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Justifying Regulatory Takings

Lecture Title: 
Justifying Regulatory Takings

Joseph Singer’s presentation addressed regulatory law. Since 1922, the Supreme Court has interpreted the U.S. Constitution to require just compensation to be paid when a regulation affects the practical equivalent of a taking of property. And since 1978, it has applied a multi-factor test to determine when a law “forc[es] some people alone to bear public burdens, which, in all fairness and justice, should be borne by the public as a whole.” Many scholars have criticized the resulting law of regulatory takings as incoherent, unpredictable and insufficiently protective of property rights.

Singer said, “While there is much to criticize in the reasoning in some of the cases, regulatory takings law is more defensible and predictable than its critics believe. Because we live in a free and democratic society, owners are legitimately subject to regulatory laws and cannot, in general, claim a right to be paid just to comply with applicable law. Compensation is due only when the burden on an owner is rightly understood as a ‘public’ one, and that happens when we cannot provide an adequate justification why the owner should bear the burden of the law without compensation. That is most likely to be the case when a law effects the destruction of property, the ouster of the owner or invasion by strangers, or when a law imposes unfair surprise by interfering with what are justly viewed as vested rights. Even in these cases, compensation is not due if there is an adequate public justification for imposing the uncompensated burden on the owner.”

Regulatory takings law allows legislatures to prevent owners from harming others, to resolve conflicts among property rights, to define the environment within which property rights can be enjoyed and to define inherent limits on property rights. Constitutional limits on regulation are reached only when a law imposes a “public burden” that an individual should not have to bear alone in a free and democratic society that treats each person with equal concern and respect.

Singer has taught at Harvard Law School since 1992. He was appointed Bussey professor of law in 2006. He began his academic career at Boston University School of Law in 1984. Singer received a Bachelor of Arts from Williams College in 1976, an A.M. in political science from Harvard in 1978, and a J.D. from Harvard Law School in 1981. He clerked for Justice Morris Pashman on the Supreme Court of New Jersey from 1981 to 1982 and was an associate at the law firm of Palmer & Dodge in Boston, focusing on municipal law, from 1982 to 1984. He teaches and writes about property law, conflict of laws and federal Indian law. He also writes about legal theory with an emphasis on moral and political philosophy. He has published more than 70 law review articles. He is one of the executive editors of the 2012 edition of Cohen’s Handbook of Federal Indian Law.

Joseph Singer