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Published online by Cambridge University Press: 20 August 2019
When state regulations prevent owners from certain uses of their property, is this action of the state a taking of property which requires compensation? One way of answering this problem, within a framework viewing property as a bundle of rights, is to inquire into whether the incident of use is an essential element of the bundle making up the property. Given the difficulties with figuring out what is essential and what is not, I propose an alternative solution, which does not give up the bundle-of-rights framework, but which, while assuming all incidents to be equally essential, it concentrates, instead, upon the legal entitlements conveying those incidents. I begin by arguing that while the incident of possession may be expressed by a right to exclude, the incident of use is expressed by a Hohfeldian liberty, and then I consider the consequences of this argument for the question of regulatory takings. I argue that while the liberty to use does not render the incident of use meaningless (at least, insofar as regulation of property use is concerned), there is nonetheless a significant distinction between transgressing a right and transgressing a liberty, and this implies that what it takes for an infringement of the right to exclude to be translated into a taking of the (whole) property is less than what it takes for the infringement of the liberty to use to be translated into a taking of property. As I show in the paper, we can achieve this result either by means of an argument from ‘constitutional residue’ or by means of an argument from the specification of constitutional rights.
I am indebted to the editors for very generous comments and suggestions for improving the text. I would also like to thank Emi Socaciu and an anonymous reviewer for comments.
1. E.g., Andrus v Allard  444 US 51 at 65-66; Penn Central Trans Co v New York City  438 US 104 at 130-31.
2. Epstein, Richard A, Taking: Private Property and the Power of Eminent Domain (Harvard University Press, 1985) at 57-92Google Scholar (arguing that the right to use is a necessary compliment of the right to property, and that regulatory policy takes away this right); Richard A Epstein, “Bundle-of-Rights Theory as a Bulwark Against Statist Conceptions of Private Property” (2011) 8:3 Econ J Watch 223 (arguing that unified bundles are a protection against the government); Emily Sherwin, “Two- and Three-Dimensional Property Rights” (1997) 29 Ariz St LJ 1075 at 1096-99 (arguing that, in addition to objects and the individuals assigned, property rights have a third dimension, concerning use). This variant of bundle-of-rights is criticized in Leif Wenar, “The Concept of Property and the Takings Clause” (1997) 97:6 Colum L Rev 1923 at 1924 (holding that the Hohfeldian conception implies that the constituent entitlements of property should be held intact). Such a conception of the bundle-of-rights view of the property is more common to the Civilian Law jurisprudence. See Yun-chien Chang & Henry E Smith, “An Economic Analysis of Civil Versus Common Law Property” (2012) 88 Notre Dame L Rev 1 (arguing that the Civilian tradition, following the Roman law, has a top-down approach, from the core of the property to the incidents, while the Common Law tradition, following the feudal system of fragmented rights, has a bottom-up approach, from the incidents to the core).
3. E.g., Kaiser Aetna v Unites States  444 US 164 at 179-80 (the right to exclude, “so universally held to be a fundamental element of the property right” cannot be taken without compensation).
4. It could be objected that the Hohfeldian jural positions are neutral legal categories, which could not explain the distinction between the incidents of property, since such distinction has to do, to a large extent, with normative, extra-legal reasons. However, this objection would have been fatal if the incidents being expressed by two different jural positions (which is my claim) explains the normative distinction between the incidents of property (which is not my claim). The fact that the two incidents are conveyed by means of two different legal media is not something that defines the incidents, helping us to distinguish between them, but it is something extrinsic to the incidents themselves (something that happens to them in virtue of some independent features). In this sense, being expressed through a certain legal medium does not have a practical relevance or importance with regard to issues such as the definitory features of the concept of property (here what is relevant is something like the content of the incident, which is intrinsic to the incident). Nevertheless, the fact that the incidents are expressed by two different legal categories has a practical relevance or importance in regard to something else. It pertains to the importance of the incidents concerning what counts as property taken, for the purposes of the eminent domain. The Hohfeldian jural positions do their work only after normative (pragmatic, value-based, etc.) reasons have established that a certain incident is part of the right to property (even though I have assumed, rather than argued, that the incidents of possession and use are equally essential for the right to property, the argument in this paper should be seen as conditional on this assumption). The objector, however, could accept all this, but point to a related problem: the task of establishing the importance of the incidents with regard to the question of what counts as a taking is itself a task relying, to a large extent, on normative (extra-legal) reasons, such that relegating the burden of accomplishing that task to some Hohfeldian normatively neutral categories is problematic. However, my argument in this section will aim precisely at showing that, in the case of the incident of use, there are pragmatic, extra-legal reasons which constrain what form of Hohfeldian category the incident of use could take (see below). In this sense, the fact of the use being expressed through a Hohfeldian liberty is a result of a normative inquiry, and for this reason, the task of determining what counts as a taking, though undertaken at a conceptual legal level, will rely indirectly on normative reasons.
