Article by James Gordley
There is one problem that everyone who has studied law has faced with humility: When must the government pay when it takes a person's property or restricts his right to use it? There are three difficult questions: (1) for what purposes may the government take the property or restrict the right to use it, (2) what counts as “property,” and (3) when must the government pay. This Article deals with the third question, known in the United States as the problem of distinguishing “takings” from “regulations,” although it goes by other names elsewhere. No solution seems to work, whether we are considering American law, foreign law, international law, or the European Convention on Human Rights.
A volume could catalogue the failures. Here, I will discuss only three wrong turns that courts have taken, which, I believe, mischaracterize the problem. Then I will defend an older approach, which, I believe, works well if well understood. I will argue, in effect, that we were on the path to a right answer but lost our way.
About the Author
James Gordley. W.R. Irby Professor of Law, Tulane University School of Law. B.A. 1967, M.B.A. 1968, The University of Chicago; J.D. 1970, Harvard Law School.
Citation
82 Tul. L. Rev. 1505 (2008)