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Takings and the Regulatory Roles of Government (Introduction and Overview)

73 Pages Posted: 5 Feb 2003  

Howard C. Klemme

University of Colorado Law School

Date Written: November 5, 2002


For over a century, the regulatory takings opinions of both state and federal courts have raised two puzzling questions. First, when explaining whether a government regulation, or its application, constituted a "tak[ing] for...use" under the Fifth Amendment (or a counterpart state provision), why has the courts' rhetoric in so many opinions failed to provide a clear, principled explanation of the results actually reached? In contrast, the results in those cases have invariably suggested to most persons working closely with them that there must be a set of rational principles underlying them, which, if those principles could be discovered and adequately described, a surprisingly cohesive body of law might emerge. Thus, the second puzzling question is: are there any such cognizable principles?

Considering nearly all the regulatory takings opinions of the United States Supreme Court, as well as numerous state court opinions, this working paper demonstrates that the courts' rhetoric has proved so unsatisfactory because most of it has been predicated on the principles of substantive due process, rather than on the distinctly different principles the courts have been using throughout most of our constitutional history to decide regulatory takings claims. To understand those distinctly different principles, however, requires a recognition that, when government engages in any action designed to allow people to satisfy more of their personal values from their use and enjoyment of the resources available to them, the government may employ one or more of its governmental powers (such as its powers to impose punitive sanctions, impose financial obligations, condemn property, incur debt, spend money, etc.) to perform one or more of its regulatory roles. Of those roles, the three most relevant in the law of takings are prevention, redistribution, and encouraging the voluntary exchange or sharing of private resources.

Using these three regulatory roles as a frame of reference, an analysis of the results the courts have reached in their takings decisions since the early 1800s reveals that a taking occurs when the evident purpose of any government action is redistributive, rather than preventive or that of encouraging the exchange and sharing of private resources. And the principles the courts have been using (although probably most often only intuitively) to determine which regulatory role or roles the government was performing when that action occurred can most appropriately be denoted the involuntary Good Samaritan test of takings. Under that test, a taking occurs whenever the evident purpose of those acting for the government is to require an owner to make private property available to others for their use and enjoyment - that is, to satisfy their values of safety, health or economic gain - and the owner has neither consented to such use, nor has the owner been (nor will the owner be) causally responsible for having created the perceived need for others to make that use of the property.

Keywords: takings, regulatory takings, confiscatory takings, government regulation, regulation of property, powers of government, land use regulation, land use planning, substantive due process, judicial rhetoric, constitutional history, legal history, involuntary Good Samaritans

JEL Classification: K02, K03, K04

Suggested Citation

Klemme, Howard C., Takings and the Regulatory Roles of Government (Introduction and Overview) (November 5, 2002). Available at SSRN: or

Howard C. Klemme (Contact Author)

University of Colorado Law School ( email )

401 UCB
Boulder, CO 80309
United States
303-492-7171 (Phone)
303-492-1200 (Fax)

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