Judicial Review: A Review of "Political Institutions, Judicial Review, and Private Property: A Comparative Institutional Analysis"
In "Political Institutions, Judicial Review, and Private Property: A Comparative Institutional Analysis," Daniel Cole discusses the role that judicial review has played in the protection of private property rights. He begins by stating the assumption that judicial review has played a critical role in the maintenance of private property rights and then questioning that assumption. He begins by reviewing the assertions of some scholars that private property owners do not require judicial review to protect their property interests because they are capable of doing so through the political process without the intervention of the courts. In fact, these scholars suggest that the courts are not well-situated to deal with compensating people who have been victimized by such unjust takings, suggesting that even a flawed regulatory system is better-situated at handling these problems than the court system is. To some extent, Cole agrees with these scholars and attempts to support his position that democratic political institutions will protect property rights, even though courts have proven incapable of doing so.
Cole breaks his article into several different subsections. In Section I, Cole examines the tension between democracy and property rights. He begins with the framers and the concerns that Madison had about protecting individual property rights in a society that was democratic, which, in many ways, challenges some of the notions of property rights. There has always been a tension between private property ownership and democracy, which Cole believes was exacerbated with the rise of the welfare state, which was essentially a series of takings of private property for public use. Holmes even introduced the idea of a regulatory taking, suggesting that if a government regulation impacts the value of private property sufficiently, it should be considered a taking even if the property has not been removed from the property owner. Cole examines Epstein's approach to the concept of takings, and believes that Epstein's characterization of his position as Lockean is erroneous.
In Section II, Cole introduces the challenges to judicial review posed by modern scholars Fischel and Komesar. He focuses specifically on judicial review of the governmental powers of eminent domain and its general police power. Fischel espouses a normative theory of regulatory taking. Fischel believes that because property owners are not an oppressed minority, they are capable of engaging in self-protective behaviors through the legislative process (Cole, p.1). Furthermore, Fischel believes this to be true even in governments that he considers welfare-states, where common interests like health and safety impact the ways that individuals can use their own land, which can amount to a regulatory taking (Cole, p.13).
Cole points out that Komesar does not share Fischel's belief that the legislative process is sufficient to protect private property rights. However, he believes that he flaws inherent in the political and legislative process as it concerns the protection of private property rights are also inherent in the legal system, making judicial review of private property a flawed system. Furthermore, "Komesar argues that this is a fatal flaw in Epstein's theory of takings because just compensation is neither an efficient nor an equitable remedy for problems of minoritarian bias in legislative decision-making" (Cole, p.10).
Cole continues, in Section III, to examine this judicial review by examining whether there is support for Fischel's normative theory of regulatory takings. He believes that Komesar's position that the government is both the best friend and the greatest threat to private property ownership does make sense. However, he does not reject the notion that the government has reasons to support and encourage private property ownership. Therefore, he endorses, at least in part, Fischel's normative theory of regulatory takings. Cole provides both theoretical and empirical support for the theory. The theoretical support derives from theories that suggest that the government has to protect property...
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