k i n ’s “ r ig h ts thesis” c o n
ta in s a n u m b e r o f e s c a p e h a t c h e s w h ic h , if o p e n e d w i d e e n o u g h , w i l l
p e r m it an o rd erly re tr e a t to a less e x p o s e d , if less c o m m a n d i n g ,
p o s itio n . F irst, D w o rk in e x p r e s s l y l im it s his thesis to “ c i v i l ” cases,
a n d w h e t h e r the t a k in g s c la u s e fits u n d e r this la b e l is fa r f r o m clear.
S e e his b r i e f d is cu ssio n o f the m a t t e r at p p . 1 0 7 7 - 7 8 . S e c o n d , w h il e
an a p p lic a tio n of the thesis to co m m o n -la w a d ju d ica tio n seem s
m o d e r a t e l y s t r a i g h t f o r w a r d , this c a n n o t be s a id o f its a p p l i c a t i o n to
s t a t u t o r y in t e r p r e t a t i o n a n d c o n s t it u t i o n a l l a w — fields w h i c h are fa r
m o r e i m p o r t a n t in c o n t e m p o r a r y j u d i c i a l w o r k . T h u s , in his illu s
t r a t iv e d is cu ssio n o f the w a y a m o d e l j u d g e , H e r c u le s , w o u l d d e p l o y
the “ r ig h ts thesis,” we find th a t H e r c u l e s is p e r m it t e d to e m p l o y
s o m e t h i n g c a lle d th e principle o f fe d e r a lis m , id. at 1 0 8 6 , w h i c h seem s
p l a i n l y to q u a l i f y as a policy in D w o r k i n ’s th e o ry , a n d also to c o u n
t e n a n c e th e p o s s ib ilit y th a t the p u r p o s e o f the F ir s t A m e n d m e n t ’ s
g u a r a n t e e o f r e l ig io u s fr e e d o m is the r e d u c t io n o f “ so cial te n s io n o r
d i s o r d e r ,” id. at 1 0 8 4 — a g o a l w h ic h , o n c e a g a i n , seem s m o st p l a u s i
b ly ju s tifie d o n g r o u n d s o f c o ll e c t iv e w e l f a r e . S e e R o n a l d D w o r k i n ,
“ On Not P ro secu tin g C iv il D i s o b e d i e n c e ,” in J. F e in b e rg and
H . G r o s s , ed ., Philosophy of Low 1 9 7 , 2 0 4 ( 1 9 7 5 ) .
O f c o u r s e it m a y be said th a t j u d g e s a r e b o u n d b y principles (?)
o f in s t i t u t io n a l s u b o r d i n a t i o n to i m p l e m e n t c o n s t it u t i o n a l a n d s ta tu
to ry p o lic ie s if su ch a step is i n t e n d e d b y the s u p e r o r d in a t e a u t h o r
ity. But this r e q u ir e s one to unravel the m y s te r y of le g is la tiv e
i n t e n t io n as a n e c e s s a ry co n d itio n of u n d e rsta n d in g the “ r ig h ts
th esis.” M o r e o v e r , it a d m i t s the p o s s ib ilit y th a t v a st a rea s o f c u r r e n t
A m erican law — perhaps by fa r the m o st i m p o r t a n t — are a p p r o p r i
a t e ly governed today by s e lf-c o n s c io u s ju d i c i a l r e c o u r s e to p o licy
r e a s o n in g . W h i l e this a p p a r e n t e s c a p e h a t c h is at least as i m p o r t a n t
as the first o n e , it d o e s n o t se em a v a i l a b l e in a d is cu ssio n o f c o m p e n
sa tio n l a w — sin ce w e h a v e seen th a t r e c o u r s e to the i n t e n t io n o f the
F r a m e r s d o e s n o t p r o v i d e s ig n ific a n t h e l p in c h o o s in g b e t w e e n o n e
o r a n o t h e r f o r m o f le g a l t h o u g h t .
3 3 . J u s t as D w o r k i n ’s a b s tr a c t a r g u m e n t s m o v e to o q u i c k l y to a
K a n tia n c o n c lu s io n , so too d o es his d is c u ss io n o f p a r t i c u l a r le g a l
28 o NOTES TO PAGE 1 7 5
d o c tr in e s . T h u s , D w o rk in sin g le s o u t Learn ed H a n d ’s w e l l - k n o w n
a p p r o a c h to n e g l i g e n c e l a w as r e p r e s e n t i n g o n e o f th e “ f e w ” p o t e n
tia l co u n ter-e xam p les to h is thesis a n d seeks to d e m o n s t r a t e th a t
H a n d ’s d o c t r i n e is in fa c t b a s e d o n a p r i n c i p l e r a t h e r t h a n a p o l ic y ;
8 8 Harv. L. Rev. 1 0 5 7 , 1 0 7 7 - 7 8 . D w o r k i n r e c o g n iz e s , o f co u rse, th a t
H a n d ’s test seem s a t first g l a n c e to b e ju s tifie d b y a p o l ic y , sin ce it
e x p l i c i t l y m a k e s a d e c is io n in a n e g l i g e n c e a c t io n t u r n o n w h e t h e r
it advances the c o ll e c t iv e good by re d u cin g th e o ve rall co st of
d a m a g i n g so c ia l in t e r a c t i o n . B u t h e m a k e s a d is t in c t io n b e t w e e n th e
s u b s t a n c e o f th e t h e o r y a n d th e l a n g u a g e in w h i c h it is e x p r e s s e d .
H e a r g u e s th a t a l t h o u g h th e t h e o r y is e x p r e s s e d in e c o n o m i c term s,
it is a f o r m u l a b y w h i c h to d e t e r m i n e the p r o p e r K a n t i a n o u t c o m e
in n e g l i g e n c e cases. T h e p r o b l e m fo r K a n t i a n i s m in s u c h cases is to
b a l a n c e th e r e s p e c t d u e th e p l a i n t i f f b y th e d e f e n d a n t w i t h th e d e
f e n d a n t ’s l i b e r t y and au to n o m y. “ It is n a t u r a l , p articu larly w h e n
e c o n o m i c v o c a b u l a r y is in f a s h io n , to d e fin e th e p r o p e r b a l a n c e [ b e
t w e e n r e s p e c t a n d l ib e r t y ] b y c o m p a r i n g th e s u m o f th e u t ilit ie s o f
these tw o p a r t ie s u n d e r d if f e r e n t c o n d i t i o n s . ” I d . at 1 0 7 6 .
N o w it is c e r t a i n l y p o s s ib le th a t a K a n t i a n j u d g e m i g h t a t t e m p t to
sta te h is d e c is io n s in e c o n o m i c term s. I n d e e d , as I h a v e s u g g e s te d at
c h a p . 4, n. 11 s u p r a , th e l a n g u a g e o f w e l f a r e e c o n o m ic s m a y t u r n
o u t to b e a m o st s u it a b l e o n e f o r e x p r e s s i n g so m e v e r s io n s o f the
K a n t i a n C o m p r e h e n s i v e V i e w . B u t n o n e o f this ju s tifies D w o r k i n ’ s
c o n c l u s io n th a t th e L e a r n e d H a n d test is in fact a r u l e d e r i v e d f r o m
K a n tia n p rin cip les a n d expressed in e c o n o m i c term s. In o r d e r to
sh ow th a t, D w o rk in m ust articu late th e K a n tia n p rin cip les m ore
c le a r ly , e x p l a i n h o w K a n t i a n a r g u m e n t s a r e to b e t r a n s l a t e d in t o a n
e c o n o m i c v o c a b u l a r y (if th a t is n o t t h e ir n a t u r a l m o d e o f e x p r e s s io n ) ,
a n d p r o v i d e a d e t a i l e d d e r i v a t i o n o f the L e a r n e d H a n d test. I t is
s u r e ly n o t e n o u g h to assert th a t s in c e a r u le d e r i v e d f r o m K a n t i a n
p r i n c i p l e s may b e e x p r e s s e d in eco n o m ic term s, it f o ll o w s t h a t a
g iv e n r u le expressed in e co n o m ic te r m s is d e r i v e d f r o m K a n t i a n
p r i n c i p l e s . D w o r k i n ’s c l a i m is p a r t i c u l a r l y r e m a r k a b l e sin ce U t i l i t a r
ia n a u t h o r s h a v e in fa c t s u c c e s s fu lly tr e a t e d H a n d ’ s c a l c u l u s w i t h i n
t h e ir l a r g e r f r a m e w o r k : see, e.g., R i c h a r d A . P o s n e r , “ A T h e o ry of
N e g l i g e n c e , ” 1 / . Leg. Studies 2 9 ( 1 9 7 2 ) ; G u i d o C a l a b r e s i a n d J o n T .
H ir s c h o f f , “ T o w a r d a T e s t f o r S t r i c t L i a b i l i t y in T o r t s , ” 8 1 Yale L.J.
1055 (1972). And a u th o rs of a m ore K a n tia n p e r s u a s io n have
d o u b t e d th e p r o p r i e t y o f th e H a n d - t y p e c o s t-c a lc u lu s : see G e o r g e P.
F l e t c h e r , “ F a ir n e s s a n d U t i l i t y in T o r t T h e o r y , ” 8 5 Harv. L. Rev.
537 ( W 2 )- M o r e o v e r , e v e n if D w o r k i n w e r e to d e m o n s t r a t e th a t the
H a n d test is b a se d o n p r i n c i p l e , r a t h e r th a n p o lic y , h e w o u l d h a v e
g o n e o n l y a v e r y sm a ll w a y t o w a r d e s t a b li s h in g the “ r ig h ts th esis”
as the best d e s c r ip t iv e a c c o u n t o f e x i s t i n g j u d i c i a l p r a c tic e . R a t h e r
th a n b e in g an e x tra o rd in a rily rare e xce p tio n to the g e n e r a l ru le ,
se lf-c o n sc io u s reso rt to ( s e e m in g ly ) U t i l i t a r i a n a r g u m e n t s is q u i t e a
c o m m o n p h e n o m e n o n in m o d e r n A m e r i c a n case-law .
3 4 . It s h o u ld b e r e c a lle d , h o w e v e r , th a t D w o r k i n d o es a l l o w fo r
e x c e p t i o n a l s it u a t io n s in w h i c h U t i l i t a r i a n P o lic y m a k e r s , if n o t O b
servers, m a y be p e r m it t e d th e ir say; see n o te 3 2 s u p r a . D w o r k i n h a s
n o t, u n f o r t u n a t e l y , d e fin e d the p re cise c h a r a c t e r o f these e x c e p t i o n a l
s it u a t io n s w it h the c a r e th e y d e se rv e .
3 5 . S e e R i c h a r d A . P o s n e r , “ A n E c o n o m i c A p p r o a c h to L a w , ” 5 3
Tex. L. Rev. 7 5 7 , 7 7 7 - 7 8 ( 1 9 7 5 ) , a n d Economic Analysis of Law 6 - 8 ,
n. 9 s u p r a .
3 6 . W h i l e o u r m o d e l o f O r d i n a r y a d j u d i c a t i o n w o u l d r e q u ir e r e
v is io n b e fo r e it c o u l d p l a u s i b l y b e e m p l o y e d b y a le g is la to r o r o t h e r
n o n j u d i c i a l officer, it n e v e r t h e le s s seem s lik e ly th a t a n e n t ir e f a m i l y
o f m o d e ls c o u ld b e g e n e r a t e d to g u i d e the O r d i n a r y O b s e r v e r in o n e
o r a n o t h e r official task. I n d e e d the O r d i n a r y j u d g e d e p ic t e d h e r e h a s
so m e i m p o r t a n t r e s e m b l a n c e s to C h a r l e s L i n d b l o m ’ s d escr ip t io n o f
a / p u b l l c a d m i n i s t r a i o r ^ w h o refu ses to ta k e a C o m p r e h e n s iv e V i e w o f
his p ro b le m and in s te a d responds in te r s tjtia 1 l y _to t jie _ p a rticu la r
fo rce s at p l a y in 1m en viro n m e n t fjpp C h a r le s J L L i n d b l o m , “ T h e
S c i e n c e o f \ \ U id d iT n g T h r o u g h / ” 1 9 Pub. Adm in. Rev. 7 9 (1959);^
L i n d b l o m , The Intelligence of Democracy ( 1 9 6 5 ) . A n a l o g o u s m o d e ls
o f d e c i s i o n m a k i n g h a v e b e e n d e v e l o p e d b y a g r o u p o f d is t in g u is h e d
sc h o la rs a ss o c ia te d w i t h the C a r n e g i e - M e l l o n School o f P u b lic A d
m i n i s t r a t io n . Se e , fo r e x a m p l e , O l i v e r E . W i l l i a m s o n , Markets and
Hierarchies ( 1 9 7 5 ) ; J a m e s G . M a r c h a n d H e r b e r t A . S i m o n , Organi
zations ( 1 9 5 8 ) ; H e r b e r t A . S i m o n , “ T h e o r i e s o f B o u n d e d R a t i o n a l - ’■
it y ,” in C . M c G u i r e a n d R . R a d n e r , eds., Decision and Organization
16 1 (19 7 2 ).
Sim ila rly, it is not d ifficu lt to fin d a n a l o g ie s to th e S c ie n tific
P o lic ym a k in g m ode o f a d ju d ica tio n in the m o r e g e n e r a l lit e r a tu r e
o n p u b l i c c h o ic e a n d d e c is io n . I n d e e d , th e _effo rt b y e c o n o m is ts a n d
system s a n a ly s t s to r e v o l u t i o n i z e g o v e r n m e n t a l d e c i s i o n m a k i n g p r o
c e d u r e s in th e n a m e o f S c ie n t if ic P o l i c y m a k i n g is o n e o C t E e m o st
strTking fe a t u r e s o f c o n t e m p o 7 a r y ~ p u b r ic a d m l n L t i T t l o ^ y T h r ^ m ^ ve-*
m erit in tu r n h a s e n g e n d e r e d " a ilroUglvtful lit e r a t u r e d e a l i n g w i t h
282 NOTES TO PAGES 177“ 79
t h e c o n f l i c t i n g f o r m s o f d e c is io n , w h i c h is o f th e first i m p o r t a n c e to
l a w y e r s t r y i n g to m a k e sense o f th e a n a l y t i c a l te n s io n s in t h e ir o w n
c r a ft. See, in a d d i t i o n to th e w o r k s a l r e a d y c ite d , D a v i d B r a y b r o o k e
and C h a rle s E. L in d b lo m , Strategy for Decision ( 1 9 6 3 ) ; J o h n D.
S te in b ru n e r, The Cybernetic Theory of Decision 3-150 (1974);
R i c h a r d N e l s o n , The M oon and the Ghetto: A n Appreciation of the
Unbalanced Performance of the American P o litica l Economy ( 1 9 7 5 ) ;
L a u r e n c e H . T r i b e , “ P o l i c y S c i e n c e : A n a l y s i s o r I d e o l o g y ? ” 2 P h il &
Pub. Affairs 6 6 ( 1 9 7 2 ) .
37. See L u d w ig W ittg e n ste in , Philosophical Investigations,
G. E. M. Anscom be and G. von W rig h t, eds. (196 9); H anna F.
P i t k i n , Wittgenstein and Justice 1 - 1 6 8 ( 1 9 7 2 ) . S u p p o r t m a y also b e
fo u n d am ongst recent European w riters in th e p h en o m e n o lo g ica l
t r a d it io n . Se e , e.g., A lfre d Sch utz and Thom as Luckm an, The
Structures of the L ife W orld, tr. R . M . J a u e r a n d H . T . E n g e l h a r d t ,
J r - (■ 9 7 S>-
3 8 . Se e , for e x a m p le , A. J. A y e r , Language, Truth and Logic,
1 0 2 - 2 0 ( 1 9 4 6 ) ; C h a r l e s L . S t e v e n s o n , Facts and Values 1 0 - 3 1 , 3 2 - 5 4 ,
1 3 8 - 5 2 ( ‘ 9 6 3 )-
(
39. M ic h a e l O akeshott is, perhaps, th e m ost im p o rta n t con
t e m p o r a r y e x p o n e n t o f s u c h v ie w s . S e e h is b o o k , On Hum an Con
duct ( 1 9 7 5 ) a r,d h is c o ll e c t io n of essays, Rationalism in Politics
(1962).
40. S e e Y o s a l R o g a t , “ T h e J u d g e as S p e c t a t o r , ” 3 1 U. Chi. L . Rev.
2 1 3 ( 1 9 6 4 ) ; “ M r . J u s t i c e H o l m e s : A D is s e n t i n g O p i n i o n , ” 1 5 Stan. L.
Rev. 3, 2 5 4 ( 1 9 6 2 - 6 3 ) . W h i l e a “ sc ie n tific s o c ia lis t ” o f th e M a r x i s t
sort also sees th e l a w m e r e l y as a r e fle c tio n o f th e d o m i n a n t so c ia l
fo rc e s o f th e tim e , h e w o u l d p r o b a b l y n o t b e so q u i c k to a g r e e w i t h
H o l m e s th a t l a w m a k e r s s h o u ld t h e r e f o r e b e e x p e c t e d to a d o p t a n
O r d i n a r y O b s e r v e r 's a p p r o a c h to th e d is p u t e s th e y m u s t r e s o lv e . F o r
it is at lea st p o ss ib le , I s u p p o s e , f o r th e M a r x i s t to v i e w S c ie n t ific
P o l i c y m a k i n g as a n i d e o l o g i c a l r e s p o n s e to th e i n c r e a s i n g l y b u r e a u
c r a tiz e d s t r u c t u r e s o f la t e c a p i t a li s m , and so a n a p p ro p riate law
m a k i n g f o r m f o r p r e s e n t - d a y A m e r i c a . F o r a c o n t e m p o r a r y e ffo rt to
m a r r y M a r x i s m a n d S t r u c t u r a l i s m in a m a n n e r c o n s is te n t w i t h this
i n t e r p r e t a t i o n o f M a r x i s m , see N i c o s P o u la n t z a s , Political Power and
Social Classes 3 2 5 - 6 1 ( 1 9 7 3 ) .
41. F o r th e a n a l o g y b e t w e e n th e t h e o r y o f O r d i n a r y a d j u d i c a t i o n
and i m p o r t a n t s tr a n d s in th e p u b l i c a d m i n i s t r a t i o n l it e r a t u r e , see
n. 3 6 s u p r a a n d th e so u rc e s c it e d th e r e in .
4 2 . T h i s is n o t to say th a t O r d i n a r y O b s e r v i n g is the o n l y f o r m
o f t h o u g h t th a t is c o n s is te n t w i t h th e r e t r o a c t iv e a p p l i c a t i o r T o f law sl
So~ f a r as^tTie X a n t T aii is c o n c e r n e d , th e fa ct T h a t B d id n o t re c o g n iz e
his d u t y to r e s p e c t A w il l n o t g e n e r a l l y serve as a ju s tific a tio n fo rT
o r e v e n a n e x c u s e o f, B ’s b r e a c h so l o n g as the j u d g e is c o n v i n c e d
th a t B d id in fa c t d e p r i v e A o f his d i g n i t y as a n a u t o n o m o u s b e in g .
I n d e e d , it is p e r f e c t l y p o s s ib le th a t B ’ s f a il u r e to r e c o g n iz e his d u t y
o n l y e x a c e r b a t e s Ins w r o n g .-------------- - ~
In con trastT reTf£rarriYely~ se em s fa r m ore p ro b le m a tic fro m a
U tilita ria n p o in t o f view . G iv e n the h ig h p r e m i u m p l a c e d o n sta
b i l i t y a n d p r e d i c t a b i l i t y in a b r o a d r a n g e o f le g a l m a tte rs, it c o u l d
w e ll be th a t n et b e n e fits w i l l o f t e n b e m a x i m i z e d if d e c is io n m a k e r s
a p p l y n e w ru le s p r o s p e c t i v e l y in th e n a m e o f r e d u c i n g u n c e r t a i n t y
costs. S e e N o t e , “ P r o s p e c t iv e O v e r r u l i n g a n d R e t r o a c t i v e A p p l i c a t i o n
in the F e d e r a l C o u r t s , ” 71 Yale L.J. 9 0 7 ( 1 9 6 2 ) ; G u i d o C a l a b r e s i ,
“ R e tro activ ity : Param ount Pow ers and C o n tractu al C h a n g e s,” 71
Yale L.J. 1 1 9 1 ( 1 9 6 2 ) . I n d e e d , th e rise o f n o n - r e t r o a c t i v e r u l in g s in
m odern A m erican law is o n e o f the m o st s t r ik in g s y m b o ls o f the
in c r e a s in g c u r r e n c y o f U t i l i t a r i a n P o l i c y m a k i n g .
43. W h ile P rofessor A le x a n d e r B i c k e l see m e d to b e e v o l v i n g in
O r d i n a r y O b s e r v i n g d ir e c t i o n s b e f o r e his d e a th , h e w a s d e n i e d a n
a d e q u a t e o p p o r t u n i t y to d e v e l o p a fu ll a c c o u n t o f his m a t u r e v ie w s .
F o r the m o st c o m p l e t e e x p r e s s io n o f his I a t e F T h o u g h t , see The Mor-
ality of Consent ( 1 9 7 5 ) a n d The Supreme Court and the Idea of
Progress ( 1 9 7 0 ) .
4 4 . See, fo r e x a m p l e , M i l t o n F r i e d m a n , Capitalism and Freedom
2 2 - 3 6 (1962).
4 5 . It s h o u ld be e m p h a s iz e d th a t I am not m ak in g the s tr o n g
c l a im th a t a S c i e n t if ic P o licym a k er m u st necessarily a c c e p t the
v a l i d i t y o f a c r it ic a l state. I n d e e d , I su sp e c t th a t su ch a s t r o n g c la im
c a n n o t be d e f e n d e d . It seem s m o r e p la u s ib le , h o w e v e r , to su sp ect
that all tho se w h o a c c e p t the c r itic a l state m u s t n e c e s s a rily p r e fe r
S c ie n tific P o l i c y m a k i n g (at least o n the le v e l o f c o n s t it u t i o n a l i n
t e r p r e t a t io n ) — t h o u g h I a m n o t a t p r e s e n t su fficien tly c o n fid e n t e v e n
o f this w e a k e r c l a i m to d o m o r e th a n in v it e o th e rs to c o n s id e r it
c r itic a lly .
4 6. I n e m p h a s i z i n g the c e n t r a l i m p o r t a n c e o f d e v e l o p i n g a set o f
c r ite r ia b y w h i c h to i d e n t i f y the C o m p r e h e n s i v e V i e w th a t p r e v a i ls
in a g iv e n le g a l system , I d o n o t w a n t to su g g est th a t a S c ie n tific
P o l i c y m a k e r is n e c e s s a r ily c o m m it t e d to a f o r m o f “ l e g a l p o s i t iv i s m ”
284 NOTES TO PAGES 1 8 2 - 8 3
(an e x p r e s s io n w hose p r e c is e m e a n in g I have never got en tirely

