Takings Clause--Poor Relation No More
![handle is hein.journals/oklrv47 and id is 427 raw text is: OKLAHOMA
LAW REVIEW
VOLUME 47 FALL, 1994 NUMBER 3
TAKINGS CLAUSE - POOR
RELATION NO MORE?
BERNARD SCHWARTZ*
Just after the 1993 Supreme Court Term, Richard A. Epstein wrote,
Chief Justice William Rehnquist penned perhaps the single most
important sentence of the year's term in Dolan v. City of Tigard,['] a
land-use case decided in favor of the landowner: We see no reason why
the Takings Clause of the Fifth Amendment, as much a part of the Bill
of Rights as the First Amendment or Fourth Amendment, should be
relegated to the status of a poor relation in these comparable circum-
stances.z
That the Chief Justice could write this sentence was largely a result of Professor
Epstein's own efforts over the past decade to elevate'the Takings Clause to a core
position in constitutional jurisprudence. Epstein himself has a record of proposing
radical and extreme alternations in key areas of law - alterations that perhaps
initially could be dismissed as so far from the center of legal thinking as to be of
only theoretical interest but then turn out to have more ... like in them than one
could have thought possible.3 As this article will show, Epstein has succeeded in
his goal of moving the Takings Clause from the fringe to a more central position in
contemporary public law. Yet even the Rehnquist Court, despite the Chief Justice's
statement, has not been willing thus far to adopt Epstein's extreme view on the reach
of the Takings Clause.
* Chapman Distinguished Professor of Law, University of Tulsa College of Law. B.SS., 1944, City
College of New York; LL.B., 1944, New York University; LL.M., 1945, Harvard University; Ph.D.,
1947, LL.D., 1956, Cambridge University; Doctorat d'Universit, Paris, 1963.
1. 114 S. Ct. 2309 (1994).
2. Richard A. Epstein, Rule of Law: The Welfare State's Threat to Religion, WALL ST. J., July 27,
1994, at All (quoting Dolan, 114 S. Ct. at 2320).
3. Nathan Glazer, N.Y. TiMEs BOOK REv., July 16, 1995, at 3.](ViewImageLocal?handle=hein.journals/oklrv47&div=28&collection=&method=preview&ext=.png&size=3)
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Takings Clause--Poor Relation No More
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