Capital Asset Pricing Theory and the Risk of Government Regulation: Who Needs the Takings Clause Anyway?
Christopher B. Horn | 1995 U. Ill. L. Rev.
The Fifth Amendment's Takings Clause of the U.S. Constitution requires the government to pay just compensation whenever it "takes" private property. For most of this century, the Supreme Court has struggled to define precisely what government actions constitute a "taking" for Fifth Amendment purposes. Instead of producing a precise definition, this struggle has led to a "crazy-quilt pattern of Supreme Court doctrine."
Rather than attempting to develop a comprehensive takings theory, this note focuses on situations in which the Takings Clause should not apply at all. The author argues that property owners with well-diversified portfolios of capital assets do not need the Takings Clause to protect them from the risk of government regulation. The author utilizes this principle to attack the Supreme Court's takings jurisprudence and to establish a sound foundation for future takings doctrines.