University of Chicago Law Review

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When the government enforces a subpoena duces tecum for the production of physical evidence, why isn't it taking the target's property within the meaning of the Constitution's just compensation requirement? Professor Lawson and Mr. Seidman argue that enforcement of such subpoenas are indeed takings, but that the Constitution's just compensation requirement can be satisfied in most instances through implicit in-kind compensation. There may be exceptional circumstances, however, where the prospect of implicit compensation from a general scheme of forced production of evidence is insufficient to compensate the target for its losses, in which case direct compensation may be constitutionally required.