clea r). N o r d o I w is h to a r g u e th a t th e P o l i c y m a k e r ’ s d e c is iv e c r i
te r io n m ust n e c e s s a rily refer e xclu siv ely to th e p e d ig r e e , rather
th a n the s u b s ta n c e , o f th e C o m p r e h e n s i v e V i e w (if this is w h a t th e
le g a l p o s i t iv i s t ’s c l a i m is a ll a b o u t ) . I m e r e l y w is h to in sist th a t the
j u d g e m u s t d e v e l o p some way o f p l a u s i b l y d e f e n d i n g h i m s e l f a g a in s t
th e c h a r g e o f p e r s o n a l id i o s y n c r a s y in h is se le c tio n o f th e C o m p r e
h e n s i v e V i e w th a t h e h a s i m p u t e d to th e le g a l system . T h i s is n o t to
d e n y th a t th e re a re m a n y p o s s ib le w a y s o f i m p u t i n g a C o m p r e h e n
sive V ie w to a le g a l system , and th a t an ad equ ate P o lic ym a k in g
j u r i s p r u d e n c e w i l l e x p l a i n w h y its w a y is th e best. B u t I d o n o t w is h
to lim it d is c u ss io n of this issue by r e s t r i c t in g its s c o p e by so m e
f o r m a l d e v ic e b e f o r e it h a s f a i r l y b e g u n . F o r i m p o r t a n t w o r k w h i c h
is r e l e v a n t to th e c o n t i n u i n g d is c u ss io n , see H a n s K e ls e n , General
Theory of Law and State 1 1 0 - 2 3 , t r - A n d e r s W e d b e r g ( 1 9 4 5 ) , a n d
The Pure Theory of Law 1 9 3 - 2 2 1 , tr. M a x K n i g h t ( 1 9 7 0 ) ; H . L . A .
H a r t , The Concept of Law, c h a p . 6 ( 1 9 6 1 ) ; J o s e p h R a z , The Con
cept of a Legal System, c h a p . 8 ( 1 9 7 0 ) . R o n a l d D w o r k i n h a s a t t a c k e d
th e p o s s ib il it y o f a r u le o f r e c o g n i t i o n in “ T h e M o d e l of R u le s,”
35 U. Chi. L . Rev. 1 4 , 4 0 - 4 6 ( 1 9 6 7 ) a n d “ S o c ia l R u l e s a n d L e g a l
T h e o r y , ” 8 1 Yale L.J. 8 5 5 , 8 6 8 - 8 1 ( 1 9 7 2 ) .
4 7 . A f t e r r e a d i n g m o r e r e v i e w s o f th e Theory of Justice t h a n I
c a r e to r e c a ll, I m u s t r e p o r t th a t th e c o m m e n ta to r s , w h i l e e a g e r to
a d m i re th e a m b i t i o n o f R a w l s ’s e n te r p r is e , a re g e n e r a l l y q u i t e r e lu c -
t a n t to c o n c e d e th a t R a w l s ’ s a r g u m e n t a c t u a l l y s u c ce ed s in c o n v in c -
i n g T h e r h in its o w n r ig h t. I n d e e d , th e d e te c ts a n d a m b ig u itie s ^ th a t
haveTTeen u n e a rth e c T b y th e m u l t i t u d e o f i n d i v i d u a l w o r k e r s a d d
u p to a r a t h e r p r o d i g i o u s h e a p . N o n e t h e l e s s , it is to o e a r l y to say
w h e t h e r this first r o u n d o f c o m m e n t a r y h a s s i m p l y s e rv e d to p r e p a r e
th e w a y fo r a m o re p r e c is e and c o n v in c in g re fo rm u la tio n o f the
co n tra cta ria n argum ent o r w h e t h e r it s h o u ld in s te a d be taken to
v in d ica te th e o l d c o n v e n tio n a l w isd o m w h ic h had c o n f i d e n t l y as
se rted th a t th e e ffo rt to u n d e r s t a n d th e n a t u r e o f so c ia l o b l i g a t i o n
a n d so c ia l ju s t ic e b y i n v o k i n g c o n t r a c t a r i a n m e t a p h o r s w a s f u n d a
m e n t a l l y m i s c o n c e iv e d .
4 8 . I t s h o u l d b e n o t e d th a t th e e x t e n t to w h i c h R a w l s ’ s w o r k is
a c t u a l l y c a p a b l e o f a K a n t i a n i n t e r p r e t a t i o n is in fa c t c o n tr o v e r s ia l.
S e e so u rc e s c it e d at n. 2 7 , c h a p . 4.
4 9 . F o r i n t r o d u c t i o n s to the b a s ic c o n c e p t s w h i c h d o n o t p r e s u p
p o se a n y g r e a t m a t h e m a t i c a l s o p h is t ic a t io n , see B r u c e A . A c k e r m a n ,
NOTES TO PAGE 1 8 3 285
“ O n th e R o l e o f E c o n o m i c A n a l y s i s in P r o p e r t y L a w , ” n. 2 8 s u p r a ;
W illia m J. B au m o l, Economic Theory and Operations Analysis,
chap. 1 6 ( 1 9 7 2 ) ; A . M i t c h e l l P o lin s k y , “ E c o n o m i c A n a l y s i s as a P o
t e n t i a l ly D e f e c t i v e P r o d u c t : A B u y e r ’ s G u i d e to P o s n e r ’ s Economic
Analysis of Law,” 8 7 Harv. L. Rev. 1 6 5 5 ( 1 9 7 4 ) .
5 0 . P e r h a p s it w il l p ro vid e som e h o p e fo r th e p h i l o s o p h i c a l f u
tu re o f S c ie n tific P o l i c y m a k i n g to n o te th a t e v e n su c h a p r o f o u n d l y
O r d i n a r y p h i l o s o p h e r as J . L . A u s t i n w a s u n w i l l i n g to p r e c l u d e the
p o s s ib ilit y o f its d e v e l o p m e n t :
C e r t a i n l y o r d i n a r y l a n g u a g e h a s n o c l a im to b e the last w o r d ,
if th e re is su ch a th in g . It e m b o d ie s , in d e e d , s o m e t h in g b e tte r
th a n the m e t a p h y s i c s o f the S t o n e A g e , n a m e l y , as w a s said, the
in h e r it e d e x p e r i e n c e a n d a c u m e n o f m a n y g e n e r a t i o n s o f m e n .
B u t th e n , th a t a c u m e n has been con cen trated p rim a rily u p o n
the p r a c t i c a l b u sin e s s o f life . If a d is t in c t io n w ork s w ell fo r
p r a c t ic a l pu rp oses in o rd in a ry life (n o m ean feat, fo r even
o r d i n a r y life is fu ll o f h a r d cases), th e n th e re is sure to b e s o m e
t h i n g in it, it w il l n o t m a r k n o t h i n g : yet this is l ik e ly e n o u g h
to b e n o t the best w a y o f a r r a n g i n g t h in g s if o u r in te re sts are
m o r e e x t e n s iv e o r in t e l le c t u a l than o rd in a ry. A n d again th a t
e x p e r i e n c e h a s b e e n d e r i v e d o n l y f r o m th e so u rc e s a v a i l a b l e to
o rd in a ry m en t h r o u g h o u t m ost o f c iv iliz e d h is to r y : it h a s n o t
b e e n fed f r o m the r e s o u rc e s o f the m ic r o s c o p e a n d its successors.
And it m u st be added too, th a t s u p e r s t it io n and error and
f a n t a s y o f all k in d s d o b e c o m e in co rp o ra ted in o r d i n a r y l a n
g u a g e a n d e v e n s o m e tim e s s ta n d u p to th e s u r v iv a l test (o n ly ,
when th e y d o , w h y s h o u ld w e n o t d e te c t it?). C e r t a i n l y th e n ,
o rd in a ry lan g u ag e is not the last w ord: in p rin c ip le it can
everyw here be su p p le m en te d and im p ro v e d upon and super
sed ed . O n l y r e m e m b e r , it is th e first w o r d . “ A P l e a f o r E x c u s e s , ”
5 7 Proceedings of the Aristotelian Society 1 1 ( 1 9 5 6 ) .
5 1 . See R . M . H are, The Language of M orals ( 1 9 5 2 ) , a n d Free

