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{\field{\*\fldinst {\lang4105  SEQ CHAPTER \\h \\r 1}}{\fldrslt }}\pard \fs28\qc 
{\plain \fs28 \fs28 }{\plain \fs28 \b\fs28 Democratic Regulation and Judicial Distrust: \par
}\pard \fs32\qc 
{\plain \fs28 \b\fs28 Comparing Property Rights Institutions in the US and the UK}{\plain \fs32 \fs32 \par
}\pard \fs24
{\plain \fs24 \par
}\pard \fs24\qc 
{\plain \fs24 Daniel H. Cole{}{\plain \fs24 \super 1{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 1}{}{\plain \fs24   I am indebted to my colleagues Robin Craig, Gerard Magliocca, and George Wright for \softline
their helpful comments on a draft of this paper.  I am also grateful for the research assistance of  \softline
Margaret Esler (J.D. {\u8216\'91}06) and the administrative assistance of Faith Long Knotts.  }}}
}{\plain \fs24 \pard \fs24\qc 
\ul0 \tab \ul0 \tab \ul0 \tab \par
}\pard \fs24\qc 
{\plain \fs24 R. Bruce Townsend Professor of Law \par
}\pard \fs24\qc 
{\plain \fs24 Indiana University School of Law at Indianapolis\par
}\pard \fs24
{\plain \fs24 \par
}\pard \fs24\qc 
{\plain \fs24 }{\plain \fs24 \i Prepared for Conference on Comparative Institutional Analysis\par
}\pard \fs24\qc 
{\plain \fs24 \i September 10-11, 2004 {\u8211\'96} University of Wisconsin Law School}{\plain \fs24 \par
}\pard \fs24
{\plain \fs24 \par
}{\plain \fs24 \par
}\pard \fs24\qc 
{\plain \fs24 }{\plain \fs24 \b INTRODUCTION}{\plain \fs24 \par
}\pard \fs24
{\plain \fs24 \par
}{\plain \fs24 \tab \tab \tab \tab \par
}\pard \fs24\sl480\slmult1 
{\plain \fs24 \tab To what extent is judicial review a necessary institution for protecting property rights?  \softline
Nearly all American jurists, since Madison, have thought the answer to this question both \softline
obvious and incontestible: in the absence of judicial review, state and federal governments might \softline
trample private property rights into dust.  Recently, however, two scholars {\u8211\'96} one an economist \softline
and the other a legal scholar {\u8211\'96} have raised important (and importantly different) challenges to the \softline
received wisdom about property rights in the absence of judicial review.\par
}{\plain \fs24 \tab In his 1995 book }{\plain \fs24 \i Regulatory Takings}{\plain \fs24 ,{}{\plain \fs24 \super 2{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 2}{}{\plain \fs24   }{\plain \fs24 \scaps William A. Fischel, Regulatory Takings: Law, Economics, and Politics}{\plain \fs24  (1995).}}}
}{\plain \fs24  the economist William Fischel argues that judicial \softline
review is not always necessary or desirable for protecting private property rights because private \softline
property owners are generally capable of protecting their interests in the political process, \softline
particularly at higher (}{\plain \fs24 \i i.e.}{\plain \fs24 , state and federal) levels of government.{}{\plain \fs24 \super 3{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 3}{}{\plain \fs24   Fischel believes that judicial review is more important for protecting property rights \softline
against the regulatory activities of lower (}{\plain \fs24 \i e.g}{\plain \fs24 ., municipal) levels of government, where political \softline
processes are more subject to majoritarian pressures.  }{\plain \fs24 \i Id.}{\plain \fs24  at 180.}}}
}{\plain \fs24 \sect \sectd \sbknone\pgndec\headery1440\footery1440 
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\pard \fs24\sl480\slmult1 
  The legal scholar Neil 
Komesar does }{\plain \fs24 not share Fischel{\u8217\'92}s belief in the ability of private property owners to protect their \softline
interests in political processes; like most other legal scholars, he views judicial review as a highly \softline
desirable institution for protecting property rights against government depredation.  In stark \softline
contrast to other legal scholars, however, Komesar does not believe that the courts are up to the \softline
task.  In his 2001 book }{\plain \fs24 \i Law{\u8217\'92}s Limits,{}{\plain \fs24 \super 4{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 4}{}{\plain \fs24   }{\plain \fs24 \scaps Neil K. Komesar, Law{\u8217\'92}s Limits: The Rule of Law and the Supply and Demand \softline
of Rights}{\plain \fs24  (2001).}}}
}{\plain \fs24 }{\plain \fs24  Komesar observes that }{\plain \fs24 the courts simply do not possess \softline
the resources necessary to protect property rights from unwarranted and uncompensated takings.  \softline
}{\plain \fs24 Institutional design features and supply-side constraints significantly limit the judiciary{\u8217\'92}s ability \softline
to deal with government interference with private property rights.  }{\plain \fs24 Consequently, Komesar is \softline
forced to conclude, }{\plain \fs24 {\u8220\'93}[e]ven if the regulatory process is highly flawed (and it is), the severe \softline
problems in . . . the adjudicative process may mean that the corrupt, excessive, and repressive \softline
