Volume 29, Issue 4
Winter 1999
ARTICLE
Talk is Cheap: The Existence Value Fallacy
Donald J. Boudreaux, Roger E. Meiners, and Todd J. Zywicki
Recent developments in environmental law have
heightened the importance of the concept of "existence value"--the
value that individuals gain simply from the knowledge that certain
environmental resources exist. These values are nonuse values; hence, they are
said to be in the nature of a public good and will tend to be under-protected
by the market. Because there is no market for such values, some lawyers,
economists, and policy makers have proposed the use of "contingent
valuation" studies to ascertain a value for these amenities. Contingent
valuation studies ask respondents to state how much they would pay to preserve
the environmental amenity in question. Contingent valuation studies have been
criticized by both legal scholars and economists on various practical grounds.
Here, the authors move beyond these practical problems and argue that the use
of contingent valuation is conceptually flawed. They argue that an exploration
of these conceptual problems reveals that the practical problems that have previously
been identified are merely manifestations of more fundamental conceptual
problems. They contend that contingent valuation studies are based on several
fundamental misunderstandings about the nature of economic choice and the role
of prices in a dynamic economy. Contingent valuation studies rest on the
assumption that prices are absolute and static. In reality, prices are relative
and dynamic. The authors argue that, because contingent valuation rests on a
mistaken conceptual premise, it should be rejected as a policy-making guide.
Because existence value, by definition, can be ascertained only through choice
heuristics such as contingent valuation, the authors conclude that there is no
basis in contingent valuation for political or judicial protection of existence
value.
TAKINGS LAW SYMPOSIUM
Basic Themes For Regulatory Takings Litigation
J. Peter Byrne
There is probably no area of law that is as fraught
with confusion and inconsistencies as the regulatory takings doctrine. In this
Article, Professor Byrne summarizes arguments, called "litigation
themes," that can be made to help circumnavigate the many pitfalls and
quagmires that await takings litigators as a result of this confusion. The
Article argues that the Fifth Amendment's Takings Clause was never meant to
apply to the regulation of property, but only to physical or legal
appropriations. Professor Byrne suggests that the Due Process Clauses or the
Equal Protection Clause are equally capable of resolving the conflicts that
result from the regulation of property that have traditionally been examined
under the Takings Clause. The litigation themes discussed in this Article are a
means to shift regulatory takings arguments away from the Takings Clause toward
the Due Process Clauses or the Equal Protection Clause.
The Takings Jurisprudence of the Court of Federal Claims and the Federal
Circuit
David F. Coursen
The Court of Federal Claims is the sole forum that
may award more than ten thousand dollars to a claimant against the United
States. As such, it provides a useful prism through which to examine the
effects of the United States Supreme Court's takings decisions, which have
historically been vague and uncertain. This uncertainty reflects the difficulty
in determining when property that remains in its owner's possession
nevertheless has been converted from private to public ownership. Mr. Coursen
argues that the Court of Federal Claims/Federal Circuit's takings jurisprudence
reflects and occasionally magnifies the lack of doctrinal coherence in takings
law. However, Mr. Coursen discerns some practical principles regarding takings
jurisprudence in the Court of Federal Claims/Federal Circuit. First, he finds
that formal application of categorical principles may result in finding a
taking despite compelling equities to the contrary. A second principle, Mr.
Coursen argues, is that the relevant parcel in a takings analysis should be
defined in light of the facts of the case. A third principle is that there is a
difference between expectations regarding regulation of use of property and
regulation that alters ownership or title to property. The fourth principle
articulated by Mr. Coursen is that the standard for determining economic impact
is both qualitative and quantitative.
Does a Regulation that Fails to Advance a Legitimate Governmental
Interest Result in a Regulatory Taking?