dom and Reason ( 1 9 6 3 ) . F o r so m e o t h e r p o t e n t i a l l y p r o m i s i n g w o r k ,
see H i l a r y P u t n a m , “ M e a n i n g a n d R e f e r e n c e , ” 7 0 / . Phil. 6 9 9 , 7 0 4 - 6
( 1 9 7 3 ) , a n d E d d y M . Z e m a c h , “ P u t n a m ’ s T h e o r y a n d th e R e f e r e n c e
o f S u b s t a n c e T e r m s , ” 7 3 J. Phil. 1 1 0 , 1 2 4 - 2 7 ( 1 9 7 6 ) .
5 2 . I n a d d i t i o n to C h o m s k y , th e w r i t e r I h a v e f o u n d m o s t s u g g e s
tive is B a s il B e r n s t e i n . S e e h is Class, Codes and Control ( 1 9 7 3 ) .
5 3 . F o r so m e r e c e n t p l u n g e s in t o th e S t r u c t u r a l i s t fo g, see G e r a l d
286 NOTES TO PAGES 184-85
G a r v e y , Constitutional Bricolage ( 1 9 7 1 ) ; D o n a l d H . J . H e r m a n n , “ A
S t r u c t u r a l is t A p p r o a c h to L e g a l R e a s o n i n g , " 4 8 So. Cal. L . Rev. 1 1 3 1
(‘ 975)-
5 4 . I h a v e in m i n d D u n c a n K e n n e d y , “ L e g a l F o r m a l i t y , ” 2 J. Leg.
Studies 3 5 1 ( 1 9 7 3 ) ; L a u r e n c e H . T r i b e , “ W a y s N o t to T h i n k A b o u t
P la s t ic Trees: New F o u n d a tio n s fo r E n v iro n m en ta l L a w ,” 83
Yale L.J. 1 3 1 5 ( 1 9 7 4 ) ; R o b e r t o M a n g a b e i r a U n g e r , Knowledge and
Politics ( 1 9 7 5 ) .
5 5 . See h is Philosophy of Right, e s p e c i a l l y § § 3 4 - 7 1 , 18 2-218 ,
2 6 0 - 7 5 , t o g e t h e r w i t h r e s p e c t iv e A d d i t i o n s , T . M . K n o x , tr. ( 1 9 5 2 ) ;
and The Phenomenology of M in d , J . B. B a illie , tr., e s p e c ia lly
50 1-6 (196 7). The best E n g lish in tro d u ctio n to H e g e l’s p o litical
thought is S h l o m o A vin eri, Hegel's Theory of the M odern State
( 1 9 7 2 ) . A n u m b e r o f r e l e v a n t essays m a y also b e f o u n d in Z b i g n i e w
P e l c z y n s k i’s c o lle c t io n , Hegel's Political Philosophy: Problems and
Perspectives ( 1 9 7 1 ) . S e e Z . A . P e lc z y n s k i, “ T h e H e g e l i a n C o n c e p t i o n
o f th e S t a t e , ” id. at 1 ; K . H . I l t i n g , “ T h e S t r u c t u r e o f H e g e l ’ s P h i
losophy of Right," id. at 9 0 ; M a n f r e d R e i d e l , “ N a t u r e a n d F r e e d o m
in H e g e l ’ s Philosophy of Right," id. a t 1 3 6 .
5 6 . F o r so m e s e n s itiv e s p e c u l a t i o n s o n this s u b je c t, see G . A . K e l ly ,
“ H e g e l ’ s A m e r i c a , ” 2 Phil, and Pub. Affairs 3 ( 1 9 7 2 ) .
5 7 . I n d e e d , H e g e l ’s o n l y s ig n ific a n t c o m m e n t s c o n c e r n i n g A m e r i c a
su g g est this v e r y p o s s ib ilit y :
A s to th e p o l it ic a l c o n d i t i o n o f N o r t h A m e r i c a , th e g e n e r a l o b
j e c t o f the e x is t e n c e o f this S t a te is n o t y e t fix e d a n d d e t e r
m i n e d , a n d th e n e c e ssity fo r a fin e r c o m b i n a t i o n d o e s n o t y e t
e x is t; fo r a r e a l S t a te a n d r e a l G o v e r n m e n t a ris e o n l y a f t e r a
d is t in c t io n o f classes h a s a ris en , w h e n w e a l t h a n d p o v e r t y b e
cam e extrem e, a n d w h e n su c h a c o n d i t i o n o f t h in g s p re s e n ts
its e lf th a t a l a r g e p o r t i o n o f th e p e o p l e c a n n o l o n g e r satisfy
its n ece ssitie s in th e w a y in w h i c h it h a s b e e n a c c u s t o m e d so
to d o . B u t A m e r i c a is h i t h e r t o e x e m p t f r o m this pressu re, f o r it
h a s th e o u t l e t o f c o lo n iz a t io n c o n s t a n t l y a n d w i d e l y o p e n , a n d
m u ltitu d e s are c o n tin u a lly stream in g in t o th e p lain s of the
M is s is s ip p i. B y this m e a n s th e c h i e f s o u rc e o f d is c o n t e n t is r e
m o v e d a n d th e c o n t i n u a t i o n o f th e e x i s t i n g c iv il c o n d i t i o n is
gu aranteed . . . . N o r th A m erica w ill be co m p arab le w ith
E u r o p e o n l y a f t e r th e i m m e a s u r a b l e s p a c e w h i c h th a t c o u n t r y
p r e s e n ts to its i n h a b i t a n t s sh a ll h a v e been o c c u p ie d , a n d the
NOTES TO PAGE l8 6 287
m e m b e r s o f the p o l it ic a l b o d y sh all h a v e b e g u n to b e p re sse d

