The Total Takings Myth

For almost thirty-five years, the U.S. Supreme Court has attempted to carve out a total takings doctrine within its regulatory takings jurisprudence. Most regulatory takings claims are evaluated under the “ad hoc” threefactor test first articulated in Penn Central Transportation Co. v. City of New York. Exceedingly few of these claims are successful. But the Court has identified certain categories of government actions that are compensable takings per se, otherwise known as total takings. This began in 1982 with Loretto v. Teleprompter Manhattan CATV Corp., where the Court held that a land use ordinance requiring a landowner to endure a permanent physical occupation of a portion of her property is always a compensable taking. Ten years later, in Lucas v. South Carolina Coastal Council, the Court held that a land use restriction depriving an owner of all economically viable use of her property is also compensable per se. Finally, in 2015, in Horne v. Department of Agriculture, the Court extended its total takings jurisprudence to personal property, announcing that the government appropriation of personal property is a per se compensable taking. Although the Court has had more than three decades to articulate theoretical justifications for its total takings jurisprudence and to provide guidance for lower courts in determining when a regulation constitutes a total taking, it has failed to do so. This failure reflects the underlying reality that the total takings doctrine is a myth. More particularly, the categories that the Court has identified as constituting total takings are analytically incoherent, and the terms the Court has used to demarcate total takings from regulations that are not per se compensable cannot be applied in the real world. As a result, lower courts struggle to apply the total takings doctrine and the case law remains in utter disarray. In fact, lower courts have resorted to creating “shadow” total takings doctrines that rely on obvious distortions of the plain meaning of outcome-determinative terms and deflect attention from the fundamental question of whether compensation is warranted. This Article argues that the Court’s attempt to create a total takings doctrine has failed, and that the Court should repudiate it. It demonstrates that the Court’s initial total takings opinions were conceptually incoherent and woefully undertheorized. And it shows that attempts by lower courts to rehabilitate the doctrine by crystallizing the bright-line rules through careful and consistent application were doomed to, and did, fail. This Article also explains why the entire enterprise was misguided from the start. Although bright-line rules have their place, it is not in the heart of regulatory takings doctrine, which is premised on concerns for fairness and justice in distributing the burdens of land use regulation. Last term, the Court had a perfect opportunity to begin the process of repudiating the total takings myth. Murr v. Wisconsin was a run-of-the-mill regulatory takings case masquerading as a Lucas-type total takings claim, and it presented the Court with a vehicle to either remedy the central doctrinal incoherence of Lucas’s bright-line rule or to overrule Lucas and turn its attention to the much needed task of clarifying and refining the Penn Central test. Instead, by offering a new multifactored test in a sort of regulatory takings “step zero,” the Court in Murr merely exacerbated the core flaws of the Lucas bright-line rule. Now, more than ever, it is imperative that the Court recognize and begin to dismantle the total takings myth

High-fidelity resonator-induced phase gate with single-mode squeezing

We propose to increase the fidelity of two-qubit resonator-induced phase gates in circuit QED by the use of narrowband single-mode squeezed drive. We show that there exists an optimal squeezing angle and strength that erases qubit 'which-path' information leaking out of the cavity and thereby minimizes qubit dephasing during these gates. Our analytical results for the gate fidelity are in excellent agreement with numerical simulations of a cascaded master equation that takes into account the dynamics of the source of squeezed radiation. With realistic parameters, we find that it is possible to realize a controlled-phase gate with a gate time of 200 ns and average infidelity of $10^{-5}$

Partially Symmetric Functions are Efficiently Isomorphism-Testable

Given a function f: {0,1}^n \to {0,1}, the f-isomorphism testing problem requires a randomized algorithm to distinguish functions that are identical to f up to relabeling of the input variables from functions that are far from being so. An important open question in property testing is to determine for which functions f we can test f-isomorphism with a constant number of queries. Despite much recent attention to this question, essentially only two classes of functions were known to be efficiently isomorphism testable: symmetric functions and juntas. We unify and extend these results by showing that all partially symmetric functions---functions invariant to the reordering of all but a constant number of their variables---are efficiently isomorphism-testable. This class of functions, first introduced by Shannon, includes symmetric functions, juntas, and many other functions as well. We conjecture that these functions are essentially the only functions efficiently isomorphism-testable. To prove our main result, we also show that partial symmetry is efficiently testable. In turn, to prove this result we had to revisit the junta testing problem. We provide a new proof of correctness of the nearly-optimal junta tester. Our new proof replaces the Fourier machinery of the original proof with a purely combinatorial argument that exploits the connection between sets of variables with low influence and intersecting families. Another important ingredient in our proofs is a new notion of symmetric influence. We use this measure of influence to prove that partial symmetry is efficiently testable and also to construct an efficient sample extractor for partially symmetric functions. We then combine the sample extractor with the testing-by-implicit-learning approach to complete the proof that partially symmetric functions are efficiently isomorphism-testable.Comment: 22 page