A Right to Be Regulated?
49 Pages Posted: 25 May 2016 Last revised: 7 Mar 2018
Date Written: May 24, 2016
Can property include a right to government regulation? An enormous amount rides on this question. Billions of dollars in transferable development rights, flood and landslide protections, patents, pollution credits, utility service areas, access roads, taxi medallions, and grazing permits: these are some of the valuable interests claimed as rights in regulation. Are they protected property?
This Article answers the question and constructs an overarching framework for evaluating asserted rights in regulation. It determines that courts and legislatures actually recognize some property rights in government regulatory actions. It then synthesizes these authorities to create administrable rules for assessing such claims. In doing so, it integrates and advances disparate strands of property scholarship and provides courts with meaningful guidance for addressing these important issues.
Keywords: property rights, procedural due process, fifth amendment takings, patents, copyrights, taxi medallions, rent dissipation, regulated utilities
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