b a c k o n e a c h o th e r.
( G e o r g e W . F . H e g e l , The Philosophy of History 8 5 - 8 6 , J . S ib r e e , tr.,
! 9 5 6 -)
5 8 . I t s h o u ld b e e m p h a s iz e d th a t the f u t u r e o f S c ie n tific P o l i c y
m a k i n g a m o n g the A m e r i c a n e lite is n o t to b e j u d g e d m e r e l y b y a
c o n s id e r a t io n o f t r e n d s in le g a l th o u g h t . L a r g e p r o p o r t i o n s o f the
e lite a re n o w t r a in e d b y g r a d u a t e sch o o ls o f b u sin e s s a n d p u b lic
p o l ic y w h e r e e d u c a t io n is c o n d u c t e d a lm o s t e x c l u s i v e l y o n S c ie n tific
P o l i c y m a k i n g p re m ise s. M o r e o v e r , the in c r e a s in g use o f th e c o m p u t e r
in p r a c t ic a l d e c i s i o n m a k i n g is s h i f t i n g p o w e r to those w h o are at
least s u p e r fic ia lly a c q u a i n t e d w i t h n e w fo rm s o f S c ie n t ific d isco u rse.
T h u s , u n le ss l a w y e r s a re to lose th e ir h o l d o n p u b l i c a n d p r i v a t e
d e c i s i o n m a k i n g p o sitio n s, th e y w il l be i n c r e a s in g l y o b l i g e d to b e at
least s u p e r f ic ia lly a c q u a i n t e d w i t h th e sorts o f m o d e ls w h i c h c o m
pu ters m a n ip u la te — le a d in g to fu rth er p re ssu re s tow ard S c ie n t ific
P o l i c y m a k i n g in the le g a l s u b c u l t u r e . ( T h i s is n o t to d e n y th a t the
rise o f the c o m p u t e r w ill c a u s e l a w y e r s to lose so m e o f th e ir p o w e r
to those w i t h m o r e t e c h n o c r a t ic fo r m s o f t r a i n i n g ; it is o n l y to p r e
d ic t th a t as a re s u lt o f th e in t e r p r o f e s s i o n a l s t r u g g le fo r p o w e r , le g a l
th o u gh t its elf w il l be p o w erfu lly in f lu e n c e d in S c ie n t ific P o licy
m a k i n g d ir e c tio n s .)
59. T h e re a s o n s fo r this d e v e l o p m e n t a re co m p lex, larg ely un
e x p lo re d , and d iffe r e n t in d iffe r e n t c o u n tr ie s . N o n e t h e le s s , a fe w
g e n e r a l r e m a r k s s h o u ld be a t t e m p t e d , lest o n e too e a s ily i n f e r th a t
the (m o d est) d e clin e in S c ie n t if ic P o lic ym a k in g on the C o n t i n e n t
p o r t e n d s a s im ila r d e c l i n e in A m e r i c a . F o r the fa c t is th a t d r a w i n g
a s t r a ig h t f o r w a r d an alo g y betw een European and A m erican de
v e l o p m e n t s seem s q u i t e u n ju s t ifie d . M o d e r n E u r o p e a n l e g a l scien ce
r e a c h e d its m a t u r i t y in th e n i n e t e e n t h c e n t u r y a n d p r o c e e d s u p o n
c e r t a in fu n d a m e n ta l p resu p p o sitio n s th a t bear th e m ark of the
C o n t i n e n t a l c u l t u r e o f th a t p e r io d . G iv e n the c o n t e m p o r a r y c h a l
l e n g e to so m e o f these p r e s u p p o s it io n s , it w a s n o t s u r p r is i n g th a t
th e E u r o p e a n s wTo u l d b e o b l i g e d to r e tr e a t a n d r e c o n s id e r th e ir t r a
d it i o n a l e n te r p r is e . T h u s , th e t w e n t ie t h c e n t u r y h a s c h a l l e n g e d its
p r e d e c e s s o r ’ s f a il u r e to c o n f r o n t s e rio u s ly the p r o b le m s o f l a w m a k i n g
in a p l u r a lis t d e m o c r a c y , as w e l l as its s im p le f a it h in e n l i g h t e n
m e n t r a t io n a l is m a n d its im p l i c i t a s s u m p t io n o f a m o d e s t state ro le
in e c o n o m ic o r g a n iz a t io n . I n d e e d , e v e n th e C o n t i n e n t a l S c i e n t is t ’ s
28 8 NOTES TO PAGES 1 8 6 - 8 7
e x t r a o r d i n a r y t e c h n ic a l v o c a b u l a r y h a s b e g u n to seem m o r e t h a n a
little q u a i n t in its i g n o r a n c e o f m o d e r n e c o n o m i c as w e l l as q u a n t i
ta tiv e concepts e sse n tia l fo r in t e l l i g e n t la w m a k in g in an a c tiv is t
state. S i m il a r l y , th e C o n tin en ta l m odel of b u r e a u c r a c y seem s u n
n e c e s s a r ily h i e r a r c h i c a l a n d r u l e - b o u n d , u n a b l e to d is c h a r g e c o m p l e x
l a w m a k i n g f u n c t i o n s in a r a p i d l y c h a n g i n g e n v i r o n m e n t . W h a t e v e r
else m a y b e sa id o f A m e r i c a n fo rm s o f S c ie n t if ic P o l i c y m a k i n g , at
least th e y d o n o t c a r r y w i t h t h e m the h e a v y w e i g h t o f a n e s ta b lis h e d
t r a d it io n w h ich so o b v i o u s l y r e q u ir e s r e n o v a t i o n . The A m erican s,
in sh ort, h a v e b o th th e a d v a n t a g e s a n d d isad va n ta ges o f a S cien
tific a lly u n d e r d e v e l o p e d n a t i o n — w h i l e th e y a re fre e to ta k e a d v a n
ta g e o f th e n e w e s t in t e c h n o l o g y , th e y also r u n the risk o f l o s in g
t o u c h w i t h t h e ir n a t i v e v a l u e s in th e p ro cess. T h e e x t e n t to w h i c h
A m erican law w il l r e s o lv e this fu n d am e n tal p ro b le m cannot be
fo re s e e n b y j u d g i n g th e E u r o p e a n ’ s success in c o m i n g to te r m s w i t h
th e v e r y d iffe r e n t p r o b le m s o f r e n o v a t i n g a n h i s t o r ic a l ly e n t r e n c h e d
f o r m o f S c ie n t ific P o l i c y m a k i n g .
60. O n th e t r a d i t i o n a l C o n t i n e n t a l le g a l e d u c a t i o n , see G e r h a r d
Casper, “Tw o M o d els o f L e g a l E d u c a tio n ,” 41 Tenn. L. Rev. 1 3
(1973); M irja n D am aska, “A C o n t i n e n t a l L a w y e r in a n A m e r i c a n
Law S c h o o l,” 116 U. Pa. L . Rev. 1 3 6 3 ( 1 9 6 8 ) ; J o h n H e n r y M e r r y -
m an ; “ L e g a l E d u ca tio n H e re an d T h e r e : A C o m p a r i s o n , ” 2 7 Stan.
L. Rev. 8 5 9 ( 1 9 7 5 ) . R e f o r m is u n d e r w a y in m a n y W e s t e r n c o u n tr ie s ,
b u t stron g o p p o sitio n from d e f e n d e r s o f th e o ld p arad igm is n o t
s u r p r is in g . See, e.g., A n d r e a s H eld rich , “ Das t r o ja n i s c h e P ferd in
d e r Z i t a d e l l e d es R e c h t s , ” 1 4 Juristische Schulung 2 8 1 ( 1 9 7 4 ) .
6 1 . See, for G erm an y, R u d o lf S c h le s in g e r , Comparative Law
118 -20 (1970); for F ra n ce , A . V. Sheehan, C rim inal Procedure in
Scotland and France ( 1 9 7 5 ) ; a n d f o r I t a l y , M a u r o C a p p e l l e t t i a n d
J o s e p h M . P e r il l o , C ivil Procedure in Italy 7 4 - 7 5 ( 1 9 6 5 ) .
6 2 . F o r a r e c e n t d isc u ss io n , see M i r j a n D am aska, “ Stru ctu res of
A u t h o r i t y a n d C o m p a r a t i v e C r i m i n a l P r o c e d u r e , ” 8 4 Yale L.J. 4 8 0 ,
4 9 1 _ 9 3 ( 1 9 7 5 ) a n d lit e r a tu r e c it e d th e r e in .
6 3 . T h e first w a v e o f th e c o d ific a t io n m o v e m e n t , w h o s e m o st i m
p o r t a n t w o r k s w e r e the F r e n c h Code C ivil a n d the A u s t r i a n C o d e o f
1 8 1 1 , w o r k e d s e lf-c o n s c io u s ly f r o m th e c o m p r e h e n s i v e n a t u r a l r ig h ts
th e o rists o f th e previou s tw o c e n tu rie s . See Franz W e ia ck e r, Pri-
vatrechtsgeschichte der Neuzeit, 2 d ed. 2 4 9 - 3 4 7 ( 1 9 6 7 ) . T h e s e c o n d
c o d ific a t io n wave, w hose p rin c ip a l ach ievem en t is th e G erm an
C i v i l a n d C r i m i n a l C o d e s e n a c t e d a t th e t u r n o f th e c e n t u r y , r e p r e
NOTES TO PAGES 1 8 7 - 8 8 289
sents a n e v e n m o r e s e lf-c o n sc io u s effort to b u i l d u p o n n in e t e e n t h -

