Just compensation, incentives, and social meanings

Michigan Law Review

Volumn 99, Issue 1, 2000, Pages 134-155

  Dagan, Hanoch ^a,b,c  

^a UNIVERSITY OF MICHIGAN   (United States)

^b TEL AVIV UNIVERSITY   (Israel)

^c NONE

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0043095818     PISSN: 00262234     EISSN: None     Source Type: Journal    
DOI: 10.2307/1290327     Document Type: Article

References (109)

1. Hanoch Dagan, Takings and Distributive Justice, 85 VA. L. REV. 741 (1999).
2. Glynn S. Lunney, Jr., Takings, Efficiency, and Distributive Justice: A Response to Professor Dagan, 99 MICH. L. REV. 401 (2000).
3. For the conventional wisdom see, for example, C. Erwin Baker, Property and Its Relation to Constitutionally Protected Liberty, 134 U. PA. L. REV. 741, 764-65 (1986) (arguing that protection against exploitation may not be best guide for property jurisprudence because ban on unjust individual exploitation would necessarily be so broad that it would also prevent desirable government actions); Frank Michelman, The Common Law Baseline and Restitution for the Lost Commons: A Reply to Professor Epstein, 64 U. CHI. L. REV. 57, 69 (1997) (arguing that most regulatory restrictions of land use should be perceived as ordinary examples of background risks and opportunities against which we take our chances as owners of property).
4. For the conventional wisdom see, for example, C. Erwin Baker, Property and Its Relation to Constitutionally Protected Liberty, 134 U. PA. L. REV. 741, 764-65 (1986) (arguing that protection against exploitation may not be best guide for property jurisprudence because ban on unjust individual exploitation would necessarily be so broad that it would also prevent desirable government actions); Frank Michelman, The Common Law Baseline and Restitution for the Lost Commons: A Reply to Professor Epstein, 64 U. CHI. L. REV. 57, 69 (1997) (arguing that most regulatory restrictions of land use should be perceived as ordinary examples of background risks and opportunities against which we take our chances as owners of property).
5. For a recent account of the progressive conception of ownership published after Takings and Distributive Justice, see JOSEPH WILLIAM SINGER, THE EDGES OF THE FIELD: LESSONS ON THE OBLIGATIONS OF PROPERTY (2000).
6. For a recent account of the progressive conception of ownership published after Takings and Distributive Justice, see JOSEPH WILLIAM SINGER, THE EDGES OF THE FIELD: LESSONS ON THE OBLIGATIONS OF PROPERTY (2000).
7. See RICHARD A. EPSTEIN, TAKINGS: PRIVATE PROPERTY AND THE POWER OF EMINENT DOMAIN 4, 205, 207 (1985).
8. Professor Lunney suggests that wealth distribution need not rely on takings doctrine, but can instead be accomplished through progressive taxation. Lunney, supra note 2, at 424. I have addressed this view in my original article in some detail, and have found it unpersuasive. Dagan, supra note 1, at 785-92. For a recent critique of the view that distributive goals are best accomplished through the tax code, see Chris W. Sanchirico, Taxes Versus Legal Rules as Instruments for Equity: A More Equitable View, 29 J. LEGAL STUD. 797 (2000).
9. I also noted that localism can be an important component of long-term reciprocity of advantage: "[The] conception of long-term reciprocity requires some distinction between public actions that benefit localities and public actions of larger governmental bodies. In the former category - where the beneficiary of the burden is one's local community - tolerance toward deviations from proportionality is especially warranted." Dagan, supra note 1, at 776.
10. My colleague, Professor Roderick Hills, disagrees. He claims that, as a matter of fact, small landowners tend to be politically influential. In contrast, big landowners - developers - in mid-sized American municipalities tend to be politically weak, because their "constituents" are non-resident home-buyers who do not vote in municipal elections. Thus, Professor Hills believes that existing takings doctrine gives too much, rather than too little, protection to individual lot owners - overwhelmingly homeowners, whose politics tend to be NIMBY (not in my back yard) politics. By the same token, current doctrine, in his view, does not give enough protection to big developers who usually represent high-density housing, and therefore low-income households. If these claims are correct, then my proposed doctrine is seriously misguided, as it strengthens the strong and weakens the weak, contrary to its own normative prescriptions. In other words, under these empirical assumptions, the way to implement my call to use takings law to counterbalance disproportional advantages of political influence is through a very different doctrinal test, one that alters the law to protect developers more, because they are the practical proxies for such home-buyers. Cf. Robert C. Ellickson, Cities and Homeowners Associations, 130 U. PA. L. REV. 1519 (1982) (landowners should have voting power in municipal elections proportionate to their acreage, in order to allow developers to represent their buyers by proxy more equally and effectively).