5. Throughout this article, when I am referring to the ‘right to property’, I do not mean a claim-right to exclude, but I mean rather an aggregate of jural positions, in the sense of rights as molecular structures—see Carl Wellman, Real Rights (Oxford University Press, 1995) on this. By contrast, when I am referring to the right to exclude, I mean a Hohfeldian claim-right.
7. Wesley Newcomb Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning, and Other Legal Essays (Yale University Press, 1919) at 39-41Google Scholar.
8. By using Hohfeld’s concepts of claim-right and liberty, I am not thereby committed to other features of his thought, such as the decomposability of in rem right-duty relationships to in personam relationships (see Hohfeld, supra note 7 at 95). I think Hohfeld’s distinction between liberty and claim-rights is compatible with (and the insight of the distinction is not lost by) holding that a claim-right is against the world, where the world is not simply the aggregate of all other individuals. See also infra note 25.
9. My argument that the incident to use cannot be expressed through a Hohfeldian claim-right is based upon normative-pragmatic considerations, as I have mentioned in note 4. These considerations do not pertain, however, to controversial moral positions, but to pragmatic ‘conditions of possibility’ and to noncontroversial efficiency considerations: given the structure of the Hohfeldian claim-right, guiding the social interactions by such a jural position would defeat the very purpose of having the legal entitlement in question, or it would conflict with the basic premises of interaction in modern societies. This is not an argument stemming from the inner nature of the Hohfeldian categories, but from the interaction of such an inner nature with the extrinsic features of the social interaction in which such categories are supposed to function. These considerations could help us overcome an objection of the following sort. Amnon Lehavi, The Construction of Property. Norms, Institutions, Challenges (New York: Cambridge University Press, 2013) distinguishes in the first chapter between the content of the property (the way a state decides to formulate a property regime), which should be in his conception entailed by normative, extra-legal considerations, and the structure of property, which is the basic sine qua non legal form of property and which is mostly normatively neutral (i.e., it does not entail normative positions with regard to the content of property). Now, in light of this distinction, my argument that the incident to use must be expressed by a Hohfeldian liberty could be understood as (i) one which seeks to determine the structure of property (since it concerns a basic legal form), in which case it would be wrong because it would put too much into the structure, no longer leaving room for extra-legal normative considerations to influence the content of property (i.e., the structure establishes the content of property) that a society could choose, or, alternatively, as (ii) using a normatively neutral legal structure (the Hohfeldian legal category) to derive the content of property (the property characterized by the liberty to use). However, as far as (ii) is concerned, this should not be worrisome, since the content of the property is not derived solely from a Hohfeldian category, but it is based upon normative-pragmatic considerations, pertaining to the interaction between the structural nature of the legal category and the social environment (we could, nonetheless, understand my argument as structural, if by ’structural’ we mean pertaining to the real-world conditions for the functioning of a legal system, but this does not make it less normative in the sense specified above). As far as (i) is concerned, I do not think that the worry of putting too much into the structure is founded, since (a) the structure itself has been justified on normative grounds, such that, even though it leaves little room for other normative considerations, the structure compensates for this by being itself a result or a summary of other normative considerations, and (b) I think that the legal structure should not be seen as providing an exclusionary reason for adopting a certain content, but rather a pro tanto reason. On this perspective, the property defined by the liberty to use could be seen as establishing only a default content of property, but which could be adjusted on a case by case basis to meet new normative expectations.
10. This is especially so, since the generation of the right to exclude (and the liberty to use) could be understood as resolving the problems of managing the common resources by decreasing, inter alia, the costs of monitoring the monitoring the contributions to the public goods. See Robert Ellickson, ”Property in Land” (1993) 102 Yale LJ 1315. In this sense, a process-based right to use would seem to reintroduce, in another form, the very problems to which the private property was designed as a solution.
