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Property and Community$
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Gregory S. Alexander and Eduardo M. Peñalver

Print publication date: 2009

Print ISBN-13: 9780195391572

Published to Oxford Scholarship Online: May 2010

DOI: 10.1093/acprof:oso/9780195391572.001.0001

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Reimagining takings law

Reimagining takings law

Property and Community


Oxford University Press

Takings law attracts the attention of lawyers, judges, property theorists, and political philosophers. This literature tends to fall into two camps. Libertarian authors maintain that compensation is required each time the taking's impact on the owner is disproportionate. Their liberal opponents seek to restrict the range of takings law as much as possible. This chapter re-imagines a truly liberal takings doctrine, which deviates from the positions of both camps. Unlike the former, it disputes 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 become a doctrine of virtually no compensation. To successfully integrate social responsibility and distributive justice into takings doctrine, along with autonomy, personhood and utility, we need a regime of partial and differential compensation, distinguishing between types of properties and types of benefited groups.

Keywords:   property, regulatory takings, liberalism, communitarianism, reciprocity, just compensation

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