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Comment on Fischel's 'Political economy of just compensation.' (article by William A. Fischel in this issue, p. 23)

Article Abstract:

The case-by-case approach taken in the courts to issues of compensation for regulatory taking is more likely to be effective than creating a statutory standard for compensation, as in proposed legislation such as the Private Property Protection Act of 1995 passed by the House and the Omnibus Property Rights Act of 1995 being considered in the Senate. Compensation by statutory provision faces problems such as measuring the value to be compensated, determining who deserves to be compensated, and considering the benefits of regulation as well as the costs. Furthermore, compensation should not be given for regulation to correct negative externalities such as pollution.

Criticism and interpretation, Fischel, William A.

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The political economy of just compensation: lessons from the military draft for the takings issue

Article Abstract:

The economic evaluation of just compensation is similar for military service as for the regulatory taking of land. When compensation is not provided, the government tends to overuse the resource and misallocation effects are incurred. However, when the government is able to optimally use a large portion of the resource, lack of compensation may be justified. Successful replacement of the draft with the all-volunteer military suggests that compensation can be effective. The analysis also suggests that under certain conditions, such as in World War II, when most of the nation's resources were being employed in the war effort, the draft was efficient and fair.

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Takings and progressive rate taxation

Article Abstract:

Progressive taxation should be treated as uncompensated taking that is not exempt from the Takings Clause. Taxation in general is regarded as a taking that is fully compensated, but this argument does not apply to progressive taxation. Progressive taxation constitutes permanent dispossession of intangible property or could be considered deprivation of all economically viable use of the property. If the Supreme Court applied a balancing test, it is doubtful whether benefits would be found to outweigh the private costs of disproportionate taxation.

Progressive taxation

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