11. Indeed, Takings and Distributive Justice was consciously modest regarding the role that substantive equality can play in takings doctrine. It openly acknowledged "the demanding limitations that planning places on the possibility of promoting social justice through [judge-made] land use law." Dagan, supra note 1, at 779. Accordingly, it focused merely on the attempt to avoid any preferential treatment of the better off. At times, Professor Lunney's response ignores this subtlety. See, e.g., Lunney, supra note 2, at 417, n.34 and accompanying text.
12. I also maintained that considerations of personality support my progressive test and that it does not unduly hinder the liberty concerns of the better-off. Dagan, supra note 1, at 790. Since Professor Lunney's response focuses on efficiency, I also ignore these other considerations. Professor Lunney also briefly refers to a concern of "horizontal equity." Lunney, supra note 2, at 413. I have responded to this concern in some detail in my original article and have found it unpersuasive. Dagan, supra note 1, at 788-89.
13. For private landowners, progressive compensation appropriately mediates between two conflicting investment considerations. Compensation is said to be required to prevent underinvestment by risk-averse landowners in their property. However, if the law guarantees the full value of landowners' investments whenever they could have foreseen the prospect of a loss in value as the result of a public use, landowners may inefficiently overinvest. Due to the diminishing marginal utility of income, the concern of inefficient underinvestment by landowners is heightened (and compensation consequently gains in importance) to the extent that the taking affects a more substantial segment of the injured party's estate (all other things being equal). A progressive compensation regime approximates a proper balance since it offsets this increased risk of underinvestment by increasing compensation. Thus, a private homeowner, who is not a professional investor and who has purchased a small parcel of land with her life savings, may be a typical example where full compensation should be required. In contrast, wealthier individuals - and even more so, broadly-held corporations - who own land as part of diversified investment portfolios - are less riskaverse. Facing a possibility of an uncompensated investment, they are likely to efficiently adjust their investment decisions commensurate with the risk that their land will be put to public use. For extremely wealthy landowners, the concern of under-investment may not mandate full (or even any) compensation.
14. Lunney, supra note 2, at 406.
15. Id. at 402.
16. Id. at 407.
17. Id. at 409.
18. For methodological reasons, I start my discussion with "act or abstain" planning decisions and only afterwards turn my attention to placement planning decisions. Professor Lunney discusses these cases in the opposite order. Nothing but the flow of my argument turns on this reordering.
19. Lunney, supra note 2, at 417-18.
20. Id. at 418.
21. Id.
22. Id.
23. Id. at 419.
24. Id.
25. Id. at 409.
26. Id. at 410-11.
27. Id. at 410.
28. Id.
29. Id. at 411.
30. Id. at 412.
31. Id.
32. Id. at 414.
33. Id. at 416.
34. Id. at 425.
35. Id.
36. Professor Lunney has presented this alternative earlier: Glynn S. Lunney, Jr., A Critical Reexamination of the Takings Jurisprudence, 90 MICH. L. REV. 1892 (1992). I have criticized his scheme in Dagan, supra note 1, at 753-54.
37. Lunney, supra note 2, at 420.
38. Id. at 402.
39. Id. at 424.
40. Traditional public choice analysis may present this point as the need to consider the relative abilities of interest groups to mobilize votes. See ROBERT D. COOTER, THE STRATEGIC CONSTITUTION 114 (2000). While this point is indeed familiar, I think that the way Professor Lunney recasts it is valuable. As the text below explains, Professor Lunney's formulation focuses the inquiry on the normative power of an interest group's reasons. Thus, the reformulation (implicitly) highlights the importance of the prevalent social meanings that ultimately determine this normative power.
41. On these two accounts of government action, see, e.g., JERRY L. MASHAW, GREED, CHAOS, AND GOVERNANCE: USING PUBLIC CHOICE TO IMPROVE PUBLIC LAW 15-21, 32-40 (1997); Steven P. Croley, Theories of Regulation: Incorporating the Administrative Process, 98 COLUM. L. REV. 1, 34-41, 65-70, 76-81 (1998).
42. On these two accounts of government action, see, e.g., JERRY L. MASHAW, GREED, CHAOS, AND GOVERNANCE: USING PUBLIC CHOICE TO IMPROVE PUBLIC LAW 15-21, 32-40 (1997); Steven P. Croley, Theories of Regulation: Incorporating the Administrative Process, 98 COLUM. L. REV. 1, 34-41, 65-70, 76-81 (1998).
