Indiana Law Review


Book Review

Private Property and the Constitution. By Bruce A. Ackerman.'1

New Haven and London: Yale University Press. 1977.
Pp. ix, 303. $12.95.

Reviewed by James W. Torke**

To that great majority of the bar still travelling conventional,
time-honored (or timeworn) paths of analysis and argument—
statutory text, cases, history — Professor Ackerman's essay on the
just-compensation clause of the fifth amendment may seem irrele-
vant, even impertinent; at best, addressed to legal philosophers

rather than to lawyers and judges daily facing hard, real puzzles

about "takings" and damages. Indeed, Ackerman does reject those
conventional paths as beginning and ending in mystery. 1 Yet, it is

the practicing bar and bench, those who finally must resolve just-
compensation disputes, to whom he beckons most emphatically.

Ackerman begins with the proposition that our increasing con-
cern with the environment, a concern manifested more and more fre-
quently in governmental regulation, means that we can be "assure[d]
that the compensation clause will return to center stage" of con-

stitutional controversy.2 Unfortunately, the present shape of

"compensation law — after a long period of neglect" — is not adequate
to the task ahead and "is in need of a fundamental reconsideration." 3

The central problem in compensation cases, of course, is to
determine when those called upon to sacrifice property interests for
the public good may "justly demand that the state compensate them
for the financial sacrifice they are called upon to make."4 Insofar as
present compensation law has lost touch with that fundamental

question — that is, has become a bundle of rules, internally consis-
tent, but otherwise afloat— a new beginning is needed. To the ques-
tion, "Where do we begin?" Ackerman invites all of us, lawyers and
scholars, to accept the premise that "law must become philosophical
if it is to make sense of the demand for just compensation."5

*Professor of Law, Yale Law School.
**Associate Professor of Law, Indiana University School of Law — Indianapolis.
'B. Ackerman, Private Property and the Constitution 5-9 (1977).
'Id. at 3.
3
IcL

*Id. at 1.

<7d at 189.

501



502 INDIANA LAW REVIEW [Vol. 11:501

Now, if the law is to become philosophical, then "analysts must

become philosophers if they wish to remain lawyers."
8 This is so

because "philosophy decides cases; and hard philosophy at that."
7

Demonstration of this last assertion is, in fact, the major task of this

book. That is, the author is setting out to "illuminate the relation-

ship between general philosophical perspective and particular legal

doctrine"
8

; though he is not trying to teach philosophy.
9 The claim

that such a relationship exists is not, I suppose, very new; it may
even be regarded as a truism. Yet as truths become truisms, they

need enlivening by demonstration; and it is in this undertaking that

the book gains importance. This task, however, is complicated by

the special characteristics of his audience:

The American lawyer continues to be surrounded by institu-

tions and symbols that teach him to be skeptical of abstract

and systematic thought, encouraging him instead to view

himself as a hard-headed problem-solver who reacts to each
practical situation in the light of his common-sense under-

standing of social expectations.
10

This is doubtlessly true. What is more, this attitude has popularly
been respected as a virtue, not only of American lawyers, but of

Americans generally, being manifested at times in a mistrust of

lawyers themselves.11 Yet, I think Ackerman underestimates the
conscious purpose underlying this skepticism and forgets that there

is more beneath its surface than ignorance or sleepiness.12

In a sense, he admits as much when he characterizes present
compensation law "as the work of a corps of Ordinary Observers
who understood their judicial function in a rather restrained
fashion."

13 As will be seen, the Ordinary Observer is one with a
definite and, I assume, consciously chosen approach to legal prob-
lems. Nevertheless, he charges that the muddled state of modern
compensation law is in part due to a failure to bear in mind its
distinctive nature and the suppositions underpinning its early

6Jd at 5.

Ud.

'Id. at 84. See also id, at 72, 221 n.7.

'Id. at 84.

'Yd. at 187.

"See, e.g., L. Friedman, A History of American Law 81-88 (1973).
12
Daniel Boorstin, in The Americans: The National Experience, records a

noteworthy episode in which Jeremy Bentham offered his services to President
Madison and various state governors. His proposal to construct a complete code for
the country was rebuffed, in part, because it did not seem fitting for the American
legal genius. D. Boorstin, The Americans: The National Experience 36 (1965).

