Not Just Compensation

45 Pages Posted: 16 Nov 2004 Last revised: 21 Sep 2008

See all articles by Abraham Bell

Abraham Bell

Bar Ilan University - Faculty of Law; University of San Diego School of Law

Date Written: November 1, 2004


This Article develops a "contributory negligence" rule for takings compensation under which property owners will not be awarded compensation where they overdevelop their property. I propose that a contributory negligence standard be implemented by soliciting homeowner self-assessments that would serve as the basis of both the magnitude of the award of takings compensation and of the decision as to whether property development has been contributorily negligent.

By analogy with economic models of tort law, I show that compensation policy must create bilateral incentives that, on the one hand, deter government decisionmaking on the basis of fiscal illusion, and, on the other hand, discourage property owner behavior on the basis of moral hazard. To be coherent, this compensation policy must have a clear manner of determining the baseline value of property, and it must avoid strategic timing that creates "condemnation blight."

JEL Classification: K10, K11

Suggested Citation

Bell, Abraham, Not Just Compensation (November 1, 2004). Bar Ilan Univ. Pub Law Working Paper No. 6-04; Journal of Contemporary Legal issues, Vol. 13, No. 1, 2003. Available at SSRN: or

Abraham Bell (Contact Author)

Bar Ilan University - Faculty of Law ( email )

Faculty of Law
Ramat Gan, 52900


University of San Diego School of Law ( email )

5998 Alcala Park
San Diego, CA 92110-2492
United States

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