Reconstructing the Takings Doctrine by Redefining Property and Sovereignty

Abstract:     
Much of the confusion in takings jurisprudence arises from the failure of the courts to develop a coherent federal constitutional property theory that adequately addresses the expectations of the private property owner. This article proposes replacing the traditional two-step takings analysis of first determining what constitutes a protectable property interest and then determining when governmental regulation affects that interest to an extent requiring compensation, with a one-step analysis that focuses on the regulatory impact on the functions that property serves.

Number of Pages in PDF File: 38

Keywords: Just Compensation, takings, property, eminent domain, private expectations

JEL Classification: K42, K19, K14, K11, J79, J49, J41, J38, J22, J17, I32, I31

Accepted Paper Series