regulatory process is the best of bad alternatives.{\u8221\'94}{}{\plain \fs24 \super 5{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 5}{}{\plain \fs24   }{\plain \fs24 \i Id.}{\plain \fs24  at 106.}}}
}{\plain \fs24 \par
}{\plain \fs24 \tab This paper adduces empirical evidence from the United Kingdom and several American \softline
states that (1) supports Fischel{\u8217\'92}s claim that judicial review may not be a necessary institution for \softline
protecting property rights and (2) provides reason to believe that even if courts are institutionally \softline
incapable of fulfilling their constitutionally assigned role of protecting property rights, as \softline
Komesar fears, }{\plain \fs24 democratic governments will substantially protect private property rights, even as \softline
it regulates them.  The evidence does not, in my view, provide a basis for drawing hard and fast \softline
conclusions about the {\u8220\'93}best{\u8221\'94} institutional structure for protecting property rights; but it does raise \softline
serious questions about institutional choice, which deserve more investigation than they have 
received to date. \par
}{\plain \fs24 \par
}\pard \fs24\qc\sl480\slmult1 
{\plain \fs24 }{\plain \fs24 \b A BRIEF NOTE ON METHOD AND TERMINOLOGY}{\plain \fs24 \par
}\pard \fs24\sl480\slmult1 
{\plain \fs24 \par
}{\plain \fs24 \tab This paper is comparative in two respects.  First, it is a work of comparative law, which \softline
compares and contrasts the legal institutions of two different countries (the US and the UK).  At \softline
the same time, it is a work of comparative institutional analysis (as all sound comparative legal \softline
scholarship naturally is) in that it considers the various advantages (benefits) and disadvantages \softline
(costs) of alternative institutional solutions to social problems.  The institutional comparison, in \softline
this case, may be expressed in several different ways: (1) between US rules requiring just \softline
compensation for takings with UK constitutional rules that do not }{\plain \fs24 \i require }{\plain \fs24 just compensation in \softline
any case; (2) between judicial review of takings in the US and no judicial review of takings in the \softline
UK; or (3) between the courts as final arbiters of takings in the US and Parliament (a legislative \softline
body) as the supreme determiner of takings in the UK.\par
}{\plain \fs24 \tab To avoid confusion, let me be clear about what I mean by an {\u8220\'93}institution.{\u8221\'94}  As used in \softline
this paper, the term {\u8220\'93}institution{\u8221\'94} refers to the {\u8220\'93}rules of the game,{\u8221\'94} as Douglass North calls them, \softline
{\u8220\'93}}{\plain \fs24 the humanly devised constraints that shape human interaction.{\u8221\'94} These include both {\u8220\'93}formal \softline
constraints {\u8211\'96} such as rules that human beings devise{\u8221\'94} and {\u8220\'93}informal constraints {\u8211\'96} such as \softline
conventions and codes of behavior.{\u8221\'94}{}{\plain \fs24 \super 6{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 6}{}{\plain \fs24   }{\plain \fs24 \scaps Douglass C. North, Institutions, Institutional Change and Economic \softline
Performance}{\plain \fs24  3-4 (1990).}}}
}{\plain \fs24 }{\plain \fs24   Legal rules, such as judicial review, the taking clause, and \softline
property itself, are {\u8220\'93}institutions.{\u8221\'94} So, too, are political processes.  Legislatures and courts, 
however, are not institutions, but organizations, which create, implement or enforce institutions.  \softline
There are, of course, alternative definitions of {\u8220\'93}institution,{\u8221\'94} which are no less legitimate than \softline
North{\u8217\'92}s definition, which I adopt in this paper. {}{\plain \fs24 \super 7{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 7}{}{\plain \fs24  }{\plain \fs24 \i See, e.g.}{\plain \fs24 , }{\plain \fs24 \scaps Komesar}{\plain \fs24 , }{\plain \fs24 \i supra}{\plain \fs24  note 4 (defining {\u8220\'93}institution{\u8221\'94} to include }{\plain \fs24 decision-making \softline
processes, such as courts and legislatures, but not legal rules themselves); }{\plain \fs24 Avner Greif,}{\plain \fs24  }{\plain \fs24 \i Cultural \softline
beliefs and the organization of society: A historical and theoretical reflection on collectivist and \softline
individualist societies}{\plain \fs24 , 102  }{\plain \fs24 \scaps J.Pol. Econ. }{\plain \fs24 912 }{\plain \fs24 (1994) (defining }{\plain \fs22 \fs22 {\u8220\'93}institution{\u8221\'94} inclusively to include \softline
both rules and the organizations that design, implement, and enforce them)}{\plain \fs24 \scaps ; Masashiko Aoki, \softline
Toward a Comparative Institutional Analysis}{\plain \fs24  (2001) (defining {\u8220\'93}institution{\u8221\'94} in game-theoretic terms as a Nash equilibrium).}}}
}{\plain \fs24   \ul0 \tab \ul0 \tab \par
}{\plain \fs24 \par
}\pard \fs24\qc 
{\plain \fs24 \b PROPERTY VERSUS DEMOCRACY: \par
