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19 Legal Stud. F. 429 (1995)
Book Reviews

handle is hein.journals/lstf19 and id is 439 raw text is: Regulatory Takings: Law, Economics, and Politics William A. Fischel Harvard University Press, 1995, 415 pp. In Regulatory Takings, William A. Fischel, Professor of Economics at Dartmouth College, draws on his previous writings and his experience on a local zoning board to examine how courts should evaluate the claims of proper- ty owners burdened by government regulations. The task he sets himself is one that has long confounded legal and economic scholars, not to mention judges. Although Fischel does not succeed in untying the Gordian knot of takings, Regulatory Takings is a readable work that offers something for both the takings aficionado and the novice. The latter will find an accessible intro- duction, generously sprinkled with citations to the literature. The former will find a thought-provoking view from a novel perspective. Both can benefit from Fischel's laudable effort to relate regulatory regimes to the behavior of real landowners. Fischel views judicially-mandated compensation as necessary to protect landowners from the tyranny of the majority, who are likely to impose unfairly concentrated burdens on owners of physically immobile assets. He instructs judges faced with takings claims to be sensitive to failures of the political process, and asks that they intervene when necessary to protect a relatively powerless land-owning political minority against oppression by the well-organ- ized majority. Using economics, legal history, political theory, and empirical obser- vations, Fischel attempts to persuade the reader that his vision of takings jurisprudence is legally sound, workable, and appropriate to the problem. His ambitious cross-disciplinary range sometimes causes the book to lose focus. Fischel digresses into various apparently unrelated areas without always provi- ding sufficient guideposts to allow the reader to retain sight of his ultimate aim. Fischel deserves credit for explicitly recognizing that the takings prob- lem is one of fairness, not simply efficiency (e.g. pp. 216-17). Indeed, he argues at one point that more efficient regulations may require greater scrutiny because inefficiency sometimes signals a responsive political process (p. 316). Unfor- tunately, he fails to develop the fairness question in the depth it deserves. Instead of grappling directly with the difficulties of determining what restric- tions on property use are fair, he devotes the bulk of his discussion to efficien- cy. At times, he seems simply to identify fairness with efficiency, muddying his analysis unnecessarily. Fischel's vision of regulatory fairness rests primarily on the view that property owners are sometimes unfairly subjected to regulation by bodies that Legal Studies Forum, Volume XIX, Number 4 (1995)