11. Of course, on a strict liability view of rights to use, we would not need to make foreseeability a condition; any interference with the right to use would count as a violation. However, a strict liability construction of the right to use would be utterly implausible: it would take everybody to cease interacting with everybody else in order not to risk interfering with their uses of property.
12. A right is violated when the transgressor has acted impermissibly; a right is infringed when the transgressor has acted permissibly. See Judith Jarvis Thomson, “Some Ruminations on Rights” in William Parent, ed, Rights, Restitution, and Risk (Harvard University Press, 1986) at 51. I want to remain neutral here concerning the validity of the violating/infringing objection.
13. The requirement to compensate or to apologize has the moral function to overcome a “moral residue”, which was produced by the infringement of the right, and which expresses the fact that the infringer is indebted to the infringee. See John Oberdiek, “Lost in Moral Space: On the Infringing/Violating Distinction and Its Place in the Theory of Rights” (2004) 23:4 L & Phil 325 at 331.
14. Larrisa Katz, “Exclusion and Exclusivity in Property Law” (2008) 58:3 UTLJ 275 at 278, 290; Eric R Claeys, “Jefferson Meets Coase: Land-Use Torts, Law and Economics, and Natural Property Rights” (2010) 85:4 Notre Dame L Rev 1379 at 1403-04, 1435; Eric R Claeys, “Property 101: Is Property a Thing or a Bundle?” (2009) 32 Seattle U L Rev 617 at 633; Eric R Claeys, “Exclusion and Private Law Theory: A Comment on Property as the Law of Things” (2012) 125:1 Harv L Rev 133 at 143.
15. For example, Katz’s idea of exclusive use determination can be specified only through a qualified right to exclude (the right is violated only by trespass which is not in accordance with the owner’s agenda). See Katz, supra note 14 at 301.
16. This sense of the right to exclusive use determination is closer to Katz’s idea of agenda-setting (see supra note 14).
17. This construction of the right to exclusive-determination is closer to Claeys’ notion of the owner’s right to the freedom to choose the uses of his or her property. See Claeys, “Jefferson Meets Coase”, supra note 14 at 1435.
18. Claeys, “Jefferson Meets Coase”, supra note 14 at 1410, 1435, considers the restriction of options that owners have with regard to the use of their property, to be in tension with the owners’ right to exclusive use determination of their properties.
19. Glanville Williams, “The Concept of Legal Liberty” (1956) 56:8 Colum L Rev 1129 at 1130, 1146-47; Matthew Kramer, “Rights Without Trimmings” in Matthew Kramer, NE Simmonds & Hillel Steiner, A Debate Over Rights: Philosophical Enquiries (Oxford University Press, 1998) at 11-12.
20. Alessandro Spena, “The Strange Case of the Protective Perimeter: Liberties and Claims to Non-Interference” (2011) 31:2 L & Phil 161 at 173-74, claims that liberties are entitlements to aim at something, but not also to attain something.
21. The view that property rights are characterized at least by a right to exclude and the liberty to use can be found objectionable, beyond the grounds that I will discuss below, on the ground that it seeks to impose an essence of property, which is too strong to account for the variety of forms of property. See, in this regard, Lehavi, supra note 9 (arguing that identifying the property with features, such as the right to exclude, amounts to a form of essentialism, which seeks to pre-determine at the level of basic legal structure, the content property could take in various legal systems). However, this could be answered in the following way. Firstly, my main argument thus far has been that property is characterized by a liberty to use, rather than a right to use (I have assumed a right to exclude, but my argument does not depend on property being generally defined through a right to exclude). A liberty to use is able to accomodate a higher range of possible jural positions that the society could decide to ascribe to the owner than could a right to use. In this sense, the structure of property pre-determines the content to a lower degree than it does in the case of the essentialists criticized by Lehavi. Secondly, I have distinguished between incidents and the jural positions through which they are expressed; only the former are essential to defining the concept of property; it is a further task, that of deciding through what legal form to express the content of the incidents, and this task could well be achieved by considering extra-legal normative reasons (or could be left to the democratic process). Nonetheless, I have argued that property, as a general matter, should be characterized by at least one Hohfeldian category, and this could be said to pre-determine the content the property could take. However, as I have argued above (see note 9), this implication should not be seen as problematic. Thirdly, I think that my position in this essay can account for