Fannie Mae Preferred S (FNMAS)

[44centsAKAchoccake]

This is relevant to FNMAS given the ongoing litigation involving Fannie and Freddie

EXCHANGE: Takings, Exclusivity and Speech: The Legacy of PruneYard v Robins

NAME: Richard A. Epstein *

The law of takings, with its ever expanding subject matter, is a sprawling affair with little intellectual coherence. Takings now include, at the very least, the following roughly-defined categories: (1) government or govern-ment-authorized physical occupation of private property; n1 (2) government regulation of the use or disposition of property still owned, albeit in truncated form, by private individuals; n2 and (3) the imposition of price structures in-tended (ideally) to limit the monopoly power of public utilities while providing their owners a reasonable rate of return. n3 The standards of review applied to these takings correspond to the type of case. Exacting (if not quite strict) scrutiny is required whenever the government permanently dispossesses an owner of a property interest. Rational basis review regrettably seems to be the order of the day for regulatory takings, even though this prohibition has been frayed a bit around the edges in land use cases. n4 Last, some form of intermediate scrutiny is ap- plied in rate of return cases; that is, courts allow the government substantial discretion over the mechanics of rate-setting, so long [*22] as the regu-lated firm receives a "bottom line" return appropriate to its level of risk. n5

n2: n2 See, for example, Village of Euclid v Ambler Realty Co, 272 US 365 (1926) (use); Andrus v Allard, 444 US 51, 64-68 (1979) (disposition).