What Owners Want and Governments Do - Evidence from the Oregon Experiment
In 2004, Oregonians approved ballot Measure 37 by 61% to 39%. The measure answered the calls of critics of contemporary takings jurisprudence by requiring either compensation for losses caused by land use restrictions imposed after acquisition of the property or waivers of the restrictions. Three years later, voters acted to repeal most of Measure 37 by an even greater margin. Together the birth, brief life, and rapid demise of Measure 37 comprise an unusual natural experiment in property law. The results of this experiment go to the heart of debates about regulatory takings in property law and policy. First, the Oregon experience resulted in a sea change in owners’ understandings of property rights. The 2004 vote reflected the popular understanding of land use restrictions as invasions of property rights. Faced with effective repeal of those restrictions, as reflected in passionate testimony before the Oregon legislature, Oregonians came to see the regulations as in fact an important source of property rights. In effect Measure 37 brought the background government and community support on which property rights depend into the foreground of owners’ consciousness. Second, government responses to Measure 37 challenged arguments that compensation will dispel the fiscal illusion under which governments operate and result in more efficient regulation. Rather than weigh costs and benefits, in all but one of thousands of cases, the government waived the regulations rather than compensate. These decisions were made without analysis of the benefits of the regulations waived, and despite predictably negative results. Finally, the thousands of claims and research catalyzed by these claims complicated questions of the compensation to which owners are justly entitled. While limited, therefore, the Oregon experiment provided valuable grounded evidence for the continuing debate about takings law and the ways that property mediates the relationships between individuals, communities, and the state.
The Hidden Structure of Takings Law
The American legal community remains perplexed and fascinated by the question of which exercises of governmental power should fall prey to the constitutional ban on uncompensated takings of property. Intense interest stems partly from the Supreme Court's professed inability to provide a general solution to the takings problem and partly from the undeniable appeal of contrasting points of view. Students of the takings controversy, however, are perhaps most intrigued by the extent to which it raises fundamental questions of political life. Which resources should be treated as crucial to personal well-being and thus either exempt from any collective redistribution or at least shielded against uncompensated loss? Will a strict compensation requirement encourage shy or self-reliant people to trust communal bonds, or will it prevent the collective control necessary to sound resource management? Are satisfactory general formulations available to decision-makers responsible for identifying those items of value which the government may purchase but not destroy?This Article is an effort to extend analysis of the takings question beyond criticism of any particular case or even of a particular perspective. Its principal goal is to examine the intellectual structure of the takings problem critically in order to question the current framework of scholarly debate.Part I describes the hidden structure of the takings controversy. More specifically, Part I describes how private law's purported function of allocating resource claims and public law's professed role of protecting already allocated resources threaten to become indistinguishable; thereby imperiling coherent judicial enforcement of the just compensation clause.Part II applies the intellectual framework developed in the first part to the doctrines and rationales the Court has employed in takings cases. In particular, the Court's three-factor test for evaluating takings claims is criticized for its reliance on general solutions to the underlying problems of property law that have failed to provide a coherent framework for takings jurisprudence.Part III attempts to demonstrate how Part I's framework also illuminates the confusion in scholarly approaches to the takings problem. Part III emphasizes the extent to which general solutions have failed to resolve the dilemmas posed by the fifth amendment's just compensation clause.
Strategy and Manipulation in Medieval Elections
There are many goals in developing electoral protocols, including a desire for a system which is transparent, in that it is clear what the rule or procedure to follow is; nonmanipulable, in that it is not in a person’s best interest to misrepresent their preferences; honest, in the sense that it elects the ‘right’ candidate; and not open to strategizing, i.e., bribery or collusion. However, these desiderata are in tension with each other: Often, transparent electoral procedures are the least strategy resistant, and many honest procedures encourage manipulation. Thus a balance between these different goals must be sought. In modern times, since the seminal result on vote manipulation, the Gibbard-Satterthwaite Theorem [5, 6], much attention has been devoted to developing voting rules where manipulation is never in the best interest of the voters [4] or which are computationally too complex for the average bounded agent to be able to manipulate [1]. This focus on computational aspects of electoral methods is one of the hallmarks of modern studies on voting. But pursuit of these goals is not restricted to modern times: Those participating in elections in the Middle Ages also sought transparency, non-manipulability, honesty, and strategyproofness in so far as these properties can be consistently expressed in a single procedure. However, given the lack of computational sophistication in the Middle Ages, alternate approaches were needed in order to promote honesty, discourage strategizing, etc. These approaches can be classified as either external (constraints introduced outside of the electoral procedure, such as incentives for coming to consensus quickly) or internal (constraints introduced within the electoral procedure, such as voting rules which cannot be manipulated without adverse effects, or which are too difficult for the average bounded agent to manipulate). Surveying examples of both approaches in the context of medieval ecclesiastical and secular elections provides an interesting comparison to modern electoral procedures. Elections in the Middle Ages were used for the same reasons that they are today: To select suitable candidate(s) for a particular office, duty, or obligation. However, it is important to note that the term electio was used in the Middle Ages in a broader sense than our modern ‘election’. Its primary sense was ‘selection’ or ‘choice’, and only secondarily ‘election’ in the modern sense. Thus, many records which purportedly discuss elections are not discussing elections of the type which interests us. We can identify four categories of medieval electoral processes: (1) Election by an external authority having no direct interest in the election; (2) Indirect election, where electors name other electors who then select or elect the officials; (3) Election by lot; and (4) Election by ballot. Elections of the first and third types are generally computationally uninteresting; the first type corresponds to dictatorial voting rules, and the third type collapses to probability theory. In general, interesting voting methods are found only in the fourth type, election by ballot, though they can also occur in indirect election.