}\pard \fs24\qc 
{\plain \fs24 \b THE MAJORITARIAN DIFFICULTY FROM MADISON TO SCALIA (VIA HOLMES)}{\plain \fs24 \ul0 \tab \par
}\pard \fs24
{\plain \fs24 \par
}{\plain \fs24 \par
}\pard \fs24\sl480\slmult1 
{\plain \fs24 \tab Jurists since James Madison (and no doubt before him) have presumed the existence of \softline
an inherent tension between democracy and property.  Madison foresaw that property owners \softline
would become, in the words of James Ely, a {\u8220\'93}vulnerable minority,{\u8221\'94}{}{\plain \fs24 \super 8{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 8}{}{\plain \fs24   }{\plain \fs24 \scaps James W. Ely, Jr., The Guardian of Every Other Right: A Constitutional \softline
History of Property Rights}{\plain \fs24  54 (1998). }}}
}{\plain \fs24  subject to majoritarian \softline
biases in legislative processes.  To prevent the majoritarian abuse of private property, Madison \softline
inserted a {\u8220\'93}takings clause{\u8221\'94} into the Bill of Rights.{}{\plain \fs24 \super 9{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 9}{}{\plain \fs24   }{\plain \fs24 US Const. Amend. V.  ( {\u8220\'93}nor shall private property be taken for public use, without just \softline
compensation{\u8221\'94}).  It is worth noting that the takings clause was not added to the Bill of Rights \softline
because of perceived abuses of property rights in the colonies by the British Crown.  As William \softline
Stoebuck has written, {\u8220\'93}while the British were scoundrels in a thousand ways, they never abused \softline
eminent domain.{\u8221\'94}  }{\plain \fs24 \i William Stoebuck, A General Theory of Eminent Domain}{\plain \fs24 , 47 }{\plain \fs24 \scaps Wash. L.Rev. \softline
553, 594 (553).}}}
}{\plain \fs24   \par
}{\plain \fs24 \par
}{\plain \fs24 \tab In the twentieth century, the tension between property rights and democracy that \softline
concerned Madison grew along with the welfare/administrative state, which increasingly \softline
regulated private property for the public (or some public{\u8217\'92}s) welfare.  As property regulation \softline
increased, so too did judicial suspicion that legislative bodies were pressing private property \softline
rights into public service without compensation, in violation of the Fifth Amendment{\u8217\'92}s takings \softline
clause.  Justice Holmes expressed this suspicion in the Supreme Court{\u8217\'92}s 1922 }{\plain \fs24 \i Pennsylvania Coal}{\plain \fs24  \softline
ruling, when he wrote that {\u8220\'93}a strong public desire to improve the public condition is not enough \softline
to warrant achieving the desire by a shorter cut than the constitutional way of paying for the \softline
change.{\u8221\'94}  Holmes believed that takings were a {\u8220\'93}natural{\u8221\'94} consequence of ever-increasing police \softline
power regulations {\u8211\'96} the death by a thousand cuts of the takings clause (as well as the due process \softline
and contract clauses{}{\plain \fs24 \super 10{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 10}{}{\plain \fs24   }{\plain \fs24 \i Id.}}}
}{\plain \fs24 ) and private property itself.  In }{\plain \fs24 \i Pennsylvania Coal}{\plain \fs24 , he wrote that when the \softline
{\u8220\'93}seemingly absolute{\u8221\'94} protection of private property {\u8220\'93}is found to be qualified by the police power, \softline
the natural tendency of human nature is to extend the qualification more and more until at last \softline
private property disappears.{\u8221\'94}  To prevent this end, Holmes invented, virtually out of whole \softline
cloth,{}{\plain \fs24 \super 11{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 11}{}{\plain \fs24   }{\plain \fs24 \i See}{\plain \fs24  }{\plain \fs24 \scaps Daniel H. Cole, Pollution and Property: Comparing Ownership \softline
Institutions for Environmental Protection }{\plain \fs24 (2002) (arguing that there is no basis in the text \softline
or original understanding of the Fifth Amendment{\u8217\'92}s taking clause for regulatory takings generally \softline
or for Holmes{\u8217\'92}s diminution in value test); }{\plain \fs24 \scaps Fred P. Bosselman, David L. Callies, & John \softline
Banta, The Taking Issue: A Study of the Constitutional Limits of Governmental \softline
Authority to Regulate the Use of Privately-owned Land Without Paying \softline
Compensation to the Owners }{\plain \fs24 124 (1973) (describing Justice Holmes{\u8217\'92}s opinion in \softline
}{\plain \fs24 \i Pennsylvania Coal}{\plain \fs24  as a {\u8220\'93}rewriting{\u8221\'94} of the Constitution).}}}
}{\plain \fs24  the doctrine of {\u8220\'93}regulatory takings.{\u8221\'94}  Without denying the state{\u8217\'92}s (or the federal \softline
government{\u8217\'92}s) authority to regulate private property, Holmes noted that if some police-power 
regulation {\u8220\'93}goes too far{\u8221\'94} (in diminishing the value of private property), it will constitute a \softline