John D. Echeverria
Over the last two decades, the United States Supreme
Court has repeatedly stated that a regulation results in a taking under the
Fifth Amendment to the United States Constitution if it does not
"substantially advance a legitimate state interest." However, the
Court has never squarely relied upon this purported means-ends takings test to
uphold a finding of a taking, except in the case of challenges to permit
conditions involving physical occupations of private property. Upon careful
analysis, Mr. Echeverria argues, it is apparent that this test (which
essentially restates the traditional due process means- ends inquiry) is
inconsistent with the language and original understanding of the Takings
Clause, as well as with basic principles of modern takings doctrine. This
Article asserts that a kind of means-ends analysis does play an appropriate and
logical role in takings challenges to permit conditions involving physical
occupations but that the analysis should be confined to that special context.
Although the Court appears to be divided on the issue, this Article argues that
the Court's recent decisions support the conclusion that the purported
means-ends takings test does not in fact represent a legitimate general test
for a regulatory taking.
Regulatory Takings: A Historical Overview and Legal Analysis for Natural
Resource Management
Susan M. Stedfast
This Article provides a survey and analysis of
existing regulatory takings case law. In addition, it sets forth the basic
constitutional underpinning of takings claims. Discussed are takings cases
dating back to the nineteenth century up through the late twentieth century,
resulting in a summary of all major takings cases within United States Supreme
Court jurisprudence. This summary addresses not only the outcomes of those
cases, but also the reasoning employed by the courts with its reflections upon
civic and policy considerations. Ms. Stedfast examines the development of
police powers in the context of takings, as well as the balance that courts,
particularly the Supreme Court, attempt to strike between the government's
power and property owners' rights. The factors and guidelines utilized by the
courts in deciding regulatory takings cases are drawn from the case law. Ms.
Stedfast discusses takings cases concerning natural resources (e.g., trees,
minerals), environmental values (e.g., scenic views, open space), and land use
regulations.
Lucas v. South Carolina Coastal Council: The Categorical and Other
"Exceptions" to Liability for Fifth Amendment Takings of Private
Property Far Outweigh the "Rule"
Glenn P. Sugameli
The Takings Clause of the Fifth Amendment to the
United States Constitution provides that private property cannot be taken for
public use without just compensation. Continuing judicial and scholarly debate
on this issue has focused on the Supreme Court's 1992 decision in Lucas v. South
Carolina Coastal Council. This Article discusses the takings rule outlined by
the Lucas decision as well as the categorical and other exceptions to liability
for Fifth Amendment takings of private property. Mr. Sugameli argues that the
exceptions described in Lucas far outweigh the liability "rule."
NOTE
Standing on Their Own Four Legs: The Future of Animal Welfare Litigation
After Animal Legal Defense Fund, Inc. v. Glickman
Rob Roy Smith
Standing doctrine has represented the most
formidable hurdle to animal welfare plaintiffs seeking to change the status
quo. Without ever reaching the merits of their claims, the Court of Appeals for
the District of Columbia repeatedly found that animal welfare plaintiffs lacked
standing to enforce various provisions of the Animal Welfare Act. All of that,
however, is about to change. No longer will government action that regulates
the lives of animals and determines the experience of people who view them be
unchallengeable. This Note discusses the future of animal welfare litigation
after Animal Legal Defense Fund, Inc. v. Glickman, examining the legal and
political ramifications of this groundbreaking decision.
BOOK REVIEWS
In Defense of the Public Interest: A Review of The Takings Issue:
Constitutional Limits on Land Use Control and Environmental Regulation
Timothy J. Dowling
Mr. Dowling reviews The Takings Issue, an
examination of the case law that governs regulatory takings. Although the
authors promise a "balanced" approach to this controversial issue,
Mr. Dowling argues that the promise of balance is left unfulfilled. He
critiques the authors' treatment of leading takings cases, their discussion of
ripeness, and their concluding call for aggressive Supreme Court review of a
host of takings issues.
Overstating the Case? A Review of Natural Capitalism: Creating the Next
Industrial Revolution
Larry Edelman
Mr. Edelman reviews Natural Capitalism: Creating the Next Industrial Revolution, in which the authors suggest that conservation-based efficiency trends point the way to the economy of the future where ecological and economic goals will inevitably be reintegrated. Mr. Edelman highlights the four strategies set forth in the book as central to the concept of natural capitalism. He concludes that the book persuasively demonstrates that failure to invest in conservation adversely affects businesses' bottom line as well as the environment.