Thursday, December 19, 2002

Having written a Supreme Court brief on the Takings Clause, I've noticed that among academics (with a few exceptions such as Richard Epstein), the Takings Clause is the poor stepchild of the Bill of Rights. (Only the Second Amendment is treated with less respect.) Much scholarship on the Takings Clause seems to resent the idea that the government might have to pay when it inhibits people's property rights.

I wonder if this predominant view would change if local governments started expropriating the property that law professors really, really care about -- their own intellectual property.

Imagine that a local government set up a "Law Review Publication Program," whereby local government agents would put out a publication of law review articles that were seized from local law professors. And under the terms of the program, when a law review article is "taken" from a law professor, that professor can no longer claim any rights of authorship -- and cannot even lay claim to any of the ideas in the law review article, under penalty of being sued for copyright violations (because the article and all of its ideas now belong to the local government).

My hunch is that law professors would immediately see the glorious wisdom of forcing the government to internalize the costs of any activity that "takes" property, or the use thereof, from particular citizens.


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