compensable taking, as if the government had acted pursuant to eminent domain.{}{\plain \fs24 \super 12{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 12}{}{\plain \fs24   260 US 393, 415 (1922). }}}
}{\plain \fs24 \par
}{\plain \fs24 \tab Seventy years after }{\plain \fs24 \i Pennsylvania Coal}{\plain \fs24 , the Supreme Court revisited regulatory takings \softline
doctrine in the case of }{\plain \fs24 \i Lucas v. South Carolina Coastal Council}{\plain \fs24 .{}{\plain \fs24 \super 13{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 13}{}{\plain \fs24   505 US 1003 (1992).}}}
}{\plain \fs24   In his opinion for the majority \softline
in that case, Justice Antonin Scalia built on the foundations Justice Holmes had established in \softline
}{\plain \fs24 \i Pennsylvania Coal}{\plain \fs24 .  And Scalia was even more forthright in expressing his deep distrust of \softline
legislative motives.  In }{\plain \fs24 \i Lucas}{\plain \fs24 , he wrote that, legislatures would always seek to avoid paying \softline
compensation for eminent domain takings by casting their actions in police-power terms: {\u8220\'93}Since . \softline
. . a [police power] justification can be formulated in practically every case, this amounts to a test \softline
of whether the legislature has a stupid staff.{\u8221\'94}{}{\plain \fs24 \super 14{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 14}{}{\plain \fs24   }{\plain \fs24 \i Id. }{\plain \fs24 at 1025 n. 12.}}}
}{\plain \fs24   On this view, judicial review is necessary to \softline
protect private property because democratic political bodies cannot be trusted to do so; to the \softline
contrary, they constitute the primary threat to private property rights.\par
}{\plain \fs24 \tab Much has been written over the years about Holmes{\u8217\'92}s opinion in }{\plain \fs24 \i Pennsylvania Coal}{\plain \fs24  and \softline
Scalia{\u8217\'92}s opinion in }{\plain \fs24 \i Lucas}{\plain \fs24 , but hardly anyone has questioned the premise that judicial review is \softline
essential to protect private property owners from uncompensated takings.  Even {\u8220\'93}Liberal{\u8221\'94} judges \softline
like Justice William Brennan have argued that judicial review is a necessary institution to protect \softline
private property rights from overzealous regulation as well as outright takings of title.{}{\plain \fs24 \super 15{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 15}{}{\plain \fs24   }{\plain \fs24 \i See}{\plain \fs24  }{\plain \fs24 \i San Diego Gas & Electric Co. v. City of San Diego et al.}{\plain \fs24 , 450 US 621, 636-661 \softline
(Brennan, J., dissenting).}}}
}{\plain \fs24  \par
}{\plain \fs24 \ul0 \tab Recently, however, scholars have raised questions about the need, desirability, or utility \softline
of judicial review for protecting property rights against democratic regulation. \par
}{\plain \fs24 \par
}\pard \fs24\qc 
{\plain \fs24 }{\plain \fs24 \b QUESTIONING THE MADISONIAN TRADITION: \par
}\pard \fs24\qc 
{\plain \fs24 \b FISCHEL ON THE VIRTUES OF DEMOCRACY \par
}\pard \fs24\qc 
{\plain \fs24 \b AND KOMESAR ON THE (COMPARATIVE) FUTILITY OF JUDICIAL REVIEW\par
}\pard \fs24
{\plain \fs24 \b \par
}\pard \fs24\sl480\slmult1 
{\plain \fs24 \par
}{\plain \fs24 \tab As noted in the introductory section, William Fischel believes that owners of private \softline
property generally are capable of protecting their interests in the political process; they are not a \softline
{\u8220\'93}discrete and insular minority{\u8221\'94}{}{\plain \fs24 \super 16{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 16}{}{\plain \fs24 }{\plain \fs24 \scaps   }{\plain \fs24 \i United States v. Carolene Products Co.}{\plain \fs24 , 304 US 144, 153 n. 4.  }{\plain \fs24 \i See also}{\plain \fs24  }{\plain \fs24 \scaps John Hart \softline
Ely, Democracy and Distrust }{\plain \fs24 (1980).}}}
}{\plain \fs24  likely to be harmed by majoritarian excesses.  According to \softline
Fischel, {\u8220\'93}economic interest groups would be able to form alliances to protect themselves from \softline
short-sighted populism.{\u8221\'94}  This claim is consistent with economic theories of collective action \softline
according to which small, discrete groups can coalesce around an issue of great interest to them, \softline
and exert greater influence on the political process than larger, more diffuse groups, including the \softline
{\u8220\'93}general public.{\u8221\'94}{}{\plain \fs24 \super 17{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 17}{}{\plain \fs24   }{\plain \fs24 \i See generally }{\plain \fs24 \scaps Mancur Olson, The Logic of Collective Action: Public Goods \softline
and the Theory of Groups }{\plain \fs24 (1971).}}}
}{\plain \fs24 \super }{\plain \fs24   More contentiously, perhaps, Fischel asserts that {\u8220\'93}[v]oters and \softline
representatives in large jurisdictions also are more likely to be concerned with their reputation for \softline