c e n t u r y le g a l s c h o la r s h ip . Se e ib id , at 4 5 0 - 5 1 3 .
6 4. F o r a p e r c e p t i v e d ia g n o s is, see F r i e d r i c h K i ib le r , “ K o d if ik a t i o n
u n d D e m o k r a t i e , ” 2 4 Juristenzeitung 6 2 4 ( 1 9 6 9 ) . It is i m p o r t a n t to
n o te th a t in th e E a s t e r n E u r o p e a n c o u n t r ie s c o d ific a t io n r e m a in s the
id e a l. See, e.g., I m r e S z a b o , Les Fondements de la Theorie du Droit
1 1 5 , 2 0 4 -7 ( '9 7 3 ) -
6 5 . See, fo r exam p le, th e c lo s in g pages of Franz W ieack er,
Privatrechtsgeschichte der Neuzeit 6 2 4 ff., n. 6 3 s u p r a . O r , f r o m a
s o c io lo g is t’s p o i n t o f v ie w , see N i k l a s L u h m a n n , Rechtssystem und
Rechtsdogmatik 1 9 ff. (1974). It is s y m p t o m a t i c th a t so m e C o n ti
n ental law yers lo o k upon the A m erican syste m w ith u n d isgu ised
d e s p a ir . F o r e x a m p l e , A n d r £ T u n c a n d S u z a n n e T u n c , Le Droit des
Etats-Unis d’Amerique 1 6 3 ( 1 9 5 5 ) : “ L ’a ffa ib lis s e m e n t d e l ’ a u t o r it ^ d u
p r £ c £ d e n t , q u i, en m a t i £ r e d e c o m m o n l a w n ’ est a u tr e q u e l ’affaiblisse-
m e n t d u d r o it lu i-m e m e , s e m b le a v o i r to u c h y le p o i n t oil il laisse
q u e l q u e p e u d £ s o r ie n t £ s p r a t ic i e n s et th d o ric ie n s. U n e telle a t t it u d e
[a l ’^ g a r d d e l ’a u t o r it ^ d u p r d c ^ d e n t], p o u s s^ e a l ’ e x t r e m e , serait la
n e g a t io n du d r o it. Aux E ta ts-U n is m em e, e lle ne laisse pas de
p r e s e n t e r d es d a n g e r s .” Id . at 1 8 3 .
66. W h i l e fo r us j u d i c i a l r e v i e w r e p r e s e n ts th e p a r a d i g m a t i c i n
sta n c e o f a le g a l d e c is io n , it is i l l u m i n a t i n g to n o te the d iffic u lty
E u r o p e a n s h a v e h a d w it h the n o t io n sin ce it w a s i m p o r t e d to the
C o n tin e n t. In deed, th e re is r e s p e c t a b l e o p in io n in favor of th e
p o s itio n th a t co n stitu tio n al rev ie w cannot be c o n s id e r e d ju d icial
a c t iv it y at all, s in c e its p r e m is e s so p lain ly ch a lle n ged r e c e iv e d
ju rid ica l t e c h n iq u e . Se e J o s e p h E s se r, Vorverstandnis und Metho-
demoahl in der Rechtsfindung 2 0 1 (1970). The c o n flic t betw een
“ p o l i c y ” a n d “ d o g m a t i c ” a p p r o a c h e s in W e s t G e r m a n y — w h e r e the
c o n s t it u t i o n a l court is very a c t iv e — is p e rce p tive ly d is c u ss e d by
F re d rich K i ib le r , Uber die praktischen Aufgaben zeitgemasser
Privatrectstheorie 2 7 ( 1 9 7 5 ) .
6 7 . S e e n o tes 5 9 , 6 4, a n d 6 5 s u p r a . T h e s e c o m p a r a t i v e o b s e r v a t io n s
have been g rea tly in f l u e n c e d by m any c o n v e r s a t io n s w ith my
c o lle a g u e , M i r j a n D am aska. W h ile th e r e is m u c h h e r e w i t h w h i c h
h e w o u l d d is a g r e e , I am g r e a t l y i n d e b t e d to h im .
»
Table of Cases
Page numbers in italics indicate that a particular

case is discussed at some length.
Aaron v. Los Angeles (Calif.), 259 Burton v. City of Wilmington Park

Ackerman v. Port of Seattle (Wash.), ing Authority (U.S.), 259
258
Alco Parking Corporation v. Pitts Campbell v. United States (U.S.),
burgh (U.S.), 2 1 2 , 215, 235 245
Amen v. City of Dearborn (U.S.), Candlestick Properties, Inc. v. San
259 Francisco Bay Conservation and
AMG Associates v. Township of Development Commission (Calif.),
Springfield (N.J.), 251 218, 263
Armstrong v. United States (U.S.), Carter v. Berry (Miss.), 242
269 Chicago, Burlington & Quincy Ry.
Arverne Bay Construction Co. v. v. Chicago (U.S.), 192
Thatcher (N.Y.), 25/ Chilson v. Board of Appeals of
Ashwander v. Tennessee Valley Au Attleboro (Mass.), 248
thority (U.S.), 2 5 8 Cities Service Company v. Federal
Energy Administration (U.S.), 257
City of Akron v. Chapman (Ohio),
Bartlett v. Zoning Commission of 249
Town of Old Lyme (Conn.), 217 City of Jacksonville v. Schumann
Batten v. United States (U.S.), 2 5 8 (Fla.), 259
Beech Forest Hills, Inc. v. Borough City of Los Angeles v. Gage (Calif.),
of Morris Plains (N.J.), 242 249 ~5 °
Berman v. Parker (U.S.), 1 9 0 , 242 City of Plainfield v. Borough of
Board of Regents v. Roth (U.S.), Middlesex (N.J.), 251
26 9 City of Warwick v. Del Bonis Sand
Bohannan v. City of San Diego and Gravel Co. (R.I.), 262
(Calif.), 263 Coastal Petroleum Co. v. Secretary
Bowles v. Willingham (U.S.), 2 5 6 of the Army (U.S.), 217
Brooks-ScanIon v. Railroad Com Commissioner of Natural Resources
mission (U.S.), 269 v. S. Volpe & Co., Inc. (Mass.),
Brown v. Board of Education (U.S.), 216, 217, 253, 264
210 Commonwealth v. Hession (Pa.),
Bureau of Mines of Maryland v. 250
George’s Creek Coal and Land Commonwealth v. Kastner (Pa.),
Co. (Md.), 252 250
291
292 T A B L E OF CASES
Consolidated Rock Products Com Harbison v. City of Buffalo (N.Y.),

pany v. City of Los Angeles 2 4 8 -4 9
(Calif.), 2 1 6 Hasegawa v. Maui Pineapple Com
pany (Hawaii), 275
Dooley v. Town Plan and Zoning HFH Ltd. v. Superior Court (Calif.),
Commission (Conn.), 216, 217, 215, 2 1 9
253» 264 Housing Authority v. Lamar (111.),
Dougherty County v. Pylant (Ga.), 259
250 Hudgens v. National Labor Rela
Drakes Bay Land Co. v. United tions Board (U.S.), 255
States (U.S.), 259 Hull v. Hunt (Wash.), 239
El Paso v. Simmons (U.S.), 236 In re Elmwood Park Project (Mich.),

Erie Ry. v. Tompkins (U.S.), 169, 259
272 In re Kelly’s Estate (Miss.), 242
Exton Quarrys, Inc. v. Zoning Board In re Main Clean Fuels (Me.), 217,
of Adjustment of West White- 218
land Township (Pa.), 262 In re Spring Valley Development
Eyherabide v. United States (U.S.), (Me.), 217, 218, 247, 252
243
Jackson v. Metropolitan Edison Co.
(U.S.), 255
Federal Power Commission v. Hope
Jobert v. Morant (Conn.), 248
Natural Gas Co. (U.S.), 1 1 4 , 236
Just v. Marinette County (Wis.),
First Portland N atn’l Bank v. Rod-
218, 253, 263
rique (Me.), 242
Flemming v. Nestor (U.S.), 219, 2 6 8
Kimball Laundry Co. v. United
Foster v. City of Detroit (U.S.), 259
States (U.S.), 243
Gibson & Perin Co. v. City of Cin Lincoln Federal Labor Union v.
cinnati (U.S.), 250 Northwestern Iron & Metal Co.
Goldblatt v. Town of Hempstead (U.S), 236
(U.S.), 216, 261, 26 2 Lomarch Corp. v. Mayor of Engle
Golden v. Board of Selectmen of wood (N.J.), 242
Falmouth (Mass.), 218 Louisville Joint Stock Land Bank
Golden v. Planning Board of Town v. Radford (U.S.), 269
of Ramapo (N.Y.), 2 4 2 , 253 Lutheran Church v. City of New
Grant v. Baltimore (Md.), 249 York (N.Y.), 215, 26 4
Griggs v. Allegheny County (U.S.), Lyon Sand & Gravel Co. v. Town
238 ship of Oakland (Mich.), 262
Gulezian v. Manchester (N.H.), 239
MacGibbon v. Board of Appeals of
Hadachek v. Sebastian (U.S.), 2 6 2 Duxbury (Mass.), 217
Hamilton v. Diamond (N.Y.), 217 Mackie v. United States (U.S.), 251
T A B L E OF CASES 293
McNeely v. Board of Appeal of Rochester Business Institute v. City