13
B. Ackerman, supra note 1, at 109 (emphasis in original).



1978] BOOK REVIEW 503

development, which are the guiding precepts of the Ordinary

Observer.14 That the great number of persons engaged in any
endeavor are unaware of the fact that they follow a tradition
representing only one of several possible attitudes is commonplace
and is as true among lawyers as among any other group. But this
phenomenon does not necessarily lead the overall endeavor into a
muddle, though some participants may always end up there. Present
compensation law is not muddled simply because it has not yet ac-
counted for new problems. After all, its basic premises may be said
to resist providing solutions until the dispute is kindled and in

court.
15

On the other hand, if one rejects those premises and substitutes
others, as does a Scientific Policymaker,16 there may appear an in-
congruence properly labelled a muddle. In Ackerman's terms, the
Scientific Policymaker will, for that very reason, find compensation

law to be muddled.17 Although in his last chapter Ackerman
disclaims that he is writing a brief for either the Ordinary Observer

or the Scientific Policymaker, I think his personal orientation

toward the latter type pervades the essay. When he calls the pre-
sent state of the law sorry and identifies it as the handiwork of Or-

dinary Observers, he is, at the least, suggesting that such an ap-

proach is no longer adequate to the pace and complexity of the

times. He may be right, but as these two character types unfold, it
may appear that he is but expressing a preference of a sort that has
been present throughout history, has in some places and times
become predominant, and is often favored by those with a scholarly
bent.

What then are the distinctive traits of the Ordinary Observer
and the Scientific Policymaker?18 After defining these types, we will
want to know whether choice of one or the other approach will af-
fect the outcome of cases.19 Despite Ackerman's preference noted
above, formally speaking, he leaves the last task of choosing the

best model or blend thereof to the reader.20

"For a definition of the Ordinary Observer, see id. at 15.
16Again, Boorstin comments: "[T]his common-law approach to experience was to

become a whole philosophy, or rather an American substitute for a philosophy. Its
name was pragmatism. . . . There is some reason to suspect that the pragmatic
philosophy itself began simply as a way of generalizing this common-law approach." D.
Boorstin, supra note 12, at 42.

"For a definition of the Scientific Policymaker, see B. Ackerman, supra note 1, at
15.

"Id, at 168.

"However, we are all, if only unconsciously, a bit of both types. Id. at 110-11.
,9/d at 21.
m
I<L at 103.



504 INDIANA LAW REVIEW [Vol. 11:501

The Ordinary Observer and the Scientific Policymaker are

distinguishable at two points: Language and principle. For the Or-

dinary Observer, the language of law cannot be understood apart

from its ordinary and common meaning: "[L]egal language cannot be
understood unless its roots in the ordinary talk of non-lawyers are

constantly kept in mind."
21 By contrast, the Scientist defines legal

language as a set of precisely related and clearly defined technical

concepts independent of ordinary talk; in fact, an appeal to such "or-

dinary talk of non-lawyers" is the "surest sign of muddle."
22 To il-

lustrate this difference, Ackerman describes an example of "or-
dinary property talk." A child growing up in America gradually
learns that some things are his and that some are not. He owns the
former and can do with them what he likes, subject only to the limit
that he cannot use them in a manner unduly harmful to others.
Those things he does not "own" can be used only with the owner's
permission, except in emergencies.

23 The Scientist, however, "rebels
at the thought that a single person can be properly identified as the
owner of a thing."24 Rather, "Scientific property talk" is concerned
with

the relationships that arise between people with respect to
things. . . .

Indeed, so far as the Scientist is concerned it would be

much better (but for the inconvenience involved in abandon-
ing shorthand) to purge the legal language of all attempts to

identify any particular person as "the" owner of a piece of
property.25

The second fundamental difference turns on the source of princi-
ple to which the resolution of a particular dispute is to conform.

