Article

Private Takings

Abraham Bell

Visiting Professor, University of Connecticut School of Law; Professor, Bar Ilan University Faculty of Law

This Article greatly benefited from comments and criticisms by Jonathan Barnett, Omri Ben-Shahar, Philip Blumberg, Lloyd Cohen, Bob Ellickson, Assaf Hamdani, Henry Hansmann, Christine Jolls, Sonia Katyal, Greg Keating, Dan Kelly, Dan Klerman, Yair Listokin, Tom Merrill, Gideon Parchomovsky, J.J. Prescott, Bob Rasmussen, Roberta Romano, Carol Rose, Alan Schwartz, Peter Siegelman, Henry Smith, Chris Stone, Bill Treanor, Mark Weinstein, and Ben Zipursky; and participants in the Law, Economics, and Organization Workshop at Yale University and the law and economics seminars and workshops at University of Michigan Law School, University of Southern California Gould School of Law, the Bar Ilan University Faculty of Law, and the Tel Aviv University Faculty of Law; and participants in faculty seminars at Fordham University Law School, Brooklyn Law School, University of Connecticut Law School, University of San Diego Law School, Washington University School of Law, University of Illinois Law School and George Mason University Law School. For the central ideas, I am indebted to Fred Schauer and Steven Shavell, without whom this Article would not have been possible. I am also grateful for the financial support of the John M. Olin Center for Law, Economics, and Business at Harvard Law School. All errors, of course, are mine.

Eminent domain, or the power to take, is generally analyzed as the quintessential government power. It is unsurprising, therefore, that scholars tend to operate from the basic assumption that eminent domain is solely an incident of the government’s domain in the provision of public goods. This assumption has led to widespread criticism of the courts’ evisceration of the “public use” requirement, and repetition of the mantra that the government cannot simply take from A in order to give to B.

In this Article, I show that this conception of takings is too narrow. In function, if not in name, eminent domain is simply another property arrangement, and, as such, it is adaptable to private property law even without state action. Indeed, private takings— that is, takings carried out by nongovernmental actors—have a solid basis in our legal system. Additionally, the justifications for government takings lend themselves just as well to private takings. Recognizing the importance and legitimacy of private takings leads to two central claims. First, I argue that private takings should often be a preferred mechanism for achieving goals generally accomplished today through public takings. Second, I show that identifying private takings as a vital category helps clarify the proper concerns of takings law—not only the constitutionally demanded “just compensation” offered for takings and the posttaking “public use,” but also to the pretaking original use.

Having made these central claims, I posit that a comprehensive law of takings can be developed that encompasses both private and public takings. In the realm of theory, the Article circumscribes the place of takings within the broader theory of entitlements by defining takings within the context of mixed property and liability (“pliability”) rules. Normatively, the Article argues for the incorporation of private taking mechanisms into fields generally seen as the domain of classic property law and regulation.

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