Document Type
Article
Publication Title
Columbia Law Review
Publication Date
2007
ISSN
0010-1958
Page Number
883
Keywords
property law, Fifth Amendment, land use, local government
Disciplines
Law | Property Law and Real Estate
Abstract
This Article proposes that local governments should be able to decide for themselves how to protect private property, and then be held to that choice as if it were a local constitutional pre-commitment. Specifically, the Article proposes state enabling legislation to create a mechanism for local pre-commitments around the most contested takings and land use issues, like the meaning of public use, the extent of just compensation, the diminution of value that triggers compensation, and others. The resulting local variation in property regimes would allow consumers - homeowners, developers, and any other property owners - to select the property protection they want by choosing where to live and invest. It would also allow local governments to use variation in property protection as a basis for inter-local competition. Implicit in this proposal is a view of property protection as a tool for attracting investment. Given the opportunity, local governments should offer property protection when the costs of that protection - in the form of increased compensation and decreased flexibility - are less than the benefits from increased investment. This cost-benefit calculus will apply differently depending on the characteristics and priorities of particular local governments.
Recommended Citation
Christopher Serkin,
Local Property Law: Adjusting the Scale of Property Protection, 107 Columbia Law Review. 883
(2007)
Available at: https://scholarship.law.vanderbilt.edu/faculty-publications/418