fair dealings, since bad reputations are apt to harm future generations.{\u8221\'94}{}{\plain \fs24 \super 18{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 18}{}{\plain \fs24 }{\plain \fs24 \scaps   Fischel}{\plain \fs24 , }{\plain \fs24 \i supra}{\plain \fs24  note 2, at 180.}}}
}{\plain \fs24 \super }{\plain \fs24   This amounts to a \softline
claim that governments in larger jurisdictions inherently are more trustworthy with private \softline
property rights than governments in smaller jurisdictions.  So, Fischel repudiates the general 
judicial distrust of legislatures (and the police power) that motivated Holmes to invent \softline
{\u8220\'93}regulatory takings{\u8221\'94} law in }{\plain \fs24 \i Pennsylvania Coal}{\plain \fs24  and Scalia to elaborate on that doctrine in }{\plain \fs24 \i Lucas}{\plain \fs24 .  \softline
Fischel concludes that in many circumstances, especially in larger jurisdictions, {\u8220\'93}political action, \softline
which is often disparaged as rent-seeking, is sufficient to protect property without the help of \softline
judges.{\u8221\'94}{}{\plain \fs24 \super 19{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 19}{}{\plain \fs24   }{\plain \fs24 \i Id.}{\plain \fs24  at 324. }}}
}{\plain \fs24   He supports this conclusion by noting that }{\plain \fs24 the United States ranks near the top of \softline
international comparisons of security of property rights, despite the rise of the welfare state, with \softline
its increasing limitations on land uses, and limited judicial review of government economic \softline
regulation since the decline of the }{\plain \fs24 \i Lochner}{\plain \fs24  era..{}{\plain \fs24 \super 20{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 20}{}{\plain \fs24   }{\plain \fs24 \i Id.}{\plain \fs24  at 140}}}
}{\plain \fs24 }{\plain \fs24   Even if that were not the case, Fischel doubts \softline
the ability of judges to do a better, that is, more efficient, job than the political process.{}{\plain \fs24 \super 21{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 21}{}{\plain \fs24   }{\plain \fs24 \i Id.}{\plain \fs24  at 317.}}}
}{\plain \fs24   \par
}{\plain \fs24 \tab Neil Komesar does not share Fischel{\u8217\'92}s sanguine trust of political processes, but he \softline
certainly concurs in Fischel{\u8217\'92}s doubts about the judiciary{\u8217\'92}s incapacity to efficiently and effectively \softline
protect property rights.  As }{\plain \fs24 noted earlier, }{\plain \fs24 Komesar refers to democratic regulatory {\u8220\'93}institutions{\u8221\'94} \softline
as {\u8220\'93}}{\plain \fs24 highly flawed..., ... corrupt, excessive, and repressive.{\u8221\'94}{}{\plain \fs24 \super 22{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 22}{}{\plain \fs24   }{\plain \fs24 \i See supra}{\plain \fs24  note 5 and accompanying text.}}}
}{\plain \fs24 \sect \sectd \sbknone\margtsxn1350\pgndec\headery1440\footery1440 
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\pard \fs24\sl480\slmult1 
}{\plain \fs24   They suffer from twin {\u8220\'93}political \softline
malfunctions{\u8221\'94} of majoritarian bias (the tyranny of the majority) and minoritarian bias (control by \softline
discrete interest groups, who do not represent the {\u8220\'93}public interest{\u8221\'94}).  Uncompensated takings of \softline
private property can occur as a consequence of either majoritarian or minoritarian malfunctions.  \softline
But this fact alone cannot support the conclusion that judicial review is a necessary institution for \softline
protecting property rights.  Komesar rightly notes that the flaws of one institution cannot be used 
to justify the selection of another institution, which may have equal or worse flaws.  Comparative \softline
institutional analysis is needed to weigh the respective costs and benefits of outcomes under \softline
alternative institutional solutions, all of which are flawed to some extent or other.  \par
}{\plain \fs24 \tab When it comes to protecting private property rights, Komesar believes that the judicial \softline
system may be even more flawed than the political process.  It{\u8217\'92}s not that courts are unwilling to \softline
protect property rights, but they suffer from certain {\u8220\'93}supply-side constraints{\u8221\'94} and other \softline
institutional deficiencies, which disable them from doing so adequately.  Two of these \softline
deficiencies are particularly important.  First, Komesar believes that fully protecting property \softline
rights would outstrip judicial resources; the supply of judicial compensation remedies could not \softline
possibly keep pace with the demand for them.  Second, the remedy for takings of private property \softline
{\u8211\'96} just compensation {\u8211\'96} {\u8220\'93}corrects majoritarian bias, not minoritarian bias.{\u8221\'94}  To the extent takings \softline
occur because of the latter political malfunction, the judicial remedy would not correct the \softline
problem {\u8211\'96} or, more accurately, it would fix the wrong problem.  If a taking occurs because of \softline
