The Ownership Society and Takings of Property: Castles, Investments, and Just Obligations

Abstract

This Article examines three models of property that can help us make sense of otherwise intractable takings doctrine. The two best understood models are the "castle" model, which conceptualizes owners as having absolute domain over their property as long as they do not use it to harm others, and the "investment" model, which conceptualizes property as a form of investment in a market economy that creates reasonable expectations likely to yield economic rewards. Ultimately rejecting both of these models as incomplete, the author praises the Supreme Court's return in Lingle v. Chevron USA, Inc. to the Penn Central idea that the Takings Clause protects property owners from unjust obligations while rendering them subject to just obligations. The Article argues that the castle and investment models overemphasize individual rights, while the Penn Central test's notion that owners have obligations as well as rights rests on a conception of "citizenship." This citizenship model provides a useful framework for analyzing when property rights are subject to regulation to prevent harm and when investment-backed expectations are justified; it can thus help direct our attention to the core question of "justice and fairness" that is at the heart of the Takings Clause as it has been interpreted by the Supreme Court.

Keywords: property, takings, public use