Insuring Takings Claims

64 Pages Posted: 29 Dec 2016 Last revised: 27 Jan 2017

Date Written: December 28, 2016

Abstract

Local governments typically insure themselves against all kinds of losses, from property damage to legal liability. For small- and medium-sized governments, this usually means purchasing insurance from private insurers or participating in municipal risk pools. Insurance for regulatory takings claims, however, is generally unavailable. This previously unnoticed gap in municipal insurance coverage could lead risk averse local governments to underregulate and underenforce existing regulations where property owners threaten to bring takings claims. This seemingly technical observation turns out to have profound implications for theoretical accounts of the Takings Clause that focus on government regulatory incentives. This Article explores the impact of insurance on land use regulations. In the process, it reveals important insights about public insurance more generally and offers a novel explanation for the burgeoning land use innovation in cities compared to the relative stagnation of land use in the suburbs. It concludes by suggesting new ways for promoting local land use regulations that risk generating takings claims.

Keywords: Property, Takings Clause, Insurance, Local Government, Land Use

Suggested Citation

Serkin, Christopher, Insuring Takings Claims (December 28, 2016). Northwestern University Law Review, Vol. 111, No. 1, 2016; Vanderbilt Law Research Paper No. 17-10. Available at SSRN: https://ssrn.com/abstract=2891041

Christopher Serkin (Contact Author)

Vanderbilt Law School ( email )

131 21st Avenue South
Nashville, TN 37203
United States
615-343-6131 (Phone)

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