Epstein V. The Supreme Court

Take it from someone who knows: don’t ask Richard Epstein a question about property rights if you don’t want his unvarnished opinion. Over at the Manhattan Institute’s Point of Law, Richard is taking on the Supreme Court’s handling of Arkansas Game & Fish Commission v. United States, a case that tries to find the line between a tort and a taking in the specific instance of Arkansas land that was repeatedly flooded by the federal government as part of a dam management scheme. His conclusion?  That the court’s likely remedy will fall well short of the ideal:

In the end, my guess is that a clear majority of the Court will award compensation on the ground that permanent damage triggers the constitutional obligation, even in the absence of permanent flooding.

But it is all so terribly ad hoc. The correct systematic approach for takings always starts with the following propositions. The only things that the federal government can do without having to compensate are the kinds of things that private parties can do without having to pay compensation. But once it becomes clear that the private party has committed a tort, then the federal government should be bound by the same rules. Its power to take property for public use lets it resist an injunction routinely available against a private defendant. But it should never be allowed to escape its torts scot-free.

Read the whole thing here.

  1. Spin

    A definition of “a tort” and “a taking” if you don’t mind…

  2. SpinozaCarWash

    RAE’s rule that any government action that would constitute a tort if committed by a private party is intuitively appealing.  But wouldn’t the rule force formerly “tort plaintiffs” to litigate under Williamson Count & Penn Central?  The doctrinal upheaval would be seismic.  This case, while a prime example of Supreme Court’s unjust property jurisprudence, is not the appropriate vehicle.