legislation or regulations that benefit not the general public (the majority) but a certain interest \softline
group, requiring the government, and through it the general public (the taxpayers), to pay \softline
compensation would only compound the injustice.{}{\plain \fs24 \super 23{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 23}{}{\plain \fs24   This point, Komesar notes, is where Richard Epstein{\u8217\'92}s theory of takings goes seriously \softline
awry.  }{\plain \fs24 \scaps Komesar, }{\plain \fs24 \i supra}{\plain \fs24  note 4,}{\plain \fs24 \scaps  }{\plain \fs24 at 94-95.  Epstein posits that virtually all government regulations \softline
constitute compensable takings, and that these takings are primarily the result of minoritarian \softline
malfunctions (rent-seeking).  }{\plain \fs24 \i See}{\plain \fs24 \scaps  Richard A. Epstein, Takings: Private Property and the \softline
Power of Eminent Domain }{\plain \fs24 (1985).  But the remedy of just compensation, as Komesar points \softline
out, simple is not appropriate to minoritarian malfunctions.}}}
}{\plain \fs24   Consequently, Komesar concludes, the \softline
political system may actually provide greater protection for property rights than the judicial \softline
system could possibly provide.  He goes so far as to assert that the political/regulatory process 
may be }{\plain \fs24 the {\u8220\'93}best friend{\u8221\'94} private property owners have.{}{\plain \fs24 \super 24{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 24}{}{\plain \fs24 }{\plain \fs24 \scaps   Komesar, }{\plain \fs24 \i supra}{\plain \fs24  note 4, }{\plain \fs24 at 106.}}}
}{\plain \fs24  }{\plain \fs24 \par
}{\plain \fs24 \par
}\pard \fs24\qc 
{\plain \fs24 \b POLITICAL PROTECTION OF PRIVATE PROPERTY: \par
}\pard \fs24\qc 
{\plain \fs24 \b POLITICAL-ECONOMIC THEORY AND EVIDENCE \par
}\pard \fs24\qc 
{\plain \fs24 \b FROM THE UNITED KINGDOM AND AMERICAN STATES}{\plain \fs24 \par
}\pard \fs24\sl480\slmult1 
{\plain \fs24 \par
}{\plain \fs24 \tab Many American legal scholars would no doubt find Neil Komesar{\u8217\'92}s conclusion}{\plain \fs24  \softline
disconcerting.  How can government be {\u8220\'93}the best friend{\u8221\'94} of private property owners, while \softline
posing }{\plain \fs24 the greatest threat {\u8211\'96} through police-power regulations {\u8211\'96} to private property?  Justice \softline
Scalia{\u8217\'92}s view seems to be that relying on legislative bodies to protect property rights is like \softline
relying on foxes to guard the hen house.  But positive reasons exist, in addition to Komesar{\u8217\'92}s \softline
negative reason {\u8211\'96} the futility of judicial review {\u8211\'96} for expecting democratic bodies to respect and \softline
protect property rights.  Those reasons have their basis in political-economic theory, which is \softline
supported by substantial empirical evidence from the United Kingdom (and American states).  In \softline
the UK, no constitutional right exists to compensation for takings (either outright or regulatory).  \softline
Nevertheless, Parliament {\u8211\'96} a political body {\u8211\'96} almost never takes property without paying \softline
compensation. \par
}{\plain \fs24 \par
}{\plain \fs24 \b A Theoretical Basis for Political Protection of Private Property }{\plain \fs24 \par
}{\plain \fs24 \par
}{\plain \fs24 \tab The following six widely-accepted, but contestable, propositions of positive political-economic theory suggest that political institutions would protect property rights to some (albeit 
uncertain) extent, even in the absence of judicial review: (1) all governments (even dictatorships) \softline
require substantial political and military support, as well as revenue, to survive (assuming viable \softline
competitors);{}{\plain \fs24 \super 25{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 25}{}{\plain \fs24 }{\plain \fs24 \scaps   }{\plain \fs24 \i See }{\plain \fs24 \scaps Douglass C. North, Structure and Change in Economic History}{\plain \fs24  22 (1981); \softline
Christopher Clague, Philip Keefer, Stephen Knack & Mancur Olson, }{\plain \fs24 \i Property and Contract \softline
Rights in Autocracies and Democracies}{\plain \fs24 , 1 }{\plain \fs24 \scaps J.Econ. Growth}{\plain \fs24  243 (1996) (finding that property \softline
and contract rights are significantly associated with a proxy for the time horizons for autocrats \softline
(the log of years in power), and, in democracies, with the duration of democratic government.).}}}
}{\plain \fs24  (2) the government{\u8217\'92}s political/military support and revenue, as well as the overall \softline
level of economic growth in society, depend critically on the structure of institutions;{}{\plain \fs24 \super 26{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 26}{}{\plain \fs24   }{\plain \fs24 \scaps Douglass C. North and Robert Paul Thomas, The Rise of the Western \softline
