Takings jurisprudence is engaged in a constant paradox. It is conventionally portrayed as chaotic and muddy, and yet attempts by the judiciary to create some sense of order in it by delineating this field into distinctive categories that apply to each a different set of rules are often criticized as analytically incoherent or normatively indefensible. In this Article, Professor Amnon Lehavi offers an innovative approach to the taxonomic enterprise in takings law by examining what is probably its starkest and most entrenched division: that between taking and taxing.

American courts have been nearly unanimous in refusing to scrutinize the power to tax, viewing this form of government action as falling outside the scope of the Takings Clause. Critics have argued that the presence of government coercion, loss of private value, and potential imbalances in burden sharing mandate that the two instances be conceptually synchronized and subject to similar doctrinal tests. Professor Lehavi argues that this dichotomy, and other types of legal line drawing in property, should be assessed not on the basis of a point-blank analysis of allegedly comparable specific instances, but rather on a broader view of the foundational principles of American property law and of the way in which takings taxonomies mesh with the broader social and jurisprudential understanding of what “property” is.

Identifying American property law as conforming to two fundamental principles—formalism of rights and strong market propensity—but at the same time as devoid of a constitutional undertaking to protect privately held value against potential losses as a self-standing strand in the property bundle, Professor Lehavi explains why prevailing forms of taxation do seem to be disparate from other forms of governmental interventions with private property. Focusing attention on property taxation, he shows why taxation is considered a lesser-evil type of government coercion, how the taking/taxing dichotomy better addresses the public–private interplay in property law, and why taxation is often viewed as actually empowering property rights and private control of assets.

In this Note, Dolehide explores the differences between American administrative law and that of the United Kingdom and Australia. In American administrative law, courts defer to agencies on questions of law, where judges have expertise, but undertake strict review of policy determinations, where agencies have more expertise. Judges in the United Kingdom and Australia, on the other hand, give no deference to administrative interpretations of law but grant substantial deference on policy decisions. Dolehide suggests that one important factor underlying this dichotomy is that the emergence of the administrative state has generated more significant institutional tensions in the United States than in the parliamentary systems of United Kingdom and Australia. After comparing these distinct systems, Dolehide examines what the comparative analysis suggests about the future of American deference doctrines.