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15 Supreme Court Economic Review 141 (2007)


Since Madison, jurists of all ideological stripes have more or less casually presumed that constitutional judicial review is absolutely necessary to protect private property rights against over-regulation by political bodies. During the twentieth century, this presumption led directly to the institution of regulatory takings doctrine.

Recently, the economist William Fischel and the legal scholar Neil Komesar have raised important questions about, respectively, the utility and the sufficiency of constitutional judicial review for protecting private property. This article supports their arguments with theoretical and historical evidence that constitutional judicial review (1) is not strictly necessary for protecting private property rights, and (2) may have substantially less marginal social utility than most jurists presume.

The theoretical evidence comes from positive political-economic theories of property rights, according to which political institutions can be expected to substantially protect property rights in order to secure political and military support and generate tax revenues. The historical evidence comes primarily from the United Kingdom, where property rights have never been judicially protected against intentional and uncompensated parliamentary expropriation or regulation, but where Parliament has imposed substantial limits, including compensation requirements, upon itself. Further evidence comes from several American states that have enacted takings statutes.

The evidence presented in this article supports William Fischel's normative conclusion that judicial review is more important for protecting private property against the depredations of local governments than state or federal governments. It also provides reason to believe that property rights will be protected even if Neil Komesar is right that the courts are institutionally incapable of doing so. Finally, the article carries possible normative implications for regulatory takings doctrine.