The Dog that Didn't Bark: Assessing Damages for Valid Regulatory Takings

Abstract

If land use regulations that go “too far” are really takings under the Fifth Amendment, one would expect there to be a large number of cases discussing the appropriate way to calculate the “just compensation” for those regulations that are otherwise valid. Oddly there are none. This article explores the reasons for that lack. The lack of any such cases and the problems with any such compensation remedy stem from the confusion in contemporary “takings” jurisprudence. In analyzing the hundreds of cases that discuss “regulatory takings,” it becomes clear that the courts recognize that any remedy granting compensation for such “takings” would present more problems than it might solve. Most of this confusion would be resolved by treating “regulatory takings” as violations of the Due Process Clause rather than the Takings Clause.

Keywords: Due process, takings clause, fifth amendment, regulatory takings, takings, damages, just compensation

JEL Classification: K00, K42