Lehavi’s argument against essentialism. He argues that if viewing the property—at a structural level, as consisting of substantive properties, such as the right to exclude, would preclude from accounting for various forms of property. The specificity of forms such as the common property or the lease could be accounted within the perspective of what I have said thus far in this essay, by (i) the existence of other incidents, such as, for example, the incident of management, which could be conveyed legally through various legal media allowing, for example, co-ownership, or restricted rights and powers; (ii) the fact that the right to exclude and the liberty to use are conceived as only default jural positions, which could be changed if normative considerations require it. Insofar as the property of corporation is concerned, I think that the essentialist can account it in terms of an abstract, divided ownership (contra Lehavi, supra note 9 at 199). The reason for this is that the essentialist can view property as an “office of ownership” (see Christopher Essert, “The Office of Ownership” (2013) 63:4 UTLJ 418), such that the corporation itself could be identified with that office. Viewing property in this way, moreover, has the advantage of avoiding asking metaphysically dubious questions such as ‘who is the owner of the corporation?’ (the corporation is a legal construct or a set of rules identifying roles; one could not, as such own a legal construct; similarly, the office of ownership is occupied, but not owned from outside). If the corporation as a whole is identified with the office of ownership, then the shareholders need no longer be identified as owners or as engaged in forms of property (that do not necessarily entail ownership); they are defined instead by the roles within that office (and that role corresponds more to members of a legislature, and this accounts more naturally, for the differences in power between them, than does conceiving them as owners).
22. There are more criticisms of the ‘bundle theory’ in the literature, but they target different ideas. Besides the criticism levelled at the bundle theory, where that is taken to mean that the right to property is an aggregate of more jural posistions, there is a criticism levelled at the bundle theory, where that it taken to hold that the in rem right-duty relationship of property rights is decomposable into (or is an aggregate of) individual relationships (for the original expression of this thesis, see Hohfeld, supra note 7 at 95). For advocates of such a view of the bundle theory, see Pavlos Eleftheriadis, “The Analysis of Property Rights” (1996) 16:1 Oxford J Legal Stud 31; Avihay Dorfman, “Private Ownership” (2009) 16 Legal Theory 1 (arguing that what distinguishes property from ownership is the power of the owner to decide who can enter the property, and this power implies that the duty of the others is dependent on the owner, which makes their duty individualized or in personam). This idea has been criticized on two grounds. Firstly, concerning the right part of the right-duty relationship, it has been held that the right to property cannot be one that the owner negotiates with every non-owner, since that would not explain the persistency of the right beyond the particular right-holders. See Essert, supra note 21. Secondly, concerning the duty part, it has been argued that, just as the right against others not to trespass does not is not dependent on the identity of the right-holder, so neither is the duty correlative to that right, dependent on the identity of the particular duty-holders, for otherwise the right to property would vary in scope with the fluctuations in population. See James Penner, “On the Very Idea of Transmissible Rights” in James Penner & Henry E Smith, eds, Philosophical Foundations of Property Law (Oxford University Press, 2013) at 244. However, the truth or falsity of this ‘bundle of rights’ theory is immaterial concerning the truth or falsity of the picture of property rights as a bundle that I endorse here.
23. Thomas W Merrill, “Property and the Right to Exclude” (1998) 77:4 Neb L Rev 730.
24. Thomas W Merrill & Henry E Smith, “What Happened to Property in Law and Economics?” (2001) 111:2 Yale LJ 357; Thomas W Merrill & Henry E Smith, “Making Coasean Property More Coasean” (2011) 54:4 JL & Econ S77; Thomas W Merrill & Henry E Smith, “The Property/Contract Interface” (2001) 101:4 Colum L Rev 773 at 791-98; Henry E Smith, “Property as the Law of Things” (2012) 125: 7 Harv L Rev 1691 at 1704. The arguments made by Merrill and Smith do not apply to all forms of property, since certain forms, such as common property or property held in trust, in which the management is based not upon delegation to the owner’s discretion, but upon contract-like arrangements and enforceable norms. See Gregory S Alexander, “Governance Property” (2012) 160:7 U Pa L Rev 1853; Anna di Robilant, “Property: A Bundle of Sticks or a Tree?” (2013) 66:3 Vand L Rev 869.
