Nevada Law Journal
Regulatory takings cases originated in 1922 when Justice Holmes, in Pennsylvania Coal Co. v. Mahon, ruled that "while property may be regulated to a certain extent, if a regulation goes too far it will be recognized as a taking." This simple rule has resulted in over eighty years of case law that Carol Rose states has left takings law to "muddle along." While many legal scholars decry the incoherence and inconsistency of takings case law, this article provides a rhetorical analysis that explains the "muddle" as a result of rhetorical tensions between a Sophistic approach ("Let's Share") and an Aristotelian approach ("It's Mine").
Part One of this article develops the concept of kairos as right timing and due measure. It argues that takings cases inherently concern kairic questions because regulatory takings cases involve constantly changing rules, and the court must determine whether the rules have gone "too far" as to require being treated as a taking. As Holly Doremus and others have observed, regulatory takings cases are "fundamentally conflicts over legal transitions. They arise when the rules change, those changes are costly (in economic or other terms), and the people bearing the costs believe that they are being unfairly singled out. The problem is ... simply that the rules are different than they once were." Determining how to handle these changing rules involves considerations of kairos.
Part Two develops the distinction between Let's Share and It's Mine rhetorics. Let's Share is the Sophistic rhetoric of possibility. Let's Share emphasizes kairos (or right timing), the future, and contingency. It's Mine is the Aristotelian rhetoric of actuality that focuses on chronos (or linear time), the past, and custom. While It's Mine focuses on custom (or precedent), Let's Share focuses on practical wisdom to solve problems arising from contingency. In addition to defining these competing rhetorics, Part Two discusses the parallels between Let's Share/It's Mine and the dichotomies described by Carol Rose and Laura Underkuffler. Rose's distinction between property as proper and property as utilitarian parallels the distinction between Let's Share and It's Mine. Likewise, Underkuffler's distinction between the operative conception of property and the common conception of property also parallels Let's Share and It's Mine rhetorics.
Part Three of this article analyzes the competing rhetorics in the recent United States Supreme Court decision of Palazzolo v. Rhode Island. The Court's majority, concurring, and dissenting opinions display a tension between Let's Share and It's Mine rhetorics. I argue that these competing rhetorics provide an explanation for the "muddle" of takings jurisprudence. This analysis, based on concepts from ancient Greek rhetoric, provides a new way to view legal discourse and has the possibility of shaping how we think about takings jurisprudence.
University of Nevada Las Vegas
The Rhetorics of Taking Cases: It's Mine v. Let's Share,
Available at: https://scholarship.law.tamu.edu/facscholar/182