Boston (Mass.), 263 of Rochester (N.Y.), 2 1 9
Madis v. Higginson (Colo.), 247
Madison Realty Co. v. City of De St. Louis Housing Authority v.
troit (Mich.), 259 Barnes (Mo.), 259
Maher v. City of New Orleans St. Regis Paper Company v. United
(La.), 263 States (U.S.), 245
Marathon Oil Company v. Federal Schneider v. Lazarov (Tenn.), 239
Energy Administration (U.S.), 257 Sears v. Coolidge (Mass.), 242
Martin v. Port of Seattle (Wash.), Sharp v. United States (U.S.), 245
259 Sibson v. State of New Hampshire
Merchants Natn’l Bank v. Curtis (N.H.), 7-5, 30, 190, 1 9 1 , 217, 263
(N.H.), 242 Smith v. M. Speigel and Sons, Inc.
Miller v. City of Beaver Falls (Pa.), (N.Y.), 239
216, 242 State v. Johnson (Me), 217, 253, 264
Miller v. Schoene (U.S.), 261 Steel Hill Development, Inc. v.
Minden Beef Co. v. Cost of Living Town of Sanbornton (U.S.), 2 4 2
Council (U.S.), 256
Morris County Land Improvement Thompson v. W ater Resources
Company v. Parsippany-Troy Commission (Conn.), 217
Hills Township (N.J.), 216, 217, Thornburg v. Port of Portland
247, 251, 253, 264 (Ore.), 259
Mugler v. Kansas (U.S.), 753, 261 Town of Somers v. Comarco (N.Y.),
247
Nebbia v. New York (U.S.), 236 Turner v. County of Del Norte
Nestle v. Santa Monica (Calif.), 258 (Calif.), 264
New Haven Inclusion Cases (U.S.), Turnpike Realty Company v. Town
2 6 9 -jo of Dedham (Mass.), 216, 217, 264
Pennsylvania Coal Co. v. Mahon United States v. Carolene Products

(U.S.), /56-65, 191, 216, 235, 236 Co. (U.S.), 209
People v. Miller (N.Y.), 247, 250-57 United States v. Causby (U.S.), 192-
People v. Ricciardi (Calif.), 250 93, 2 ) 8 , 2 ) 8
Perry v. Sindermann (U.S.), 26 9 United States v. Central Eureka
Phelps v. Shropshire (Miss.), 2 4 2 Mining Co. (U.S.), 1 4 8 , 256, 257
Poczatek v. Zoning Board of Ap United States v. Commodities
peals (N.Y.), 239 Trading Corp. (U.S.), 193
Potomac Sand and Gravel v. Gov United States v. Cress (U.S.), 2 3 9 -
ernor of Maryland (Md), 218 41
Pumpelly v. Green Bay Company United States v. Dow (U.S.), 275
(U.S.), 257 United States v. Kansas City Life
Insurance Co. (U.S.), 251
Regional Railroad Reorganization United States v. Miller (U.S.), 2 4 3 ,
Act Cases (U.S.), 270 239
294 T A B L E OF CASES
United States v. Pewee Coal Co. Village of Belle Terre v. Boraas

(U.S.), 243, 256-57 (U.S.), 261
United States v. Virginia Electric Village of Euclid v. Ambler Realty
and Power Co. (U.S.), 259 Co. (U.S.), 1 1 4 , 191, 2/7, 236, 243,
United States v. Welch (U.S.), 245 261
United States v. Willow River
Power Co. (U.S.), 259-4/ West Coast Hotel Co. v. Parrish
United States ex rel T.V.A. v. (U.S.), 236
Welch (U.S.), 193, 242 Western States Meat Packers Ass’n,
Inc. v. Dunlop (U.S.), 256
Vartelas v. W ater Resources Com’n W right v. City of Littleton (Colo.),
(Conn.), 247 247
Village House v. Town of Loudon
(N.H.), 247, 252 Zabel v. Taub (U.S.), 217
Index
Activism, judicial: definition of, for 46, 49, 67, 69, 205-08, 243, 261,
Scientific Policymaker, 37; rela 264
tion to institutional competence Aristotle, 198
assumption of well-ordered so Austin, J. L., 200, 285
ciety, 37, 108; and Scientific Utili
tarianism, 49-56, 209, 210-11; and Baxter, William F., 209, 212, 215,
Scientific Kantianism, 77-80, 225- 217, 245-46
26; definition of, for Ordinary Bickel, Alexander M., 48, 204, 208,
Observer, 108; and existing com 275. 283
pensation doctrine, 109, 139-41, Black, Charles L., Jr., 204, 211, 255
251. See also Judicial role a n d Blackstone, Sir William, 193, 271
Well-ordered society
Activist state, 1-3; and the takings Calabresi, Guido, 174, 201, 202, 206,
clause, 28, 113-14; and the entre- 214, 217, 246, 271, 274, 280, 283
preneurial/arbitral distinction, Coase, Ronald H., 169, 217, 271, 272
50; conflict between takings clause Compensation clause. See Takings
and, 114, 148-49; legal property clause
and, 165-66; and the notion of Comprehensive View: function in
the critical state, 181 Scientific Policymaking, 11; role
A d coelutn rule, 120, 238, 258 of principles in, 11, 194-95; ab
Administrative process: Utilitarian stractness of, 11, 195; complete
theory of malfunction of, 50-53; ness of, 11, 195; consistency of,
Kantian theory of malfunction 11, 196; concept of, 11-12; range
of, 226; and local zoning boards, of admissible, 41-42; theory of
210-11 judicial role, relation to, 82-83,
Agnosticism, judicial: as a form of 105-06; exclusion of legal rules
judicial reformism, 5 7 - 5 9 ; and from, 194; welfare economics
Scientific Utilitarianism, 5 7 - 5 9 ; and, 196-97. See also Kantianism,
and Scientific Kantianism, 81; Scientific Policymaker, a n d Utili
and existing compensation doc tarianism
trine, 109 Consequentialism, 277
Airspace, 118-21, 238, 258 Conservatism, judicial: definition
Altree, Lillian R., 209, 215, 217, of, for Scientific Policymaker, 37;
245-46 relation to distributive justice as
Appeal to citizen disaffection, 46- sumption of well-ordered society,
48, 49, 67, 69, 218, 238, 243, 261 37, 108; definition of, for Ordi
Appeal to general uncertainty, 44- nary Observer, 108; and existing
295
296 INDEX
Conservatism (c o n t in u e d ) 142-44; unintelligibility of, to

compensation doctrine, 109. See Kantian, 143, 253, 254; unintel
also Judicial role; Restraint, ligibility of, to Utilitarian, 143-
Judicial; a n d Well-ordered so 44* 253
ciety Distributive justice assumption, 37,
Constitutional interpretation: tra 108, 234. See also Well-ordered
ditional techniques of, 5-8, 192- Society
94; in general, 5-10; literalism as Divided interests in property, tak
a technique of, 6, 103, 192; his ing of: existing doctrine as a
tory as a technique of, 6-8, 192- symptom of profound difficulties
94; precedent as a technique of, in Ordinary Observer method
8; and the theory of judicial role, ology, 165-67
31-33; Scientific Policymaker the — interests actually in use: prob
ory of judicial role, 3 3 - 3 9 , 204; lematic case for Scientific Policy
Ordinary Observer theory of ju maker, 157, 264; principle of
dicial role, 104-105, 107-08, 234- parity and, 157-58; easy case for
35; and the theory of statutory Ordinary Observer, 158
interpretation, 212 . S ee also — interests not actually in use: hard
Takings clause case for Ordinary Observer, 158-
Critical state: concept of, 180-81; 6 i, 162-63, 265-66; difficulty of
increasing tendency toward in maintaining principle of parity,
present legal culture, 185; rela 159-61; as legal property, 160,
tionship to Scientific Policymak 162; easy case for Scientific Policy
ing, 283 maker, 161; possible solutions for
Ordinary Observer, eclecticism,
Damaska, Mirjan R., 234, 288, 289 163, 267; extension of Ordinary
Deference, judicial: definition of, Observer methodology, 163
for Scientific Policymaker, 37; — in Pennsylvania Coal Co. v.
relation to institutional compe Mahon, 163-65, 267-68; and other
tence assumption of well-ordered forms of legal property, 165, 268-
society, 37, 108; definition of, for 70
Ordinary Observer, 108; and ex Division of labor, 93, 228-29
isting compensation doctrine, Dollar-Utile Problem, 244-45
109-10, 139. See also Judicial role; Dunham, Allison, 236, 254
Restraint, judicial; a n d Well- Dworkin, Ronald M., 20, 172-75,
ordered society 192, 194-95* 200-01, 213, 220, 227,
D e m in im is n o n cu ra t le x , 250-51 230, 231, 275, 278-81, 284
Destruction of a Thing. See Taking
of property Eclecticism: in the legal culture, 9 -
"Diminution of value” test: notion 10, 21-22, 168-69, 183, 271; and
of, 140-41, 218-19, 252, 253; re Kantianism, lexicographical ap
lation to existing compensation proach, 76, 85, 225, 226; Ordinary
doctrine, 142-43; intelligibility of Observing and Scientific Policy
doctrine to Ordinary Observer, making, 110-12; and evolving
INDEX 297
concept of harmful use, 155-56; Hegel, George W. F., 184-85, 286-

and divided interests in property,
87
163, 266-67; Harry H. Wellington History, as a technique of constitu
and, 171, 276; philosophical foun tional interpretation, 6-8, 192-94
dations of, 183-84, 285 Hobbes, Thomas, 201, 271
Equal protection dimension, 52-53, Hohfeld, Wesley N., 194, 201
68, 69, 79-80, 226, 261 Holmes, Oliver Wendell, 92, 156,
Existing compensation doctrine: 163-65, 166, 179, 216, 229, 235,
Ordinary Observing as organizing 236, 267-68, 282
framework for, 109-10, 112-14
passim, 115-16, 117-67 passim; Ideal types, 4 -5 ; generating con
lack of accepted methodology, flicting conceptions of judicial
113; and relaxed scrutiny by role, 9; representing conflicting
courts of economic policy, 113— forms of legal thought, 9-10; and
14; general incoherence of, 113— the nature of legal language, 10-
15; and increasingly Scientific 11; and the objective of legal
Policymaking character of, 114- analysis, 11-15; Ordinary Observ
15. See also Divided interests in er defined, 15; Scientific Policy
property, taking of; Justification maker defined, 15; table of, 17;
of taking; State action; a n d T ak Scientific Observer, 17-19; Ordi
ing of property nary Policymaker, 19-20. See also
Comprehensive View, Ordinary
Fallacy of misplaced concreteness, Observer, Scientific Policymaker,
a n d Social practices
15, 27, 201
Innovation, judicial: Scientific
Policymaker’s concept of, 36-39;
Generality, 11; defined, 195; and Utilitarian, 49-64, 209, 210-11,
Utilitarian rule-making, 205, 207
211-12; and Kantian, 77-83, 225-
26, 253; Ordinary Observer’s con
Hare, R. M., 183, 194, 195, 285 cept of, 108, 234-35. See also
Harmful use: and the Ordinary Judicial role a n d Well-ordered
Observer’s concept of property, society
98, 101-02; basis in social prac Institutional competence assump
tices, 150-51; as a justification tion, 37, 108. See also Well-
for a taking, 150-51, 260; and ordered society
existing compensation doctrine, Institutional self-aggrandizement,
15 1“5®» 260, 262-64; and non- 50-52, 68, 69, 79, 209, 210-11,
conforming uses of property, 153— 226, 241, 243, 246, 261
55, 261-62; and the protection of Interpersonal comparison of utility,
nature and tradition, 155-56, 59, 213, 222
262-64; in Pennsylvania Coal Co.
v. Mahon, 268 Judicial role: theory of, and con
Hart, H. L. A., 229, 230, 231, 233, stitutional interpretation, 31-34;
284 first principles of, 104-06-
298 INDEX
Judicial role (c o n t in u e d ) Kant, Immanuel, 11, 71-72, 221