25. Consider, by analogy the following argument: Being a rational animal is a necessary (and sufficient) condition for being human; Being a rational animal entails being a living entity; therefore, being a living entity is a necessary condition for being human. At the same time, being a living entity is not a sufficient condition for being human.
26. Of course, there can be situations in which conceptually, A has the right to exclude B from Blackacre, but A herself has a duty not to enter Blackacre. However, even in these cases, we could still say that A has a liberty to use, since A is at liberty to determine how Blackacre is being used, by restraining B’s access to it.
27. Henry E Smith, “Self-Help and the Nature of Property” (2005) 1:1 JL Econ Pol’y 69 at 75-76. Smith says that the ‘default package’ contains “at most” a liberty to use, but, the point is that the respective liberty comes by default, together with the right to exclude, and is not the object of easements and additional contracted rights. Since the author usually criticizes (see supra note 24 and accompanying text) a view of property modeled on precisely such contracted rights, for entailing a sub-optimal system of rights, the author’s admission that an efficient system of rules entails pre-contractual liberties (as opposed to rights) to use, shelters the liberties to use from the critique of being inefficient; this takes away the principal reason for which we should not see the liberty to use among the essential entitlements of the right to property.
28. Adam Mossoff, “The Use and Abuse of IP at the Birth of the Administrative State” (2009) 157:6 U Pa L Rev 2001 at 2004-13 and Adam Mossoff, “The False Promise of the Right to Exclude” (2012) 8:3 Econ J Watch 255 at 256, emphasize not only the compatibility, but also the affinity between the right to exclude conception of the property right and the bundle theory (construed to imply a liberty, not a right, to use).
30. HLA Hart, Essays on Bentham: Studies in Jurisprudence and Political Theory (Clarendon Press, 1982) at 171; Williams, supra note 19 at 1144; Kramer, supra note 19 at 11-12.
31. See Hohfeld, supra note 7 at 96-97.
32. The concept of liberty could be employed in a normative argument independently of the concept of property rights. See, e.g., Cheyney C Ryan, “Yours, Mine, and Ours: Property Rights and Individual Liberty” (1977) 87: 2 Ethics 126.
33. What my argument supports is only a demand against the state, not also a demand against other private individuals. The liberty does not entitle anyone to expect anything from others, and the existence of a liberty does not make conceivable any such interpersonal demands; it is only a conceivability condition for claims against the state.
34. This point seems to run counter to the idea that liberties cannot be violated or infringed, but only “erroneously” denied in their existence. See Rowan Cruft, “Why Aren’t Duties Rights?” (2006) 56:223 Phil Quarterly 175 at 189.
35. There is a vague analogy between this construction of infringement and the issue of what counts as restricting freedom. If the freedom of X is the entitlement to not be prevented by Y from doing Z, then, on an account of rights-based freedom, the Z parameter contains the actions that X has a right to do, and the Y parameter specifies, once the actions in the Z parameter are defined, what counts as an interference with those actions. In this sense, it seems that restricting the scope of the actions in the Z-parameter does not infringe freedom. Ralf Bader, “Moralizing Liberty” in David Sobel, Peter Vallentyne & Steven Wall, eds, Oxford Studies in Political Philosophy, vol 4 (Oxford University Press, 2018) 141. However, to keep the analogy with my account of infringing legal entitlements, it can be said that there could actually be an interference with freedom along the Z-parameter, if the actions defined in this parameter do not correspond to the actions that the agent has a right to in a higher-level parameter (e.g., the legislature could deny that the agent has a right to, or is free to, do actions which she has constitutionally a right to do or is free to do). This interference would not consist in preventing what is already defined for the agent, but in failing to define properly (this failure is not a prevention like the one in the Y-parameter, which is interfering with an exercisable right, but rather, the failure is to turn a guaranteed right into an exercisable one—assuming that constitutional rights do not apply directly, but require legislative specification, which can operate within or outside the constitutional boundaries).
36. This kind of infringement of a contractual right seems different from the kind of infringement that it occurs in a situation in which A has a contractual right against B, but an unauthorized trustee cancels B’s duty without A’s consent. See Pey-Woan Lee, “Inducing Breach of Contract, Conversion and Contract as Property” (2009) 29:3 Oxford J Legal Stud 511 at 531. In this situation, we can say that the infringement of the contractual right has occurred along the E-parameter, since its existence has been impermissibly denied.
