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The New Politics of New Property and the Regulatory Takings Clause

The New Politics of New Property and the Regulatory Takings Clause

Christopher Serkin

The politics of property is being turned on its head. Nowhere is that more evident than at the intersection of public power and private rights. That intersection—defined in part by the Takings Clause[1]—has a conventional political valence. Liberals and progressives favor broad regulatory power.[2] Conservatives and libertarians favor strong protection for private property.[3] Those predictable positions have become increasingly unstable, however. In many different regulatory contexts—from zoning, to eminent domain, to regulatory property—instinctive political reactions no longer track the underlying substantive stakes of various property conflicts.[4]

It is especially important to recognize these new trends and pressures given the contemporary state of politics. With extreme polarization, people increasingly adopt positions reflexively, responding more to the political battle lines than to the substance of the issues.[5] The result is liberals sometimes fighting against what should be their underlying normative commitments towards progressive redistribution and conservatives the opposite.[6] At the very least, failing to recognize the evolving stakes of property disputes means that unnoticed schisms have developed on the left, in particular.[7] Identifying those fault lines is the first step to reconciling them.

This Essay offers a broad gloss on the traditional politics of property protection and then catalogues a number of ways in which those politics have been changing. In many cases, the account is of fragmentation and fracture as once stable commitments have become much more contingent and fact dependent.[8] Admittedly, this characterization paints with an extremely broad brush. That is both its contribution and its weakness. This short Essay deliberately simplifies the characterization of preferences across the political spectrum. Much more nuanced definitions would better track the complexity of the underlying issues. Judges and scholars discussed below might also object to being lumped together in one group or another. Furthermore, given these broad definitions, it is always possible to find counter-examples where the politics lined up differently in the past or line up differently today. There is nevertheless value in this Essay’s rough-cut approach. It reveals trends that one might miss when looking with a narrower gaze. The analysis that follows deliberately sacrifices some specificity in order to capture higher-level themes and observations.

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[1] U.S. Const. amend. V (“[N]or shall private property be taken for public use, without just compensation.”).

[2] See, e.g., Nestor M. Davidson, Property’s Morale, 110 Mich. L. Rev. 437, 443 (2011) (arguing for expansive view of regulatory power).

[3] See, e.g., Joseph Singer, The Ownership Society and Takings of Property: Castles, Investments, and Just Obligations, 30 Harv. Envtl. L. Rev. 309, 312 (2006) [hereinafter Singer, Just Obligations] (“Conservatives tend to view ownership as embodying both expansive rights and strong protections from government interference. The conservative framework sees property and regulation as opposites: broad property rights mean less regulation and more regulation means less protection for property rights.”).

[4] See discussion infra Part II (describing the “shifting political valence of property and property protection,” which conventional politics does not capture).

[5] See, e.g., Libby Jenke & Scott A. Huettel, Issues or Identity? Cognitive Foundations of Voter Choice, 20 Trends Cognitive Sci. 794, 800–01 (2016) (finding that people voting consistently with identity politics sometimes vote against their own interests).

[6] See infra notes 100–14 and accompanying text (describing liberal support for NIMBY zoning).

[7] Joseph William Singer, Kormendy Lecture, Justifying Regulatory Takings, 41 Ohio N.U. L. Rev. 601, 626–27 (2015) [hereinafter Singer, Kormendy Lecture].

[8] See id. (discussing contradictions within conservative and liberal approaches to property protection).

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