The Public use of Private Property: A Dual-Constraint Theory of Efficient Governmental Takings

Abstract

There are very few absolute, inviolable proscriptions in the law. Exceptions almost always exist. This is true for both criminal law and for the law governing private relations. For example, homicide is forbidden but is excusable in self-defense. Breaking and entering another person’s property is forbidden but may be excused if the perpetrator is attempting to save someone’s life. In the law of private relationships, a person is held liable for the foreseeable consequences of failing to keep a contractual promise but may be excused if the performance has become commercially impracticable. A person whose actions proximately cause harm to another will be held liable for the victim’s harms but may be excused if the victim him/herself was careless or the injurer took as much precaution as a reasonable person would have. Much of the great work of the law consists of trying to elucidate the principles that consistently explain both the central proscriptions and the exceptions.