Against Ad Hocery: A Comment on Michelman

Abstract

Frank Michelman believes that the Supreme Court is "moving noticeably towards a reformalization of regulatory-takings doctrine." He criticizes this development, believing that the Court should instead engage in balancing. To him "balancing-or, better, the judicial practice of situated judgment or practical reason-is not law's antithesis but a part of law's essence." I argue in this Article that Michelman is wrong on both counts. Part I demonstrates that the Court does not appear to be articulating consistent formal principles in the takings area. Part II argues that it should try to do just that. Whatever the merits of ad hoc balancing in other areas of law, it has special difficulties in the takings area because of the important role of investment-backed expectations. Nonetheless, Michelman is correct in saying that the formal pattern he discerns is an undesirable one. Thus, Part III suggests a way to think about the takings question that unifies physical and regulatory takings and provides a way to distinguish between government actions that require compensation and those that do not. Nevertheless, even a very imperfect, but clearly articulated, formal takings doctrine is likely to be superior to open-ended balancing.