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Hanoch Dagan

Print publication date: 2011

Print ISBN-13: 9780199737864

Published to Oxford Scholarship Online: May 2011

DOI: 10.1093/acprof:oso/9780199737864.001.0001

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Takings and Distributive Justice

Takings and Distributive Justice

(p.87) 5 Takings and Distributive Justice

Hanoch Dagan (Contributor Webpage)

Oxford University Press

This chapter contributes to the ongoing debate over the scope of the regulatory takings doctrine by developing a credible doctrine that distinguishes a regulation from a taking with a view to both civic virtues and egalitarian concerns. Section I revisits three established theories of takings: the economic analysis that investigates the incentive effects of takings law, Richard Epstein's libertarian theory, and Frank Michelman's utilitarian (and Rawlsian) analysis. Section II, which is the core of this chapter, presents the proposed doctrine in some detail, and explains the way this doctrine vindicates the concerns of social responsibility and of equality while supplying some normative justifications. The chapter then advances two main claims. The first claim is that a takings doctrine that compensates each disproportionate burden not offset by an immediate countervailing benefit is destructive to the virtue of social responsibility. The second is that the proposed interpretation of the diminution of value test provides a practical proxy for egalitarian concerns, and that there are good reasons to accommodate these concerns within takings law. Section III demonstrates the possible implementation of the proposed doctrine.

Keywords:   regulatory takings doctrine, jurisprudence, regulation, social responsibility, equality

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