Novel Takings Theories: Testing the Boundaries of Property Rights Claims
4 Brigham-Kanner Property Rights Conference Journal 39 (2015)
34 Pages Posted: 23 Sep 2015
Date Written: September 18, 2015
A lot of what passes for standard takings theory today would have been summarily rejected a generation or two ago. Who could have complained when the government showed up with trucks to haul off half of a farmer's raisins? Who could dispute the government's right to demand tribute in exchange for a permit? Or, who could not argue that there's been a taking when the government sends a satellite over one's home? The point is, today we're pretty sure the first two examples are takings, but the last one is not. But how do we distinguish the novel yet viable theories from the frivolous?
This paper argues that novelty in takings claim can be good and transformative -- but only when 1) there are good and sympathetic facts to lay bare the realities of the burdens imposed by government regulation on ordinary citizens, 2) there are some well-honed theories in support of government liability and 3) there is some intellectual respectability for those theories.
Keywords: regulatory takings, property rights
Suggested Citation: Suggested Citation