World: A New Economic History}{\plain \fs24  91 (1973).}}}
}{\plain \fs24  (3) secure \softline
property rights are an important component of the state{\u8217\'92}s institutional structure because they \softline
provide a necessary basis for capitalization and economic exchange, which lead to economic \softline
growth and provide revenues (through taxation) to the government;{}{\plain \fs24 \super 27{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 27}{}{\plain \fs24   }{\plain \fs24 \i See id.}{\plain \fs24  at 5.  }{\plain \fs24 \i Also see generally }{\plain \fs24 \scaps Hernando de Soto, The Mystery of Capital: Why \softline
Capitalism Triumphs in the West and Fails Everywhere Else }{\plain \fs24 (2000); Stephen Knack and \softline
Philip Keefer, }{\plain \fs24 \i Institutions and Economic Performance: Cross-Country Tests Using Alternative \softline
Institutional Measures}{\plain \fs24 , 7 }{\plain \fs24 \scaps Econ. & Politics 207 (1995)(}{\plain \fs24 finding that institutions that protect \softline
property rights are crucial for economic growth and rates of investment as a share of gross \softline
domestic product.).}}}
}{\plain \fs24  (4) property rights are \softline
costly to design and enforce;{}{\plain \fs24 \super 28{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 28}{}{\plain \fs24   }{\plain \fs24 \i See}{\plain \fs24  Ronald H. Coase, }{\plain \fs24 \i The Problem of Social Cost}{\plain \fs24 , 3 }{\plain \fs24 \scaps J.L. & Econ}{\plain \fs24 . 1-44 (1960).}}}
}{\plain \fs24  (4) governments generally are able to define and enforce property \softline
rights at lower cost than could voluntary groups, especially in expanding markets;{}{\plain \fs24 \super 29{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 29}{}{\plain \fs24   }{\plain \fs24 \scaps North and Thomas}{\plain \fs24 \i , supra}{\plain \fs24  note 26, at 7.  Thus, {\u8220\'93}[j]ustice and the enforcement of \softline
property rights are simply another example of a public good publicly funded.{\u8221\'94}  }{\plain \fs24 \i Id.}{\plain \fs24  }}}
}{\plain \fs24  (5) even on \softline
the most parsimonious theory of the state, completely self-interested, rent-seeking governments \softline
can be expected to establish and enforce property rights to the extent that the governors believe \softline
private property rights will increase their political and military support and their revenues, 
thereby increasing their prospects for survival;{}{\plain \fs24 \super 30{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 30}{}{\plain \fs24   }{\plain \fs24 \scaps Itai Sened, The Political Institution of Private Property }{\plain \fs24 81 (1997).  }{\plain \fs24 \i See also}{\plain \fs24  \softline
}{\plain \fs24 \scaps North and Thomas}{\plain \fs24 , }{\plain \fs24 \i supra}{\plain \fs24  note 26, at 6 ({\u8220\'93}we pay government to establish and enforce property \softline
rights{\u8221\'94}); }{\plain \fs24 \scaps North}{\plain \fs24 , }{\plain \fs24 \i supra}{\plain \fs24  note 25, at 33-34 ({\u8220\'93}The state . . . will encourage and specify efficient \softline
property rights only to the extent that they are consistent with the wealth-maximizing objectives \softline
of those who run the state{\u8221\'94}); }{\plain \fs24 \i  }{\plain \fs24 VI Acts of the Privy Council of England: Colonial Series 591 (W.L. \softline
Grant and J. Munro eds., 1908-12), }{\plain \fs24 \i quoted in}{\plain \fs24  P.J. Marhsall, }{\plain \fs24 \i Parliament and Property Rights}{\plain \fs24 , }{\plain \fs24 \i in \softline
}{\plain \fs24 \scaps Early Modern Conceptions of Property}{\plain \fs24  530, 532-33 (J. Brewer and S. Staves eds., 1996)}{\plain \fs24   \softline
({\u8220\'93}{\u8216\'91}Experience shows that the possession of property is the best security for a due obedience and \softline
submission to government.{\u8217\'92}{\u8221\'94}).}}}
}{\plain \fs24  (6) the structure of property rights may or may \softline
not maximize either social welfare (efficiency) or social justice (equity).{}{\plain \fs24 \super 31{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 31}{}{\plain \fs24 }{\plain \fs24 \i   }{\plain \fs24 \i See }{\plain \fs24 \scaps North, }{\plain \fs24 \i supra }{\plain \fs24 note 25, at }{\plain \fs24 \scaps 22 (1981) ({\u8220\'93}}{\plain \fs24 Property rights that produce sustained \softline
economic growth have seldom held sway throughout history. . .{\u8221\'94}) }{\plain \fs24 \i and }{\plain \fs24 at 28 n. 12 ({\u8220\'93}{\u8216\'91}inefficient{\u8217\'92} \softline
property rights are the rule, not the exception{\u8221\'94}); }{\plain \fs24 \scaps North and Thomas}{\plain \fs24 , }{\plain \fs24 \i supra}{\plain \fs24  note 26, at}{\plain \fs24 \scaps  }{\plain \fs24 7 ({\u8220\'93}there \softline
is no guarantee that the government will find it to be in its interest to protect those property rights \softline
which encourage efficiency (}{\plain \fs24 \i i.e}{\plain \fs24 ., raise the private rates of return on economic activities towards \softline
