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Takings, Substantive Due Process, and the Regulatory Roles of Government

162 Pages Posted: 1 Feb 2007  

Howard C. Klemme

University of Colorado Law School

Date Written: January 31, 2007


As described in the Author's Note, this recently completed book is an in-depth analysis of the law of what constitutes a compensable taking and how that law relates (along with its history and rhetoric) to the law of substantive due process. While that analysis focuses primarily on so-called "regulatory takings," it also considers other forms of takings, for example, those that may occur when governmental employees cause injury to private property while engaging in tortious conduct.

The book is intended to serve as a comprehensive research tool for students, lawyers, judges, land use planners, and others who may be interested in the law of compensable takings, including those who may have a special interest in its history or rhetoric, such as political scientists, economists, historians and rhetoricians. Most takings and related substantive due process decisions of the United States Supreme Court are analyzed, as are many state court decisions, many of which prove to be of far more significance than most of the Supreme Court's decisions. Indeed, except for the law of takings as it relates to utility rate regulation and rent control, nearly all the present-day law of takings, including its confused and confusing substantive due process rhetoric, have been created (or invented) by state courts. Surprisingly little is the original work of the United States Supreme Court.

Of the book's ten chapters, only the book's foundation chapters, Chapters I, II, and V, accompany this abstract. Following the broad overview presented in Chapter I of the book's research, analyses, and principal conclusions, Chapter II describes in greater detail the three regulatory roles of government - prevention, redistribution, and that of encouraging the exchange or sharing of privately owned resources - that are most likely to be relevant when trying to decide whether a particular governmental regulation or its application, or any other form of governmental action or inaction constitutes a compensable taking.

In terms of legal analysis, the book's two most important chapters are Chapters IV and V. Though it does not accompany this abstract, Chapter IV expands the analysis presented in Chapters I and II and demonstrates from several different perspectives how, on a principled basis, it is possible to distinguish between governmental actions or inactions that constitute compensable takings and those that do not. In most instances, that process involves using the involuntary Good Samaritan test of takings (as I have denoted it) to identify which regulatory role (or roles) the government was exercising when it adopted or applied a particular regulation or undertook other regulatory action. The resulting conclusion answers the question of whether a compensable taking has occurred. The purpose of Chapter V, the book's single most important chapter, is to demonstrate and explain how, and why, that process and test reflect so well the underlying policies of the takings clause, its language and its history of nearly eight hundred years.

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

JEL Classification: K10, K11, K19, K30, K32

Suggested Citation

Klemme, Howard C., Takings, Substantive Due Process, and the Regulatory Roles of Government (January 31, 2007). University of Colorado Law Legal Studies Research Paper No. 07-02. 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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