Takings scholarship has long focused on the niceties of Supreme Court doctrine, while ignoring the operation of takings law “on the ground” – in the state and lower federal courts, who together decide the vast bulk of all takings cases. This study, based primarily on an empirical analysis of more than 2,000 reported decisions over the period 1979 through June 2012, attempts to fill that void.The study establishes that the Supreme Court’s categorical rules govern almost no cases, and that takings claims based on government regulation almost invariably fail. By contrast, when takings claims arise out of government action other than regulation, landowners enjoy modest success. In particular, when government actions are taken by officials who are not politically accountable, state courts are more likely to scrutinize those actions.This pattern is consistent with what we believe to be the courts’ basic project in this area: to develop doctrine that acknowledges the importance of property rights while also accommodating the needs of an activist state. By and large, political processes, not judicial doctrine, are left to serve as the primary check on government activity.

Typically, book reviews are written about books recently published. An economist would argue that the function of a book review is to provide the market with additional information to help the consumer make a more informed choice on whether to buy the book. To the extent that is the function of a book review, this review of Dukeminier & Krier's property casebook is too late. The market has spoken, and it has indicated its overwhelming approval. The Dukeminier & Krier property casebook is the most widely adopted property casebook.1 It is one of, if not the most widely

Professors Dukeminier and Krier's property casebook is reputed to be the market leader in Property casebooks; I have heard estimates that it has as much as a fifty percent market share. This position is well-deserved-the casebook is thorough, comprehensive, well-written, error free, and, a significant feature for new teachers, has the best teacher's manual I have encountered for any casebook in any subject. IBM once sold computers because "No one ever got fired for choosing IBM." An analogous claim can be made for this casebook-no one ever provoked significant faculty or student unrest by choosing Dukeminier and Krier. In this review, I will concentrate on two perspectives on the book. I first taught Property in the spring 1998 semester (using the third edition of Dukeminier and Krier) and am (as I write this) about to begin my second year of teaching the course. I can thus give the perspective of a new teacher of the subject. In addition, I am an economist as well as a lawyer and am deeply fascinated by legal history. I try to bring both law and economics and historical perspectives to my teaching. I therefore offer an evaluation of the book with respect to its ambitions in those areas.

Legal scholars have never settled on a satisfactory account of the evolution of property rights. The touchstone for virtually all discussion, Harold Demsetz's Toward a Theory of Property Rights, has a number of well-known (and not so well-known) shortcomings, perhaps because it was never intended to be taken as an evolutionary explanation in the first place. There is, in principle at least, a pretty straightforward fix for the sort of evolutionary approach pursued by followers of Demsetz, but even then that approach - call it the conventional approach - fails to account for very early property rights, right at the genesis. The early developments are better explained by a very different approach based on evolutionary game theory. The game theoretic approach can account for a basic system of property rights rooted in possession; it cannot, however, account for complex property systems. To explain the latter requires the conventional approach. Hence, the two approaches combined suggest a satisfactory account of the origins and development of property rights systems.

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

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

Phillips v. Washington Legal Foundation, 118 S Ct 1925 (1998), held that interest generated by the Texas Interest on Lawyers Trust Account (IOLTA) program is the property of the clients who handed over the principal; the Court did not decide whether the IOLTA program worked a taking, or, if it did, what compensation was due. The debates among the justices about the meaning of private property, argued in terms of contextual and conceptual severance, are unlikely to prove fruitful. We elaborate a better approach that looks to the underlying purposes of just compensation: efficiency and justice are best served by uncoupling matters and methods of deterrence from matters and methods of distribution.

