The Rhetorics of Taking Cases: It\u27s Mine v. Let\u27s Share

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\u27s Share ) and an Aristotelian approach ( It\u27s 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\u27s Share and It\u27s Mine rhetorics. Let\u27s Share is the Sophistic rhetoric of possibility. Let\u27s Share emphasizes kairos (or right timing), the future, and contingency. It\u27s Mine is the Aristotelian rhetoric of actuality that focuses on chronos (or linear time), the past, and custom. While It\u27s Mine focuses on custom (or precedent), Let\u27s 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\u27s Share/It\u27s Mine and the dichotomies described by Carol Rose and Laura Underkuffler. Rose\u27s distinction between property as proper and property as utilitarian parallels the distinction between Let\u27s Share and It\u27s Mine. Likewise, Underkuffler\u27s distinction between the operative conception of property and the common conception of property also parallels Let\u27s Share and It\u27s 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\u27s majority, concurring, and dissenting opinions display a tension between Let\u27s Share and It\u27s 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