43. See, e.g., MASHAW, supra note 39, at 25-27; Croley, supra note 39, at 41-56.
44. See, e.g., MASHAW, supra note 39, at 27-29; Croley, supra note 39, at 70-76, 81-86.
45. Cf. Don Herzog, Externalities and Other Parasites, 67 U. CHI. L. REV. 895 (2000) (reasons underlie preferences).
46. Lunney, supra note 2, at 418.
47. See Frank I. Michelman, Property, Utility, and Fairness: Comments on the Ethical Foundations of "Just Compensation" Law, 80 HARV. L. REV. 1165, 1216-17 (1967) (the key to demoralization - a pivotal concern in the utilitarian analysis of just compensation law - lies in the "risk of majoritarian exploitation").
48. Cf. Daryl J. Levinson, Making Government Pay: Markets, Politics, and the Allocation of Constitutional Costs, 67 U. CHI. L. REV. 345, 376 n.89 (2000) ("Lunney fails to recognize that insofar as compensation is a useful way for legislatures to co-opt concentrated interest groups opposed to takings, they will pay compensation voluntarily.").
49. The main example Professor Lunney uses for the "act or abstain" planning decision scenario is Penn Central v. New York City, 438 U.S. 104 (1978). I discussed Penn Central at some length in my original article. Dagan, supra note 1, at 795-99. Following this discussion, Professor Lunney admits that Penn Central shows that progressive compensation does not invariably lead to a defeat of desirable projects. But he still resists progressive compensation because, in his view, progressive compensation generates heightened opposition costs of powerful claimants that are socially undesirable even when their lobbying efforts are ultimately unsuccessful. However, the claim that progressive compensation generates excessive opposition costs - a claim central to Professor Lunney's discussion of the placement planning decision cases, to which I now turn - is untenable. See infra text accompanying notes 47-49.
50. Lunney, supra note 2, at 409.
51. Id. at 409 n.20.
52. Id. at 406. Nevertheless, Professor Lunney "defines" just compensation as that level of compensation that makes landowners indifferent. Id. at 412 n.26.
53. Good economic reasons exist for the law's choice not to cover subjective (nonpecuniary) losses. Recall that compensation is a kind of insurance, for which all citizens pay (by a tax increase). Conventional economic wisdom says that people are generally not interested in purchasing insurance for nonpecuniary losses because the extra money they will get cannot, by definition, restore the irreplaceable good that they lost. Thus, taxpayers do not value the compensation for the nonpecuniary fraction of their losses in cases of takings more than the money lost in the tax increase. (Notice, however, that although potential takings victims do not want insurance-compensation ex ante, they will still - as the text below claims - want increased compensation ex post in order to minimize their nonpecuniary losses.) See, e.g., STEVEN SHAVELL, ECONOMIC ANALYSIS OF ACCIDENT LAW 228-31 (1987); Patricia M. Danzon, Tort Reform and the Role of Government in Private Insurance Markets, 13 J. LEGAL STUD. 517, 521 (1984). But see Steven P. Croley & Jon D. Hanson, The Nonpecuniary Costs of Accidents: Pain-and-Suffering Damages in Tort Law, 108 HARV. L. REV. 1785, 1914-16 (1995) (advocating nonpecuniary damages on basis of consumer demand).
54. Good economic reasons exist for the law's choice not to cover subjective (nonpecuniary) losses. Recall that compensation is a kind of insurance, for which all citizens pay (by a tax increase). Conventional economic wisdom says that people are generally not interested in purchasing insurance for nonpecuniary losses because the extra money they will get cannot, by definition, restore the irreplaceable good that they lost. Thus, taxpayers do not value the compensation for the nonpecuniary fraction of their losses in cases of takings more than the money lost in the tax increase. (Notice, however, that although potential takings victims do not want insurance-compensation ex ante, they will still - as the text below claims - want increased compensation ex post in order to minimize their nonpecuniary losses.) See, e.g., STEVEN SHAVELL, ECONOMIC ANALYSIS OF ACCIDENT LAW 228-31 (1987); Patricia M. Danzon, Tort Reform and the Role of Government in Private Insurance Markets, 13 J. LEGAL STUD. 517, 521 (1984). But see Steven P. Croley & Jon D. Hanson, The Nonpecuniary Costs of Accidents: Pain-and-Suffering Damages in Tort Law, 108 HARV. L. REV. 1785, 1914-16 (1995) (advocating nonpecuniary damages on basis of consumer demand).
