The U.S. Regulatory Takings Debate through an International Lens

Abstract

The United States leads the world in the complexity of its regulatory takings law, the amount of academic writing devoted to the topic, and the intensity of the surrounding public debate. This is one of the (ancillary) findings of a large-scale comparative study of regulatory takings law. A look from the “outside” may shed light on American takings law and the “property rights” debate. An international looking glass can allow both sides in this debate either to fi nd alternative models to support their own position (with appropriate adjustments) or to develop middle-of-the road approaches towards a rapprochement in this longraging contest.

In every country where land use regulations and development controls operate (the vast majority of countries today), they change the economic value of real property. The question addressed here focuses on the downwards effect — what Americans call “regulatory takings.” Do landowners have a right to claim compensation or some other remedies from the planning authorities? This topic addresses an inherent raw nerve of planning law and practice, bearing deep economic, social and ethical implications. However, not in every country does the issue generate the same intensity of legal and public debate as it does in the United States.

This article draws on the findings of comparative research encompassing thirteen countries around the world. Readers of this Festschrift, who are acquainted with American takings law, will be able to view it from this new perspective. A comparative perspective can help to create a sense of scale and proportionality that conventional domestic legal analysis cannot offer.

Keywords: takings, regulatory takings, law, property, expropriation, regulatory expropriation, regulatory takings

JEL Classification: K11, H82