The New Politics of New Property and the Takings Clause

Abstract

This Essay offers a broad gloss on the traditional politics of property protection and then catalogues a number of ways in which those politics have been changing. In many cases, the account is of fragmentation and fracture as once stable commitments have become much more contingent and fact dependent.' Admittedly, this characterization paints with an extremely broad brush. That is both its contribution and its weakness. This short Essay deliberately simplifies the characterization of preferences across the political spectrum. Much more nuanced definitions would better track the complexity of the underlying issues. Judges and scholars discussed below might also object to being lumped together in one group or another. Furthermore, given these broad definitions, it is always possible to find counter-examples where the politics lined up differently in the past or line up differently today. There is nevertheless value in this Essay's roughcut approach. It reveals trends that one might miss when looking with a narrower gaze. The analysis that follows deliberately sacrifices some specificity in order to capture higher-level themes and observations.