55. Good economic reasons exist for the law's choice not to cover subjective (nonpecuniary) losses. Recall that compensation is a kind of insurance, for which all citizens pay (by a tax increase). Conventional economic wisdom says that people are generally not interested in purchasing insurance for nonpecuniary losses because the extra money they will get cannot, by definition, restore the irreplaceable good that they lost. Thus, taxpayers do not value the compensation for the nonpecuniary fraction of their losses in cases of takings more than the money lost in the tax increase. (Notice, however, that although potential takings victims do not want insurance-compensation ex ante, they will still - as the text below claims - want increased compensation ex post in order to minimize their nonpecuniary losses.) See, e.g., STEVEN SHAVELL, ECONOMIC ANALYSIS OF ACCIDENT LAW 228-31 (1987); Patricia M. Danzon, Tort Reform and the Role of Government in Private Insurance Markets, 13 J. LEGAL STUD. 517, 521 (1984). But see Steven P. Croley & Jon D. Hanson, The Nonpecuniary Costs of Accidents: Pain-and-Suffering Damages in Tort Law, 108 HARV. L. REV. 1785, 1914-16 (1995) (advocating nonpecuniary damages on basis of consumer demand).
56. Lunney, supra note 2, at 424.
57. Dagan, supra note 1, at 755.
58. Lunney, supra note 2, at 418-19.
59. This argument depends on the assumption that the community that needs the project can organize to support it. The extent or intensity of this additional pressure will obviously vary, depending in part on the ability of the benefited group to organize to support the project. Despite potential collective action problems, however, it would not be unreasonable to assume that this additional pressure would be considerable if the proposed project were indeed socially beneficial.
60. The main example Professor Lunney uses to show the inferiority of my progressive compensation proposal in the placement planning decisions scenario is the Watts Freeway Project. He claims that the unfortunate placement of the freeway resulted from the fact that Just Compensation law does not fully compensate, so the more affluent landowners' opposition simply drowned out the poorer landowners' objections due to their heightened political, economic, and social power. Lunney, supra note 2, at 404-06. However, the Watts Freeway case may actually illustrate that a uniform full compensation rule will invariably push the burdens of planning decisions on the less well-off simply because the price tag will always be lower. Pursuant to the Uniform Relocation Assistance and Real Property Acquisition Policies Act §§ 4601 et seq., whenever a government project displaces a property owner, the head of the displacing agency must reimburse the displaced owner for the actual and reasonable moving expenses and loss of personal property. See 42 U.S.C.A. § 4622. In cases of residential displacement, the government must also pay the reasonable cost of replacement dwelling in cases where reimbursement alone is insufficient to cover this expense, any debt service costs required to finance replacement housing, and any reasonable expenses incurred for evidence of title, recording fees, and any other costs incident to the replacement housing purchase. See 42 U.S.C.A. § 4623(a). Subject to the inherent, unresolvable difficulties of any compensation scheme, discussed supra note 52 and accompanying text, this formula very nearly approximates "full compensation." And, following precisely the predictions of my theory, at least one of the reasons cited by the Los Angeles Community Redevelopment Agency for their decision to run the highway through Watts and Compton rather than nearer to downtown in the Beverly Hills area was that relocation in the former area was estimated to cost only $50,000 per unit, while relocation in the more expensive areas was estimated to cost almost twice that. See William Trombley & Ray Hebert, Bold Housing Program Develops Big Problems, L. A. TIMES, Dec. 28, 1987, at 1.
61. Lunney, supra note 2, at 415.
62. Id. at 412.
63. Indeed, in some cases, as Professor Lunney claims, increased relative compensation to less well-off property owners may push the cost of imposing the planning decision on the less well-off higher than the cost of imposing it on the wealthy, even when choosing the land of the less well-off owners is more efficient. Id. at 414 n.29. But there is no reason to believe that this effect will be particularly frequent. And there is certainly no reason to think that this imperfection outweighs the regressive distortions of a uniform compensation scheme.
64. At one point, Professor Lunney almost concedes my claim that less compensation would ensure unbiased placement decisions. He admits that a reduced compensation scheme may be needed to compensate for disproportionately vocal lobbying groups. Id. at 412 n.27 (relating to "the road contractors' pro-road influence"). This concession admits that increased compensation to less affluent and powerful groups is appropriate to counterbalance the non-planning-related pressures that the affluent are able to bring to bear on planning decisions.