Policymakers

understand the legal system to contain, in addition to rules,
a relatively small number of general principles describing
the abstract ideals which the legal system is understood to
further. It is this statement of principle, presumed by the
Policymaker to form a self-consistent whole, which [this

discussion will] call a Comprehensive View.26

"Id. at 10.
22
Id. at 10-11. The classic example of Scientific language, thus defined, are the

writings of Wesley Hohfeld. Id. at 11, 194 n.15 (citing W. Hohfeld, Fundamental
Legal Conceptions (1919)).

2S
B. Ackerman, supra note 1, at 97-100.

2
*IcL at 99 (emphasis in original).

"Id. at 26-27 (emphasis in original).

"Id. at 11 (footnotes omitted).



1978] BOOK REVIEW 505

And it is this Comprehensive View that provides the Policy-
maker's standards for evaluation of legal rules. Of course, the solu-

tion to a particular problem depends upon the particular Com-

prehensive View chosen. But whether it be Kantian27 or Utilitarian,
28

the direction of appeal to authority is the same.

Observers, on the other hand, test a legal rule by measuring the

extent to which it

vindicates the practices and expectations imbedded in, and

generated by, dominant social institutions. . . . Rather than

grounding his decision in a Comprehensive View stating the

ideals the legal system is understood to serve, the Observer

will instead seek to identify the norms that in fact govern

proper conduct within the existing structure of social institu-

tions. Having articulated the existing pattern of socially bas-

ed expectations as sensitively as he can, the Observer will

then select the legal rule which, in his best judgment, best

supports these institutionally based norms.29

Edmund Burke30 and Justice Holmes fit the pattern of the
Observer.31

The difficulty a reader may have in envisioning the types in ac-
tion is mitigated to a substantial extent by the devotion of the ma-

jor portion of the book to demonstrating the consequences, in the

context of just-compensation cases, of selecting one or the other ap-

proach. But before proceeding to this demonstration, Ackerman in-
troduces another set of variables: The judge's perception of his role
as judge. A judge may be either restrained or innovative. The total-
ly restrained judge makes certain assumptions, the major of which
is that the dispute brought before him must be treated as if it had

"See id. at 71-87. Professor Ackerman explains that his use of the term "Kantian"
is somewhat specialized. By it, he is describing a recent trend among political theorists
— i.e., Rawls, Nozick, Dworkin — that is roughly anti-utilitarian, and harmonic at least
insofar as it agrees that the central flaw of utilitarianism is, in Dworkin's phrase, its

failure to "take rights seriously." Id. at 83, 227 n.30.
2tSee id. at 43-70.
M
Id. at 12. The author anticipates the contention that his terms may produce

another pair: The Scientific Observer, and the Ordinary Policymaker. He explains that
he need not take them into account because the Scientific Observer is likely only to
succeed in telling the Ordinary Analyst what he already knows. As for the Ordinary
Policymaker, his basic assumption, that social practices are organized around a Com-
prehensive View, is empirically false. Ackerman does not, however, deny the ex-
istence, then and now, of these types. Id. at 17-20.

*°See, e.g., E. Burke, Reflections on the Revolution in France (1790), for a
representative work of this eighteenth century political thinker.

31
B. Ackerman, supra note 1, at 179. See also sources discussing Holmes in id. at

282 n.40.



506 INDIANA LAW REVIEW [Vol. 11:501

been generated by a set of perfectly functioning institutions.82 The
innovative judge, however, takes into account as part of his calculus

that the world falls far short of perfection. He will thus use his of-
fice to improve the existing state of the law.

83 For example, the

totally restrained Policymaking judge assumes that property rights

are distributed consistently with the operative Comprehensive

View, and that the organs of government as well as private citizens

conform in their actions and faiths to that Comprehensive View. He
is thus conservative regarding the state of the law, deferential to

nonjudicial organs, and principled because he trusts that litigants

and other concerned citizens accept the Comprehensive View to
which the decision conforms. His innovative brethren, by com-

parison, are respectively reformist (believing that the law is not

right), not deferential, and pragmatic where adherence to principle
seems to produce results unacceptable to significant interests in the

system.84

This analysis of types seems to me a helpful contribution to the
description of judicial behavior, particularly as it identifies varieties

of restraint and innovation which can coexist in a single judge who
thereby resists typing as simply restrained or simply innovative as

the case may be. A full-scale development of these characteristics
would in itself be a worthwhile offering to legal scholarship, but

Ackerman is chasing another theme to which we must now return:
The consequences of being an Ordinary Observer or a Scientific
Policymaker, whether restrained or innovative.

