Regulatory Takings: Law, Economics, and Politics Hardcover - 1998

Regulatory Takings argues that the issue is not so much about the details of property law as it is about the fairness of politics and the capacity of the courts to protect property interests. William Fischel demonstrates that property is often protected by nonjudicial means. Local governments are deterred from unfairly regulating portable assets by their owners' threat of "exit" from the jurisdiction. State and federal government regulations are disciplined by property-owner coalitions whose "voice" is clearly audible in the statehouses and in Congress. Constitutional courts need to preserve their resources for use in areas in which politics is loaded against the property owner. Zoning and rent controls, which often promote the interests of a majority of local residents at the expense of unrepresented outsiders, require closer judicial scrutiny than national laws such as the Endangered Species Act. Regulatory Takings advances an economic standard to decide when a local regulation crosses the line from legitimate police power to a taking that requires just compensation for owners who are adversely affected. Regulatory Takings goes beyond case law and jurisprudential theories to buttress its arguments. It employs economic and political analysis, historical investigations, and statistical studies to make a case for judicial federalism.