65. Id. at 425.
66. Id.
67. Richard H. Pildes, Why Rights are not Trumps: Social Meanings, Expressive Harms, and Constitutionalism, 27 J. LEGAL STUD. 725, 729 (1998).
68. Id. at 744.
69. Id. at 731 (emphasis added).
70. Id. at 761, 744.
71. For an elaborate exposition and defense of this expressive framework, see Elizabeth S. Anderson & Richard H. Pildes, Expressive Theories of Law: A General Restatement, 148 U. PA. L. REV. 1503 (2000).
72. Cf. ROBERT NOZICK, THE EXAMINED LIFE: PHILOSOPHICAL MEDIATIONS 288-92 (1989).
73. Dagan, supra note 1, at 791 n.177.
74. Id.
75. For the crucial importance of re-negotiating the meaning of the concept of property given its "normative resilience," see Jeremy Waldron, The Normative Resilience of Property, in PROPERTY AND THE CONSTITUTION 170, 190-91, 195 (Janet McLean ed., 1999). See also, e.g., Kevin Gray & Susan Francis Gray, Private Property and Public Propriety, in PROPERTY AND THE CONSTITUTION 11, 15 (Janet McLean ed., 1999) ("[F]airly huge outcomes will turn on whether we attribute continued vitality to the unqualified exclusory function of 'property' or choose instead to fashion our property thinking to accord with more inclusive, more integrative visions of social relationship.").
76. For the crucial importance of re-negotiating the meaning of the concept of property given its "normative resilience," see Jeremy Waldron, The Normative Resilience of Property, in PROPERTY AND THE CONSTITUTION 170, 190-91, 195 (Janet McLean ed., 1999). See also, e.g., Kevin Gray & Susan Francis Gray, Private Property and Public Propriety, in PROPERTY AND THE CONSTITUTION 11, 15 (Janet McLean ed., 1999) ("[F]airly huge outcomes will turn on whether we attribute continued vitality to the unqualified exclusory function of 'property' or choose instead to fashion our property thinking to accord with more inclusive, more integrative visions of social relationship.").
77. See Dan M. Kahan, Social Influence, Social Meaning, and Deterrence, 83 VA. L. REV. 349, 365 (1997); see also Hanoch Dagan, In Defense of the Good Samaritan, 97 MICH. L. REV. 1152, 1172 (1999); Mark D. Rosen, The Outer Limits of Community Self-Governance in Residential Associations, Municipalities, and Indian Country: A Liberal Theory, 84 VA. L. REV. 1053, 1065 (1998).
78. See Dan M. Kahan, Social Influence, Social Meaning, and Deterrence, 83 VA. L. REV. 349, 365 (1997); see also Hanoch Dagan, In Defense of the Good Samaritan, 97 MICH. L. REV. 1152, 1172 (1999); Mark D. Rosen, The Outer Limits of Community Self-Governance in Residential Associations, Municipalities, and Indian Country: A Liberal Theory, 84 VA. L. REV. 1053, 1065 (1998).
79. See Dan M. Kahan, Social Influence, Social Meaning, and Deterrence, 83 VA. L. REV. 349, 365 (1997); see also Hanoch Dagan, In Defense of the Good Samaritan, 97 MICH. L. REV. 1152, 1172 (1999); Mark D. Rosen, The Outer Limits of Community Self-Governance in Residential Associations, Municipalities, and Indian Country: A Liberal Theory, 84 VA. L. REV. 1053, 1065 (1998).
80. Lunney, supra note 2, at 424.
81. Id. at 425.
82. See supra text accompanying note 5.
83. See, e.g., CLIFFORD GEERTZ, Local Knowledge: Fact and Law in Comparative Perspective, in LOCAL KNOWLEDGE: FURTHER ESSAYS IN INTERPRETIVE ANTHROPOLOGY 167, 218-19 (1983); Austin Sarat & Thomas R. Kearns, Beyond the Great Divide: Forms of Legal Scholarship and Everyday Life, in LAW IN EVERYDAY LIFE 21, 27-32, 51-54 (Austin Sarat & Thomas R. Kearns eds., 1993).
84. See, e.g., CLIFFORD GEERTZ, Local Knowledge: Fact and Law in Comparative Perspective, in LOCAL KNOWLEDGE: FURTHER ESSAYS IN INTERPRETIVE ANTHROPOLOGY 167, 218-19 (1983); Austin Sarat & Thomas R. Kearns, Beyond the Great Divide: Forms of Legal Scholarship and Everyday Life, in LAW IN EVERYDAY LIFE 21, 27-32, 51-54 (Austin Sarat & Thomas R. Kearns eds., 1993).