That the choice makes a difference is, of course, critical to
Ackerman's whole enterprise; and so he properly devotes the major
portion of the text to demonstrating the difference. The reader will
have to decide for himself whether he makes his case, though I
found the argument persuasive. An illustration may give a sense of
the whole.

Consider the case of the owner of two Cadillac automobiles, each
worth $5,000. In response to the world energy crisis, suppose the

government considers two measures: (a) Setting the maximum speed
limit at twenty-five miles per hour (alternative A), or (b) leaving the

speed limit intact but taking possession of one-half of the nation's

automobiles (alternative B). Assume further that under alternative
A the value of each car will depreciate by $2,000, leaving our owner

i2
I<L at 34.

33
Id. at 36.

3t
Id. at 34-39. Of course, a given judge's assumptions may vary so that while he

may assume a perfectly functioning set of institutions, he will not always assume
citizens will suffer an adverse decision without a grievous sense of loss. Thus, while

conservative and even deferential, he may not always be principled, but rather
pragmatic. We thereby have eight possible varieties of judges. Id. at 39, 204 n.8.



1978] BOOK REVIEW 507

$4,000 poorer. Under alternative B, the loss is the same because,

though one car is lost, the decrease in cars causes his remaining

Cadillac to increase in value from $5,000 to $6,000. Yet, though the

economic loss is the same, present compensation law, which, we
must recall, is largely the product "of a corps of Ordinary Observers

who understood their judicial function in a rather restrained
fashion,"

35
will regard alternative B as a "taking" that will likely call

for compensation, while under alternative A our Cadillac owner will
be left to suffer the loss as best he can. Such an apparent disparity

accords with the ordinary understanding of what constitutes a com-

pensable "taking" of property and what constitutes only a regula-

tion,
36 and hence is but slightly, if at all, disturbing to those who talk

"ordinary property talk" (which is the great majority of people).

The Scientific Policymaker, however, balks at this seemingly
oversimplified view. For example, the Utilitarian Scientific Policy-

maker, at least one of the restrained variety, given the redistribu-

tion of property rights that has occurred, will consider the Appeal

to General Uncertainty:37 that is, that increased economic uncertain-

ty may cause particularly risk-averse individuals to adapt their
behavior to less risky forms of wealth or at least to insure against a

new risk. This uncertainty cost must be compared to the process
cost: that is, to the cost of eliminating the uncertainty by providing

a compensation system. There is also to be considered the possibili-

ty and cost of citizen disaffection. If uncertainty and disaffection

costs exceed process costs, then the Utilitarian Scientific Policy-

maker will award compensation.38

The Kantian Scientific Policymaker perceives other problems.
The principle that no individual should be used merely as a means
to satisfy another's ends requires a comparison of the net benefit

generated by the redistribution and the process cost of a compensa-
tion system. If the latter are less than the former, compensation

may be forthcoming.39

Even assuming that each of our types would demand compensa-
tion under alternative B, calling for the seizure of automobiles by
the government, differences would exist in determining the proper
measure of compensation: the Policymaker being apt to award the

36/d at 109 (emphasis in original).
3>
Id. at 124-29. We are talking only of the establishment of a prima facie case of

"taking." It is still to be decided whether the taking was necessary to prevent
recognizable anti-social conduct, in which case compensation might be denied, even

under alternative B. See, e.g., id. at 126, 243 n.30. See also text accompanying note 18
supra.

37
B. Ackerman, supra note 1, at 44.

°*Id. at 48.
39M at 72-73.