—of Ordinary Observer: first prin Kantianism: general concerns of,
ciple of role theory, 104-05; con 71-72, 220-21; Principle of E x
ception of judicial innovation, ploitation as the basis of, 72;
107; conception of judicial re restrained interpretation of tak
straint, 107, 234; conservatism, ings clause, 72-76, 221-25; easy
108; deference, 108, 139; activism, takings case for, 72-75, 221-23;
108, 139-41, 15 1—55» 247-48, 260- contrast with restrained Utilitar
64; reformism, 108, 234; prag ian interpretation, 73-75, 224;
matism, 108, 235; principle, hard takings case for, 75-76,
108, 235; relation to existing 224-25; eclectic approach to, 76,
compensation doctrine, 109-11; 85, 225, 227; contrast with acti
importance in case of linguistic vist Utilitarian interpretation,
diversity, 137-40; and necessity, 77-79; tendency toward activism
260 of, 77-79; activist interpretation
—of Scientific Policymaker: concep of the takings clause, 77-80, 226;
tion of perfect judicial restraint, institutional self-aggrandizement
34-35; conception of realistic and 79, 226; doctrinal similarity
judicial restraint, 35-36; concep to activist Utilitarian interpreta
tion of judicial innovation, 36; tion, 79-80; equal protection
activism, 37; conservatism, 37; dimension of, 79-80, 226; un
deference, 37; reformism, 37; developed state of Kantian theory
pragmatism, 38; principle, 38; of judicial activism, 80, 225-26;
first principle of role theory, reformist interpretation of tak
105-06 ings clause, 80-83, 226; tendency
S ee also Kantianism, Utilitarian toward conservatism of, 81-82;
ism, a n d Well-ordered society undeveloped state of theory of
Justification of taking: roots in lay distributive justice of, 81-82;
men’s concept of property, 150; contrast with Utilitarian attitude
disputes arising from ambiguity toward activism, 82; pragmatic
of social standards, 150-51; struc interpretation of takings clause,
ture of problem of, 151; impor 83, 253; contrast between Kantian
tance of Ordinary Observer the and Utilitarian outcomes, 85; in
ory of judicial role, 151-55, 260- consistency with existing com
64; intelligibility of doctrine to pensation doctrine, 85-86; ex
Ordinary Observer, 152-53; un pansion of scope of taking clause
intelligibility of doctrine to Scien under, 86
tific Policymaker, 261
— hard cases for Ordinary Observer: Lasswell, Harold G., 197, 201, 273
nonconforming uses, 153-55, 261- Law-taker: concept of, 90-93; and
62, history and nature, 155, 262- the Ordinary Observer’s first
64; eclectic approach to hard principle of judicial role, 104-05
cases, 155-56, 264; justification in Legal culture: traditional tech
Pennsylvania Coal Co. v. Mahon, niques of constitutional interpre
268 tation in, 5-10; Scientific Policy-
INDEX 299
making and Ordinary Observing sation doctrine: rights in air

as accepted forms of legal thought space, 118-21, 238, 258; future
within, 21-22, 89, 102-03; Scien interests in property, 122-23, 241-
tific Policymaking in present, 23- 42; divided interests in property,
26; concept of property in Anglo- 156-67, 264-68; vesting of future
American, 26-27, 201; Utilitar property uses, 239; water rights,
ianism and Kantianism as ad 23 ^ - 4 >
missible Comprehensive Views in —distinction between social and
present, 41-42; tendency toward legal property: intelligibility to
Utilitarianism in present, 64-65, Ordinary Observer, 118-21, 123;
214-15; tendency toward Kan unintelligibility to Scientific
tianism in present, 71-72; Ordi Policymaker, 122-23, >6>
nary Observing in present, 88- S ee also Property, concept of
90; increasing Scientific Policy Legal realism, 8-9
making character of, 114-15, 134— Legislative process: malfunction of,
35* >44-45* >69-70. >85-86, 271- 54-56; and the agnostic judge,
75, 287; conflict between Ordi 57-59; tax legislation and distri
nary Observing and Scientific butive justice assumption of well-
Policymaking in present, 168-75, ordered society, 59, 211-12; and
188-89, 271; Scientific Policy the judicial process, 207
making character of continental, Lexicographical ordering. See Ec
186-88, 287-89; concept of prop lecticism
erty in Continental, 202-03; con Literalism, as a technique of con
trasting treatment of issues of stitutional interpretation, 6, 103,
process and issues of substance >92
in present, 234. See also Critical
state, Eclecticism, a n d Legal edu McDougal, Myres, 11, 197, 201, 273
cation Marshans, case of, 30-31; tradition
Legal education: in America, 169; al analysis of, 66-67; Utilitarian
on the Continent, 186, 288 analysis of, 67-69; Kantian an
Legal positivism, and problem of alysis of, 72-76, 222-25; Frank
rule of recognition, 283-84 1. Michelman’s analysis of, 227-
Legal Process School, 272, 274- 28
75 Michelman, Frank, I., 24, 49, 53, 54,
Legal property, concept of: distin 65, 174, 207, 208-09, 215, 217, 218,
guished from social property, 220, 226, 227-28, 253, 254, 255, 274
116-18; basis in expert opinion,
>>7, 237; relation of, to Ordinary Necessity, Ordinary Observer’s con
Observer’s interpretation of tak cept of, 260
ings clause, 117-18; absence of Neighborliness, concept of, 153, 261
existing social practices in inhos Nichols, Philip, 215, 216, 245, 255,
pitable spatial domains and in 264, 265
time, 121-123, 238-42; hybrid Nonconforming use, doctrine of:
forms of, 266 and taking of property, 130-33,
— relation of, to existing compen 247-49; and justification of
3°° INDEX
Nonconforming use (c o n t in u e d ) Pragmatism, judicial: definition of,

taking of property, 153-55, 262 for Scientific Policymaker, 38; re
Nozick, Robert, 190, 213, 220 lation to social psychology as
sumption of well-ordered society,
38, 108, 235; and Scientific
Ordinary Observer, 4, 9-10; distin Utilitarian, 60-64; and Scientific
guished from Scientific Policy Kantian, 83, 253; for Ordinary
maker, 10-15; defined, 15; dis Observer, 108, 235; and exist
putes among, 16; distinguished ing compensation doctrine, 109-
from Scientific Observer, 17-18; 10. S ee also Judicial role a n d
relation to laymen’s conception Well-ordered society
of legal system, 90-93, 229-30; Precedent, as a technique of inter
relation to laymen’s language, preting the takings clause, 8
93; problem of linguistic diver Prima facie case, concept of, 234,
sity, 94, 137-39; problem of iden 243; taking of property as ele
tifying dominant social practices, ment of, 124-25, 130-31, 142-43,
95-96; conception of property of, 242; state action as element of,
97-100, 230-33; general structure 145-46, 255; of takings claim, 150
of takings problem for, 100-03; Principle, as constitutive of Com
interpretation of taking clause, prehensive View, 11; generality
102; philosophical foundations of, of, 11, 195; abstractness of, 11,
176-80, 282-83; and nonjudicial 195; completeness of, 11, 195;
decisionmakers, 281. S ee also consistency of, 11, 196; defined,
Judicial role; Legal property, 194-95; limited number in Com
concept of; Social practices; Social prehensive View, 197-98
Property, concept of Principle, judicial: definition of,
Ordinary Policymaker, 19-20 for Scientific Policymaker, 38;
relation to social psychology as
sumption of well-ordered society,
Pareto-superiority, 183, 222 38, 108, 235; definition of,
Parity, principle of: and divided for Ordinary Observer, 108, 235;
property interests actually in use, and existing compensation doc
157, 158; and divided property in trine, 109. See also Judicial role;
terests not in use, 159-61; and Restraint, judicial; a n d Well-
Pennsylvania Coal Co. v. Mahon, ordered society
267 Process costs: and Utilitarianism,
Partial taking, 128-29, 245 45-46, 48-49, 68, 127-28, 131, 206,
Per se rule: and Utilitarian, 69, 70, 208, 244-45, 261; and Kantianism,
125; and Kantian, 86, 125; and 73 - 7 4 > 75 ~7 6> 7 7 > 85 > 13 I> 222-
Ordinary Observer, 124-26, 242 25, 253, 261
Planning blight, 259 Property, concept of: of Scientific
Plato, 199 Policymaker in Anglo-American
Posner, Richard A., 11, 174, 175, legal culture, 26-27, 201-02; of
201, 205, 214, 266, 274, 281 Ordinary Observer, and relation
INDEX 3°i
to laymens’ social practices, 97, Retroactivity, problem of, 179, 283

229-30; competing conceptions of, Rose-Ackerman, Susan, 210, 220
98-99; defined, 98, 99-100, 230- Rule, 11; exclusion from Compre
33; concept of harmful use, 98, hensive View, 194
101-02; of Scientific Policymaker Rule of recognition, problem of:
in Continental legal culture, 202- for the Scientific Policymaker,
03. See also Legal property, con 41-42, 182, 283-84; for the Ordi
cept of, a n d Social property, con nary Observer, 95-96, 175-180,
cept of 230-31
Public trust duty, 263
Sax, Joseph L., 24, 50-56, 65, 79,

80, 174, 193, 209, 210, 212, 215,
Rawls, John, 35, 81, 204, 213, 220, 217, 253, 255, 261, 264, 274
225, 226, 228, 231, 254-55, 284 Scientific legal language, concept of,
Reformism, judicial: definition of, 1 0 - 11, 194; varieties of, 26, 201;
for Scientific Policymaker, 37; re Hohfeldian, 194, 201; on the
lation to distributive justice as Continent, 202-03. See also Prop
sumption of well-ordered society, erty, concept of
37, 108, 234; and Scientific Utili Scientific Observer, 17-19
tarianism, 57-60; and Scientific Scientific Policymaker, 4, 9-10; dis
Kantianism, 80-83, 226; defini tinguished from Ordinary Ob
tion of, for Ordinary Observer, server, 10-15; defined, 15; dis
108, 234; and existing compensa putes among, 15-16; distinguished
tion doctrine, 109. See also Judi from Ordinary Policymaker, 19-
cial role a n d Well-ordered so 20; conception of property of,
ciety 26-29, 201-03; interpretation of
Regulation, distinguished from takings clause, 28-29; general
taking: for Ordinary Observer, structure of takings problem for,
243-44; for Scientific Policy 29-31; philosophical foundations
maker, 244 of, 180-83, 283-85; in Continen
Reich, Charles A., 116, 220, 269, 271 tal legal systems, 186-88, 287-89;
Restraint, judicial: and Scientific and nonjudicial decisionmakers,
Policymaker’s concepts of perfect 281. See also Comprehensive
and realistic judicial restraint, View, Judicial role, Kantianism,
34-39; and Scientific Utilitarian, a n d Utilitarianism
44-49, 205-09; and Scientific Scrap value, problem of, 252
Kantian, 71-76, 221-25; and Ordi Second-order effects, 206, 208
nary Observer’s concepts of per Snare, Frank, 231-33
fect and realistic judicial re Social practices: as the Ordinary
straint, 107, 234; and existing Observer’s object of legal analysis,
compensation doctrine, 109-10. 1 1 - 15; problem of linguistic di
See also Judicial role a n d Well- versity in the identification of
ordered society dominant, 94; problem of identi-
3 °2 INDEX
Social practices (c o n t in u e d ) tion of, 146-47; intelligibility of