85. BENJAMIN N. CARDOZO, THE NATURE OF THE JUDICIAL PROCESS 171 (1921): Every time [judges] interpret contract, property, vested rights, due process of law, liberty, they necessarily enact into law parts of a system of social philosophy; and as such interpretation is fundamental, they give direction to all law-making. The decisions of the courts on economic and social questions depend upon their economic and social philosophy....
86. Dagan, supra note 71, at 1172-73; Dan M. Kahan, Gentle Nudges vs. Hard Shoves: Solving the Sticky Norms Problem, 67 U. CHI. L. REV. 607 (2000).
87. OLIVER WENDELL HOLMES, The Path of the Law, in COLLECTED LEGAL PAPERS 167, 171 (1920). But cf. Guido Calabresi, Two Functions of Formalism, 67 U. CHI. L. REV. 478, 485, 488 (2000) (discussing the Italian approach to the role of law as a propounder and protector of ideals and implying that, as such, it is bound to fail in practice).
88. OLIVER WENDELL HOLMES, The Path of the Law, in COLLECTED LEGAL PAPERS 167, 171 (1920). But cf. Guido Calabresi, Two Functions of Formalism, 67 U. CHI. L. REV. 478, 485, 488 (2000) (discussing the Italian approach to the role of law as a propounder and protector of ideals and implying that, as such, it is bound to fail in practice).
89. I have discussed the relationship of law and altruism in more detail elsewhere. Dagan, supra note 71, at 1169-73.
90. Jeremy Bentham has already insisted on law's limited, but significant, ability to "manipulate expectations" regarding property. Jeremy Waldron, Supply Without Burthen Revisited, 82 IOWA L. REV. 1467, 1479-80 (1997).
91. Lunney, supra note 2, at 417 n.34. The examples Professor Lunney uses are also taken exclusively from the context of landownership.
92. As well as the three examples I used in Takings and Distributive Justice, supra note 1, at 792-801.
93. Lunney, supra note 2, at 422.
94. See, e.g., Andrea L. Peterson, The Takings Clause: In Search of Underlying Principles, Part 1-A Critique of Current Takings Clause Doctrine, 77 CAL. L. REV. 1299, 1301-04 (1989).
95. 453 U.S. 654 (1981).
96. See id. at 688-89.
97. Id. at 691.
98. See, e.g., In re Aircrash in Bali, Indonesia on April 22, 1974, 684 F.2d 1301, 1310 (9th Cir. 1982); Langenegger v. United States, 756 F.2d 1565 (Fed. Cir. 1985).
99. 4 Cl. Ct. 237 (1983).
100. Id. at 239.
101. Id. at 244-46.
102. Professor Lunney's discussion of Penn Central may imply this response to my analysis of Shanghai Power. Even if the beneficial public action was not blocked, progressive compensation may still have generated heightened opposition costs that are socially undesirable. However, as I explain above, the claim that progressive compensation generates excessive opposition costs is unconvincing. See supra text accompanying notes 47-49.
103. Hanoch Dagan & James J. White, Governments, Citizens, and Injurious Industries, 75 N.Y.U.L. REV. 354 (2000).
104. This would reintroduce the McCain Bill that would have explicitly capped injured smokers' compensatory claims and barred punitive damages awards and class actions. Id. at 369-70.
105. Id. at 371-72. To clarify: the case would have been different if the funds were held in trust for use by injured citizens.
106. Class actions advancing such claims have been recently filed. See Stephen Labaton, Medicaid Smokers Seek to Gain Share of States' Settlement, N.Y. TIMES, January 26, 2000, at 11.
107. Governmental interferences with citizens' punitive damages awards present complex questions that cannot be addressed here. See Dagan & White, supra note 93, at 416-24.
108. Glynn S. Lunney, Jr., Responsibility, Causation, and the Harm-Benefit Line in Takings Jurisprudence, 6 FORDHAM ENVTL. L.J. 433, 440-41 (1995) ("courts should focus on whether government has: (i) changed or restricted property rights that are (ii) of significant value only to a very few to benefit the very many.... If such singling out has not occurred, then a court should allow the government to impose the rights change without compensating the adversely affected property holders" (emphasis added)); see also id. at 497-98 (same).
109. Other approaches to takings also reach similar conclusions. Dagan & White, supra note 93, at 415.