It was twenty-five years ago that Guido Calabresi and Douglas Melamed published their article on property rules, liability rules, and inalienability1 Calabresi, then a law professor, later a dean, is now a federal judge. Melamed, formerly a student of Calabresi's, is now a seasoned Washington attorney. Their article?which, thanks to its subtitle, we shall call The Cathedral?has had a remarkable influence on our own thinking, as we tried to show in a recent paper.2 This is not the place to rehash what we said then, but a summary might be in order. First, we demonstrated that the conventional wisdom about liability (damage) rules, that judges should use them when transaction costs are high, is incorrect, because the costs of assessing damages might in fact be higher still; if they are, property (injunction) rules are superior, at least from the standpoint of efficiency. Second, and relatedly, we identified problems of correlation and syneigy that come into play as one tries to choose between damages and injunctive relief. Correlation problems arise because the same considerations that yield high transaction costs usually yield high assessment costs as well; syneigy problems arise because the use of damage rules can inhibit the development of more effective bargaining practices. Third, we showed that Calabresi and Melamed's celebrated Rule 4 (reverse damages) contains a paradox, which we went on to resolve by inventing reverse-reverse damages (the reverse twist). The trick of the double reverse twist relates to our fourth point, having to do with a best-chooser axiom which can be used to illuminate matters of institutional (not just judicial) design generally. Finally, we suggested in conclusion the relationship of much of the foregoing to relevant literature in other disciplines.

Regulatory are widely regarded as a Whether from the standpoint of merely trying to describe judicial doctrine, or from the more ambitious standpoint of trying to normalize the doctrine in some way--finding the theory that can rationalize the cases, or the theory that should--the opening cliche in most of the scholarly commentary is that the law in this area is a bewildering mess. We can go back thirty years, more-or-less, and find statements to that effect in classic articles by Joe Sax and Frank Michelman.(1) We can skip forward to recent work and observe the same.(2) We can also take it on faith (trust me) that most of the scholarly literature in between shares the sentiment.(3) My aim here is to unpack the regulatory problem in a way that suggests why it is intractable. idea is to reveal some of the different types of ambiguity necessarily entailed in cases. Seeing these ambiguities, we readily can understand why the doctrine in this area is so confused and confusing; why there is, in short, a takings puzzle. To my mind, it is much more difficult to understand why anyone would expect matters to be otherwise. This oddity I call the takings-puzzle puzzle. It seems to me that cases routinely give rise to at least three different kinds, and different levels, of ambiguity and uncertainty. first and most superficial kind was suggested in an article by Douglas Kmiec.(4) Professor Kmiec claimed that the Supreme Court, thanks to several of its recent decisions, largely has solved the puzzle.(5) He didn't mean by this that all of the uncertainties about regulatory doctrine have suddenly vanished; what he meant, instead, is that the Court has, in his view, settled on general principles. Kmiec acknowledged, however, that the uncertainty of applying those principles remains intact. The puzzle has been solved, he said, but especific applications always will remain contentious.(6) I don't believe that the puzzle has been solved in the sense that Kmiec meant, but put that aside. point remains that even very clearly settled principles commonly will give rise to uncertainty, and thus to some degree of unpredictability, about how to apply the principles. For example, standard doctrine plainly holds that government regulations resulting in permanent physical occupations are always takings.(7) But when is an occupation permanent? Indeed, when does a government regulation even work an occupation or invasion that is cognizable for purposes? answers to these questions are not at all obvious, so the questions themselves present something of a puzzle.(8) To cite another example of the same problem, it is clear that government regulations are if they effectively wipe out the value of regulated land, unless the land uses targeted by the regulations amount to nuisances under the terms of a state's common law.(9) As Kmiec noted, however, [n]uisance law is imprecise,(10) so substantial uncertainty arises even in the course of applying settled doctrine. We need not belabor the obvious. Takings doctrine simply cannot escape this first kind of uncertainty and confusion that I have been discussing, even when principles are settled and clear. Consider now a second kind and level of ambiguity and uncertainty, one having to do with arguments about what our general principles of law in this area should be. Here, uncertainties arise that are more fundamental than those found in the first kind of ambiguity that I identified, more fundamental in the sense that one initially needs to settle on the frame within which to ponder the more mundane issues of applying the general to the particular. Carol Rose has discussed this problem in the context of regulatory takings: In doctrine, the tradition of property's civic responsibility is embodied in a test that balances public benefits against private losses from a particular measure. …