Saturday, December 10, 2005
Joseph Singer (Harvard Law School) has posted The Ownership Society & Regulatory Takings: Castles, Investments, & Just Obligations on SSRN. Here's the abstract:
Regulatory takings law has hit a crossroads with new decisions in Palazzolo, Tahoe-Sierra, Lingle and Kelo. This article approaches the topic by identifying three different images or models of property that may lie behind analysis of the rights of property owners in the face of the takings clause. Each of the models suggests a central question. The first two models are castles and investments. The castle model focuses on the question of what it means for an owner to act within the borders of her property (or within the scope of her property rights) while the investment model focuses instead on protecting the justified expectations of investors. The third model of ownership developed briefly in this article starts from the assumption that owners have obligations as well as rights and asks whether the obligation imposed by a new regulatory law is just. The image behind this model is that of a citizen in a free and democratic society. Although the Supreme Court has adopted this model as the ultimate test for takings, we have not sufficiently appreciated how it modifies the other models, coexists with them, and provides normative weight in applying the takings clause. This article uses the fact situations in Lucas and Kelo to illustrate and play out the implications of the three models.
Singer presented this very interesting paper at the GELPI Takings Conference, and I've been meaning to post on it for a while. Now that it is on SSRN, you can check it out directly.
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