Hyde Park’s Two Turns in the Takings Clause Spotlight

Lior Jacob Strahilevitz

The Journal of Legal Studies, 2021, vol. 50, issue S2, S71 - S89

Abstract: This essay tells the mostly forgotten story of Fertilizing Company v. Hyde Park, a foundational 1878 Supreme Court decision that explains the relationship between the police power and the takings clause. Fertilizing Company holds that when the government renders newly contraband property valueless pursuant to the police power, the state need not compensate its owner. That principle remains decisive in contemporary litigation involving prohibitions on bump stocks and gambling devices. Moreover, by closely scrutinizing Fertilizing Company, we can answer questions that emerged after the Supreme Court’s 2015 decision in Horne v. Department of Agriculture stated that real and personal property are to be treated identically when property is physically appropriated but differently when property’s value is reduced by regulations. The essay concludes by critiquing Richard Epstein’s scholarship on Fertilizing Company and by exploring the relationship between that case and the subsequent development of the University of Chicago’s future home.

Date: 2021
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