Takings Constraints: Mechanisms to Minimize the Uncompensated Increment and Limit the Government's Power to Take Property

57 Pages Posted: 24 May 2008  

Colin P. Parent

DLA Piper US LLP

Date Written: May 10, 2008

Abstract

The breadth of takings scholarship has left useful ideas diluted amongst an ocean of theories. This article addresses that problem by creating a clear and useful taxonomy for takings constraints by which takings theories can be categorized and analyzed. These new categories are (1) compensatory restraints on how much government must compensate property owners, (2) categorical constraints which absolutely limit which property can be taken and for what purposes, and (3) processes constraints which limit how property is condemned.

Furthermore, this article suggests that compensatory restraints are appropriate to minimize economic harms, and categorical constraints are only appropriate to minimize the destruction of property owners' autonomy. This new theory is only possible with the use of the new taxonomy to describe takings constraints.

This paper does not attempt to argue which interests of property should be protected - a topic already developed in the scholarship. However, its new theory provides a framework for policymakers to apply when deciding what takings constraints to use when seeking to advance their substantive values in property, whatever those values may be.

Keywords: takings, kelo, fifth amendment, takings clause, property, property rights, just compensation, public use, public

Suggested Citation

Parent, Colin P., Takings Constraints: Mechanisms to Minimize the Uncompensated Increment and Limit the Government's Power to Take Property (May 10, 2008). Available at SSRN: https://ssrn.com/abstract=1131795 or http://dx.doi.org/10.2139/ssrn.1131795

Colin P. Parent (Contact Author)

DLA Piper US LLP ( email )

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