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The Democratic ConstitutionExperimentalism and Interpretation$
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Brian E. Butler

Print publication date: 2017

Print ISBN-13: 9780226474502

Published to Chicago Scholarship Online: January 2018

DOI: 10.7208/chicago/9780226474649.001.0001

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Epstein, Holmes, and Regulatory Takings Jurisprudence

Epstein, Holmes, and Regulatory Takings Jurisprudence

(p.77) Chapter Four Epstein, Holmes, and Regulatory Takings Jurisprudence
The Democratic Constitution

Brian E. Butler

University of Chicago Press

Chapter 4 investigates the issue of “regulatory takings” through an investigation of Oliver Wendell Holmes’ foundational case, Pennsylvania Coal Co. v. Mahon, Antonin Scalia’s Lucas v. South Carolina Coastal Council and the takings theory of Richard Epstein. Epstein’s theory, a key theory for the modern resurrection of takings jurisprudence, is outlined and utilized as an example of formalist and deductivist legal reasoning. Epstein emphasizes the importance of bright-line rules and critiques Holmes’ Mahon “matter of degree” style of reasoning as incoherent and theoretically weak. As opposed to this, the argument offered in the chapter critiques Epstein’s assumptions, showing them to be empirically and formally weak. Indeed, his argument is only as strong as every link in his argument, and many of the links are controversial and easy to dispute. In contrast, the basic reasoning shown in Holmes’ opinion exemplifies a stronger braided style of argument as Peirce advocated for.

Keywords:   Holmes, Scalia, Epstein, takings, Mahon, Lucas, formalist

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