18 Pages Posted: 4 Jun 2007
Date Written: May 23, 2007
Takings law, composed of the law of eminent domain and the regulatory takings doctrine, is correctly understood as one of property's most defining features. As such, it attracts the attention not only of lawyers and judges but also of property theorists and political philosophers. This thick literature tends to fall into rather predictable and, I argue, quite disappointing camps. Libertarian authors maintain that compensation should be required each time the taking's impact on the owner is disproportionate to the burden, if any, carried by other beneficiaries of the intended public use of the public action at hand. Their liberal opponents, who hold that property should serve not only liberty but also such values as social responsibility and distributive justice, seek to restrict the range of takings law as much as possible. They imply that the connection between takings and these competing values is simple: social responsibility and distributive justice are better served when the doctrines of eminent domain and regulatory takings become increasingly limited. This debate is now deadlocked.
This essay seeks to re-imagine a truly liberal takings doctrine, which deviates dramatically from the positions of both camps. Unlike the former, it disputes the desirability and even the intelligibility of both the notion that ownership should only promote individual liberty and the strict takings doctrine said to follow this libertarian utopia. Unlike the latter, it insists that takings law should not fall back to a doctrine of no, or almost no, compensation that, I will argue, is counter-productive to the very commitment to social responsibility and distributive justice. Rather, in order to successfully integrate social responsibility and distributive justice into takings doctrine, and also other important property values such as autonomy, personhood and utility, we need to opt for a regime of partial and differential compensation, drawing careful (and rule-based) distinctions between types of injured properties and types of benefited groups.
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