37. It could be said that the distinction between the E-Parameter and the O-Parameter is an unnecessarily fancy piece of terminology for conveying a rather trivial idea. This is true; however, it is aimed at facilitating the argument (by making it more salient and easy to identify the levels of analysis) that will come concerning the contrast between the right to exclude and the liberty to use in the eminent domain context.
38. Spena, supra note 20.
39. I want to clarify that when I refer to takings of liberty to use, I actually refer to takings of specific liberties to use, like the liberty to build something on one’s land; it is natural that taking away the liberty to use in toto is a taking of property, since the continuing existence of the right to exclude is a mere formality. However, the question is whether takings of specific liberties to use count as takings of property.
40. The adverb ‘at least’ should be seen only as heuristic, not as part of a rigorous definition. If the state occupies one’s land, without formally transferring the title (infringement on the O-, but not on the E-Parameter), we could see this as a taking. However, in some cases, where the trespass is minimal, as in Loretto v Teleprompter Manhattan CATV Corp  458 US 419, where the state has authorized an unconsented entrance on the property of landlords, in order to install cable television junction boxes, it is harder to see this infringement along the O-Parameter as constituting a taking; for the purposes of the eminent domain area, it seems more intuitive to treat this authorization as taking away a specific liberty to use (the liberty to not have cable television junction boxes installed). The trespass is only a means of carrying out the taking of this specific liberty to use (other means, such as imposing fines, might also involve trespass).
41. When I referred to infringements on the two parameters in the general discussion above, I did not mean to oppose it to violation. However, in the specific context of the eminent domain, I assume for now that making this distinction is appropriate (I will discuss below the case in which we do understand eminent domain through the lens of this distinction).
42. This is somewhat (not fully) analogical to the notion of ‘moral residue’. For the latter, see Oberdiek, supra note 13 at 331. In the case of a ‘moral residue’, which remains after the justified infringement of a right (i.e., a debt left over, which the infringer owes to the person whose right has been infringed), what is being regretted is the state of affairs in which A enjoyed undisturbed her rights. Similarly, in the case of a ‘constitutional residue’, which remains after the justified taking of the title of property, what is being regretted (here from a constitutional, as opposed to a moral perspective) is the state of affairs in which the owner enjoyed the outcome of non-trespass, which her title to property guaranteed.
43. Consider the following analogy: it is the convention of a game that A wins whenever either of the two armies of B is being defeated; however, it takes much more, in terms of A’s effort, to defeat an army, in comparison with the other. The strategies are equally essential in winning, even though the players may strategically treat them differently.
44. I do not want to devise a concrete test here; however, I think that a plausible test would be one in which a taking of the liberty to use is equivalent with a taking of the right to exclude, if and only if sufficiently many specific liberties of use have been taken away so as to render the situation functionally equivalent to one in which the right to property has been taken away (however, other tests could be devised); I think my account is compatible with holding that we could distingish between a partial and a total taking of property: in these cases, we could say that property has been partially taken if sufficiently many specific liberties of use has been taken, so as to render the situation functionally equivalent with taking a part of the possession (i.e., equivalent to the situation in which the state buys ony a part of one’s property).
46. Similarly, Eric R Claeys, “Takings, Regulations, and Natural Property Rights” (2003) 88:6 Cornell L Rev 1549 at 1554, 1567, 1576, 1585-89, following American nineteenth-century natural law jurisprudence, argues that regulations do not count as takings insofar as they increased the owner’s sphere of freedom of use and beneficial uses of property. However, in my account, it is the same liberty to use which, while being regulated, is not restrained (but even increased), while on Claeys’ account, the regulations restrict some entitlements, but do not count as compensable takings of those entitlements, if the scope of other entitlements is increased. Moreover, and more importantly, my account concerned a conceptual distinction between claim-rights and liberties, while Claeys’ account concerned a moral point (rooted in natural rights theory) applicable to all entitlements.
47. On this problem, see Donal Nolan, “Rights, Damage and Loss” (2017) 37:2 Oxford J Legal Stud 255.
48. However, a question that this argument raises is whether we establish something to merit compensation because (among others) compensation could be easily determined, or do we make something compensable in virtue of its meriting compensation, no matter how hard it is to determine the compensation?
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