508 INDIANA LAW REVIEW [Vol. 11:501

net loss of $4,000; the Observer, the $5,000 value of the lost

Cadillac.
40

So far as this and many other examples demonstrate that what
is a "sensible" solution depends on the choice of the source of

"sense," we see the reality underlying the tension which Ackerman
perceives as coloring the present state of legal thought. While most

of present compensation law is the product of Ordinary Observers,
41

— though the "deeper structures" of precedent have been "lost from
view"42 — Ackerman finds that an increasing number of sophisticated
lawyers and judges are thinking and writing about law, consciously

or not, as Scientific Policymakers.
48

Scientific Policymaking, he con-

tends, has been particularly triumphant in the law schools —

a

phenomenon bound to radiate increasing influence as new genera-
tions of lawyers so schooled rise to positions of prominence in the

profession. Thus, Ackerman argues, we are not confronting "some
theological dispute between rival Popes temporarily quartered at

Oxford, Chicago, and Yale."44 If that were the case,

it would be of no practical importance to lawyers. Yet if, as I

suspect, the conflict between Scientific Policymaker and Or-

dinary Observer is emerging as one of the master issues in

the professional practice of law, lawyers cannot afford to

view these academic exercises in mutual incomprehension

with casual disdain or idle curiosity.46

The author's quest to "establish a relationship between philoso-
phy and constitutional law"46 seems to me successful. As well, his
analysis of the tension in American legal thought, a tension to some
extent exemplified by the cold war between the bar and the
academy, is also insightful. The lines, however, are not drawn neat-
ly. I wonder whether his assessment of the clear predominance of
the Scientific Policymaker in the law schools is not confined

somewhat to the type of "Papal residence" he refers to, though this
predominance may well emerge in the majority of law schools in the
future. Elsewhere, the tension is being manifested in a type of skir-

mish of which he takes little note: The growing demand from the
bench and bar for graduates with "lawyering skills." The burgeon-
ing of clinical programs represents, in part, the schools' concessions

"Id. at 127.

"See text accompanying note 35 supra. See also B. Ackerman, supra note 1, at
168.

42
B. Ackerman, supra note 1, at 168.

,3
Ia\

"Id. at 175.

"Id.

"Id. at 72, 273 n.7.



1978] BOOK REVIEW 509

to this demand — a demand which translates, in Ackerman's terms, in-
to a young lawyer "skeptical of systematic thought," who is a "hard-
headed problem-solver," and who depends upon "his common-sense
understanding of social expectations"47 to solve problems. Of course,

lawyering skills are not inherently incompatible with an apprecia-

tion of the importance of philosophy in law, or of Scientific Policy-

making as I understand it. Nevertheless, it seems that champions of
such programs are not infrequently apt to be impatient with the

systematic, more profound, or "theoretical" concerns of law. Techni-
cians seem more in demand than social engineers. And it is not un-
common, even in the schools, to hear that the future of legal educa-
tion lies in the teaching of practice skills. So far as "Oxford, Chicago,

and Yale" and other centers of intellectual power are set on a dif-
ferent course, we might anticipate an increasingly deeper running
division in the bar between the technician and the planner, the lat-
ter group, as it gravitates to centers of political power, taking on

the characteristics of an elite.

Professor Ackerman makes a stout effort to keep his essay from
becoming a broadside in favor of Scientific Policymaking.48 His for-

mal concern is with the possibilities and ramifications of fundamen-

tally different modes of legal thought, though I think his preference
for the Policymaker shows through. Nevertheless, he provides a
language technique which clarifies a tension which many lawyers
have sensed, but only dimly understood. He displays possibilities,
not goals. While in a time of uncertainty and faithlessness the logic

and comprehensiveness of philosophical systems may seem almost
irresistible, the nation's very diversity — a diversity reflected in its
law schools — may nourish sufficiently the bedrock skepticism which
has made American legal thought so characteristically modest and
so committed, if unconsciously, to the vantage of the Ordinary

Observer. Whatever the future, this book serves an essential pur-
pose of illuminating available directions, and at its most practical
level, it is a valuable appraisal of just-compensation law.

"Id. at 187. This is not, of course, a new phenomenon. See, e.g., D. Boorstin,
supra note 12, at 44 (a bibliographic note commenting on the American law schools'
"myopic preoccupation with what is in current demand by practitioners").

"See, e.g., B. ACKERMAN, supra note 1, at 176-84.