fying dominant, 95-96; as an existing doctrine to Ordinary Ob
element in the Ordinary Observ server, 147-48, 256-57; judicial
er’s concept of property, 97-100, deference toward activities of
229-30; and the notion of harm publicly owned enterprises as,
ful use, 98, 101-02, 150-51; and 148-49; increasing judicial activ
the Ordinary Observer’s under ism toward, 149, 258-59; contrast
standing of the takings problem, with greater activism in civil
100-03; and the Ordinary Ob rights cases, 149, 259-60
server’s theory of judicial role, Statutory interpretation, 212-13. See
107-08, 234-35; as an element in also Constitutional interpretation
the concept of social property, a n d Legislative process
116- 23, 239_4U and divided in
terests in land, 157-63, 264-66
Social property, concept of: basis Taking of property
in existing social practices, 116; — destruction of a thing: as taking
distinguished from concept of of property under existing doc
legal property, 116-18; relation trine, 129-32, 247; and non-
of, to Ordinary Observer’s inter conforming use, 130-32, 246-
pretation of the takings clause, 51; unintelligibility of doctrine
117- 18; hybrid forms of, 266 to Scientific Policymaker, 131,
— and existing compensation doc 134, 245-46, 249-50; intelligibility
trine: rights in air space, 118— of doctrine j.o Ordinary Observer,
21, 238, 258; future interests in 132-33, 247-49
property, 122-23, 241-42; divided —rendering a thing useless: hard
interests in property, 155-67, cases arising from linguistic di
264-70; vesting of future prop versity, 136-39; relation to Ordi
erty uses, 239; water rights, 239- nary Observer theory of judicial
4i activism, 139-41; and “diminu
— distinction between social and tion of value” test, 140-43, 252,
legal property: intelligibility to 253; as a taking under exist
Ordinary Observer, 118-20, 123; ing doctrine, 142-43, 251; intel
unintelligibility to Scientific ligibility of doctrine to Ordinary
Policymaker, 122-23, 161; as Observer, 142-44; unintelligibility
combination of physical objects of doctine to Kantian and Utili
and patterns of social relation tarian, 143-44, 254
ships, 135-36, 252 — transfer of rightful possession:
S ee also Property, concept of as taking of property under ex
Social psychology assumption, 38, isting doctrine, 123-25, 242-43;
108, 235. See also Well-ordered unintelligibility of doctrine to
society Scientific Policymaker, 125, 129,
State action: as element of prima 243; intelligibility of doctrine
facie takings claim, 145-46, 149, to Ordinary Observer, 125-26,
255; Ordinary Observer’s and 128-29, 245; measure of damages
Scientific Policymaker’s concep for, 126-29, 245
INDEX 3°3
Takings clause: renewed importance 46, 207; restrained interpretation

of, 3-4; problem of interpretation of takings clause, 44-49, 205-09;
of, 4-5, 190-91; and traditional risk behavior, 45-46, 205-06; pro
techniques of constitutional in cess costs, 45-46, 206-07; role of
terpretation, 5-8, 103, 192-94; Appeal to Citizen Disaffection in
literalism as a technique of in interpretation of taking clause,
terpreting, 6, 103, 192; history as a 46-48; activist interpretation of
technique of interpreting, 6-8, taking clause, 49-56; role of in
192-94; precedent as a technique stitutional self-aggrandizement
of interpreting, 8; as affirmation of assumption in interpretation of
status quo ante, 28, 43, 57, 60; takings clause, 50-52, 209, 210-11;
Scientific interpretation of, 28- equal protection dimension of in
29; general structure of the terpretation of takings clause, 52-
takings problem for the Scientific 53; agnosticism as to distributive
Policymaker, 29-31; and the the justice assumption, 57-59; 211 —
ory of judicial role, 31, 82-83, 12; reformist interpretation of
137-40; and Utilitarian theory of takings clause, 57-60; pragmatic
judicial role, 44-64, 205-12; ex interpretation of takings clause,
pansion of scope of, under Utili 60-64; institutional difficulties for
tarian interpretation, 69-70; and pragmatic Utilitarian judge, 62-
Kantian theory of judicial role, 63; present tendency of legal cul
71-83, 221-26; expansion of scope ture toward, 64-65, 214-15; in
of, under Kantian interpretation, consistency with existing com
86; legal nihilist’s interpretation pensation doctrine, 66-70, 217—
of, 86-87; general structure of 19; expansion of scope of takings
the takings problem for the Ordi clause under, 69-70, 220; second-
nary Observer, 100-03; and Ordi order effects, 206
nary Observer’s theory of judicial
role, 109-10; distinction between
legal and social property, impor Wellington, Harry H., 171-72, 175,
tance to the Ordinary Observer’s 194-95. 275-78
interpretation of, 117-18; inclu Well-ordered society: concept of,
sion in the Fourteenth Amend for the Scientific Policymaker, 35;
ment, 192 relation to theory of judicial
Transfer of rightful possession. See role, for the Scientific Policy
Taking of property maker, 35-36; distributive justice
assumption, 37, 108, 234-35; social
Undivided fee rule, 264 psychology assumption, 38, 108,
Useless, rendering a thing. See 235; concept of, for the Ordi
Taking of property nary Observer, 107-08; relation
Utilitarianism: and theory of judi to theory of judicial role, for the
cial role, 43, 205; role of Appeal Ordinary Observer, 107-08. See
to General Uncertainty in inter also Judicial role
pretation of takings clause, 44- Williamson, Oliver E., 208, 215, 281
46, 205-08; uncertainty costs, 44- Wittgenstein, Ludwig, 233, 237, 282
4
I,
LAW A Yale Paperbound $ 4.95
Private Property and th e C onstitution
Bruce A. Ackerman
The proper construction of the compensation clause of the Constitu

tion has emerged as the central legal issue of the environmental
revolution, as property owners have challenged a steady stream of
environmental statutes that have cut deeply into traditional notions
of property rights. When may they justly demand that the state com
pensate them for the sacrifices they are called upon to make for the
common good?
Ackerman argues that there is more at stake in the present wave of
litigation than even the future shape of environmental law in the
United States. To frame an adequate response, lawyers must come
to terms with an analytic conflict that implicates the nature of modern
legal thought itself. Ackerman expresses this conflict in terms of two
opposed ideal types—Scientific Policymaking and Ordinary Observ
ing—and sketches the very different ways in which these competing
approaches understand the compensation question. He also tries to
demonstrate that the confusion of current compensation doctrine is a
product of the legal profession’s failure to choose between these two
modes of legal analysis. He concludes by exploring the larger implica
tions of such a choice—relating the conflict between Scientific Policy
making and Ordinary Observing to fundamental issues in economic
analysis, political theory, metaethics, and the philosophy of language.
“ In an area of the law where darkness has lingered for so long, this
book sheds new light.” —Library Journal
Bruce A. Ackerman is professor of law at Yale Law School. He is the
principal author of The Uncertain Search for Environmental Quality
and the editor of Economic Foundations of Property Law.
ISBN 0- 300-02237-9
Y a l e U n iv e r s it y P r e s s N e w H a v en and L ondon

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Private Property and the Constitution

Private Property and the Constitution

New Haven and London, Yale University Press, 1977

Copyright © 1977 by Susan Rose-Ackerman, Trustee.

Designed by John O. C. McCrillis

Published in Great Britain, Europe, Africa, and Asia (except Japan) by

Library of Congress Cataloging in Publication Data

I am deeply indebted to my research assistant, John Borgo,

Our legal problem arises at the point where capitalist econ;

solution. On the one hand, one may calumniate the activist

courts to glimpse its future views by consulting Delphic high

It is plain that my thesis about the compensation clause

reconcile the competing demands of state and market in a

the bench when the hand of fate transforms a lawyer into a

I shall define my ideal types along two different, if related,

are deployed in nonlegal talk.15 While the practitioner of

permit the consistent evaluation of all the disputes the legal

mere fact that social practices do not as a whole conform to a

Thus far we have developed two conceptual polarities in

disagree about the criteria which should govern the selection

Given this larger framework, we can gain some added insight

purposes, it is not a matter of great importance which of the

maker by thoughtfully employing the concepts of ordinary

Having selected our analytic tools, it is time to test their

first appear. In the next three chapters, we shall travel the

Scientific Policymaking, as we have defined it, merely marks

present chapter we shall focus upon the Scientific side of legal

Scientific Policymaker. It is this second hypothesis that will

the property-talk ot laymen and insists that protessional talk

estly sophisticated lawyer is. I think, well acquainted with the

which will, I hope, permit the clearer expression of familiar

There are, I am sure, many Scientific languages that may

any single individual as the owner of kny particular thing. At

tional text, it will have little difficulty interpreting the first

the very abstract idea of just compensation in the wide variety

Consider, then, the following scenario: At the beginning of

been done in the recent past. Having considered the matter

land (“ the Marshans”) are permitted to exercise this right, they

While just compensation decisions are in fact made by a

theory. Yet, even apart from their intrinsic difficulty, it would

that most readily justifies their easy rejection. As a conse­

Policymaker which will lead this ideal type to understand the

D e f in it io n i : A perfectly functioning set of legal insti­

Now imagine a judge of the Scientific Policymaking persuasion

D e f in it io n 2: A perfectly restrained judge is one who

This is not to say, of course, that a perfectly restrained judge

purpose of describing the present state of legal culture. In

judicial corps exhibits many different kinds of restraint, many

hensive View invoked by the judges and so respond with a

Proposition C. Judges are to assume that the litigants,

judicial role. Given the difficulty of the subject, I have no

It is time to recall the two main objectives set in the present

special to say about issues of institutional competence— things

Only one piece of the methodological puzzle remains to be

forces in the preseyit legal culture— to explore the basic ten­

How, then, will a Scientific judge who wishes to maximize

by a paragon of restraint who was (a) deferential, (b) con­

Tw o lines of argument would suggest themselves to the

second^Uiey may insulate themselves by reducing the amount

tarian judge. Thus, if the claimant’s problem seems to be one

behavior. Indeed, outrage of this kind may spread far beyond

If the felicific merits of the statute seem quite clear to the

general utility of the legislation is increasingly subject to rea­

that most readily justifies their easy rejection. As a conse

D e f in it io n i : A perfectly functioning set of legal insti

forces in the preseyit legal culture— to explore the basic ten

by a paragon of restraint who was (a) deferential, (b) con

general utility of the legislation is increasingly subject to rea

tarian justification of the challenged action is open to sub

But suppose the legislature’s action is proceeding on a dif

basic doctrinal solutions. By examining, perhaps too labori

After a generation and more of near silence, professional phi

manuel Kant. This has the advantage of suggesting the possi

some of their rights simply because others would find it terri

the legislative judgment on the matter. T o sum up, the re

Thus far, we have introduced only a single innovative vari

to take heart from Rawls’s effort as an indication of an in

times hinted,30 that Kantian judges will systematically take in

evaluated in terms of a Comprehensive View. More affirma

This is not to say that the Policymaker is blind to the con

edy the admittedly incomplete and imprecise conceptual ap