The Meaning of Value: Assessing Just Compensation for Regulatory Takings

Abstract

This Article argues that valuing compensation provides just such a window into deeper theories of takings, revealing a host of considerations that map on to specific approaches to takings law. 4 Moreover, compensation rules properly applied can advance the substantive goals of various takings regimes. At the least, since the range of monetary values that can be assigned to takings claims corresponds to diverse social values, compensation rules should be applied consistently with core constitutional values. This Article therefore argues that the adequacy of compensation cannot be determined in the abstract but must rather be judged by how effectively a damages award advances the goals of the Takings Clause. Those goals are themselves deeply contested, so instead of committing to any one, this Article examines the leading theories and the function of compensation within each one. This first step is an important project in and of itself because the relationship between the Takings Clause's protection for private property, on the one hand, and compensation, on the other, is insufficiently understood. The Article goes on, however, to assess compensation under a variety of takings theories, arguing for the surprising conclusion that current valuation methods are flexible enough to advance the goals of a variety of those theories and are therefore not inadequate at all.