Property and Expropriation: Themes and Variations in American Law

Abstract

In recent years, property owners have increasingly clashed with regulators over what seem to be ever-expanding environmental laws. The ensuing conflicts have raised the stakes for understanding the ways in which American constitutional law protects owners from uncompensated "takings" of their property.

This article argues that although the United States is certainly a very property-conscious nation, our property law has also co-existed with several quite different forms of uncompensated expropriations that have gone almost unnoticed in our property law. These contrasting types of expropriations can put in perspective the environmental regulations currently contested in "takings" cases.

On the one extreme are a set of generally unnoticed expropriations that arise from claims-clearing doctrines and rules such as adverse possession, liability rules, and losses from the operation of the recording system. Despite the expropriative effects of these rules, a property regime could not exist without such housekeeping devices to clear title for continuing normal transactions; such rules suggest that certain forms of expropriation are actually a part of any functioning property regime.

At the other extreme are the very dramatic expropriations that accompanied such major social upheavals as the American Revolution, the emancipation of slaves, and the settlement of the West at the expense of indigenous peoples. The article argues that these expropriations did not unsettle the bulk of property relations precisely because of their extraordinary character, particularly because they were perceived at most as losses suffered by "outsiders" to the ordinary community of property holders.

The article argues that "takings" claims arise in an intermediate area between the housekeeping rules and the extraordinary measures. Changes in environmental laws, like the operation of housekeeping rules, are a part of any functioning property regime, in that they necessarily readjust the content of entitlements in face of increasing congestion and competition for environmental resources. But because of the uneven distribution of environmental regulatory change, these regulations also raise the prospect that some owners may be treated as "outsiders." The article argues that takings doctrine is, thus, best understood not as an automatic defense of property rights, but rather as a legal compromise tactic to allow needed environmental transitions to occur, while reassuring owners that they are not being treated as "outsiders" to the community.

JEL Classification: K11, K32