Eminent Domain and Regulatory Takings: Towards a Unified Theory

Abstract

The powers of eminent domain and of regulation are essential to the functioning of a modern state, properly encumbered by duties of promoting its citizens’ welfare and their common projects. But they are also a serious concern given the potentially detrimental and at times even devastating consequences of their application in terms of efficiency and, even more significantly, fairness. These powers or, more precisely, the distributive underpinnings of their application, explicitly or implicitly shape an underlying scheme of social responsibility that, in turn, affects our understanding of the civic pact underlying our citizenship and community membership. The compensation requirement of both eminent domain law and the doctrine of regulatory takings significantly affects these dramatic issues. Therefore, notwithstanding the differences between these two doctrines, considering them in tandem may generate important lessons and potential cross-fertilization. This Essay is an attempt to take the first steps in this promising direction. It is divided into two parts, each one seeking to distill from each of these two doctrines lessons potentially helpful to the other. In regard to each one, I consider three propositions that, although foundational and, in most cases, relatively uncontroversial within its “natural habitat,” are still largely absent from many if not most discussions of the parallel doctrine. My ambition with regard to all six propositions is to demonstrate the plausibility of the proposed transplantation as well as its eventual significance.