The 'Anti-Boomer Effect:' Property Rights, Regulatory Takings, and a Welfare Model of Land Ownership
6 Australia Journal of Legal History 1-28 (Summer, 2000)
29 Pages Posted: 13 Oct 2015 Last revised: 30 Oct 2015
Date Written: 2000
In this article I briefly examine the history of regulatory takings jurisprudence and fit it within both an originalist interpretation and the historical tradition of economic substantive due process doctrines. I then examine the property rights movement more specifically and suggest that the source of the problem is two-fold: the happenstance of the repudiation of Lochner era economic due process has forced advocates to stretch the takings clause to cover cases that might more appropriately be handled under due process analyses, and the critical situation in the environmental and growth management areas, caused by our unprecedented population growth and the resulting strain on our natural environment, has led to more stringent land use controls that conflict with a long-standing mythology of absolute property rights. Objections to land control have spilled over into a wide variety of land-use regulations including historic preservation, national rivers and streams clean-up initiatives, rails-to-trails conversions, billboard removal in highways, endangered species protections, limits on grazing permits on federal lands, coastal zone protections, and a wide variety of environmental, zoning, and growth management laws. 15 In conclusion, I suggest a two-fold solution to dealing with the claims of the property rights movement: a return to due process as the proper analytic tool for viewing deprivation of property rights, and a shift away from a rights-based model of property law to a stewardship or welfare model, which recognizes and more fully protects important claims of the public to restrict detrimental uses of land.
Keywords: takings clause, property law, regulatory taking
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