A Cognitive Science Approach to Takings

Takings law determines when governmental action has such an impact on private property that a remedy by way of injunction, damages or forced condemnation is required by Just Compensation clauses in state and federal constitutions. Examples include governmental prohibitions against the filling of wetlands, prohibitions on the sale of eagle feathers and restrictions on modifications of historic structures. Takings doctrine, however, is in serious disarray. Identification of the relevant property for purposes of takings analysis and determining exactly when a "taking" occurs have long baffled courts and commentators. This article addresses the takings problem by suggesting that we change the discourse. The article suggests that a cognitive science approach to the takings field will result in a reconstruction of the area and allow us to better address the concerns underlying the present doctrinal confusion. Part I describes the field of cognitive science, which seeks to organize knowledge in terms of what we perceive and the way we use cognitive models to learn and re-learn the world around us. The article demonstrates that legal doctrines can be productively viewed as cognitive models. The article then critically analyzes the strengths and shortcomings of viewing legal doctrines in cognitive terms. Part II illustrates the application of the cognitive science approach to the takings area. Since the area has proved particularly intractable under conventional legal analysis, it is an especially useful laboratory in which to test a cognitive science approach. Cognitive analysis reveals that conventional takings doctrine is a captive of the public-private distinction, which posits a domain of private existence completely separate from government. But since property rights gain significance only when enforced by government, use of takings analysis to differentiate a clear boundary between public and private spheres in property law is bound to fail. Cognitive analysis points the way toward alternative formulations of takings analysis that do not suffer from that critical weakness. For example, we can look at property rights in terms of the functions which such rights fulfill. These include the “general use” function, which is integral to self-expression, development, production and survival; the “welfare” function, intended to secure an individual a meaningful life beyond mere survival; the “protection” function, which shields people from exploitation by others; the “allocative” function, which assures people a share of resources sufficient to allow them to participate meaningfully in the political process; and the “sovereignty” function, which confers upon owners the power to influence others through control of the terms under which property will be exchanged. The advantage of cognitive modeling is that the terms of the discussion are transformed into an altogether different form of discourse.