the social rate) as against those in which the property rights protected may thwart growth \softline
altogether. . . . [A] prince may find short-run advantage in selling exclusive monopoly rights \softline
which may thwart innovation and factor mobility (and, therefore, growth) because he can obtain \softline
more revenue immediately from such a sale than from any other source. . . .{\u8221\'94}); }{\plain \fs24 \scaps Sened}{\plain \fs24 , }{\plain \fs24 \i supra}{\plain \fs24  note \softline
30, at 101 ({\u8220\'93}One reason why governments fail to seize opportunities to enrich society and \softline
themselves by creating property rights, and why they often grant property rights that only \softline
impoverish society, is that they do not have complete information.{\u8221\'94}).}}}
}{\plain \fs24 \par
}{\plain \fs24 \tab The political-economic propositions listed above {\u8211\'96} especially proposition (5) {\u8211\'96} suggest \softline
that no contradiction exists between the assumption that governments operate strategically to \softline
further their own interests and the prediction that those same governments will enforce private \softline
property rights.{}{\plain \fs24 \super 32{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 32}{}{\plain \fs24   }{\plain \fs24 \i See id. }{\plain \fs24 at 5. }}}
}{\plain \fs24   Government really can be the {\u8220\'93}best friend{\u8221\'94} private property owners have, as \softline
Neil Komesar suggests,{}{\plain \fs24 \super 33{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 33}{}{\plain \fs24   }{\plain \fs24 \i See supra}{\plain \fs24  note 24 and accompanying text.}}}
}{\plain \fs24  while constituting at the same time the greatest threat to private \softline
property rights through expropriation and regulation.  The puzzle is solved: governments are not 
friends }{\plain \fs24 \i or }{\plain \fs24 threats to private property; they are friends }{\plain \fs24 \i and}{\plain \fs24  threats.  According to Itai Sened, {\u8220\'93}[t]he \softline
key to the solution of this puzzle is to realize the fact that governments{\u8217\'92} involvement in the grant \softline
and enforcement of rights reflects their dependence on the support of their citizens.  Most of the \softline
benefits that government officials obtain are extracted from the citizens.  Governments depend \softline
on popular support and tax revenues to remain in power.  Their sensitivity to the interests of the \softline
common citizen is thus crucial for their own survival and prosperity.{\u8221\'94}{}{\plain \fs24 \super 34{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 34}{}{\plain \fs24 }{\plain \fs24 \scaps   Sened}{\plain \fs24 , }{\plain \fs24 \i supra}{\plain \fs24  note 30, at 5. }}}
}{\plain \fs24   It follows that sensitivity \softline
to the property rights of the common citizen is crucial to a government{\u8217\'92}s political survival and \softline
prosperity.  \par
}{\plain \fs24 \par
}{\plain \fs24 \b Takings and Compensation in Practice in the UK}{\plain \fs24 \par
}{\plain \fs24 \tab \tab \tab \tab \tab \tab \par
}{\plain \fs24 \tab The United Kingdom provides several hundred years{\u8217\'92} worth of historical evidence to \softline
support the theory that political institutions would substantially protect private property rights, \softline
even in the absence of constitutional just compensation requirements and judicial review of \softline
legislation.}{\plain \fs24   As in the US, Parliament virtually always provides compensation when it takes title \softline
to private property, but only rarely compensates for regulatory impositions on private property \softline
rights.\par
}{\plain \fs24 \tab \tab \par
}{\plain \fs24 \par
}{\plain \fs24 \par
}{\plain \fs24 \par
}{\plain \fs24 \tab }{\plain \fs24 \i The {\u8220\'93}Convention{\u8221\'94} of Compensation for Expropriation (Taking Title)}{\plain \fs24  }{\plain \fs24 \i in the UK}{\plain \fs24 \par
}{\plain \fs24 \par
}{\plain \fs24 In the UK, as in the US, governments have {\u8220\'93}followed the practice of expropriating land for \softline
certain purposes for several centuries.{\u8221\'94}{}{\plain \fs24 \super 35{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 35}{}{\plain \fs24   Stoebuck, }{\plain \fs24 \i supra }{\plain \fs24 note 9, at }{\plain \fs24 561.}}}
}{\plain \fs24   But there is an important difference.  When a \softline
government in the US expropriates title to land, it }{\plain \fs24 \i must }{\plain \fs24 pay {\u8220\'93}just compensation,{\u8221\'94} according to the \softline
takings clause of the Fifth Amendment to the Constitution.  But in the United Kingdom, there is \softline
no constitutional right of compensation for governmental takings.  Courts do not have the \softline
authority to require Parliament to pay or to determine what constitutes adequate compensation.{}{\plain \fs24 \super 36{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 36}{}{\plain \fs24   }{\plain \fs24 \scaps Beverly J. Pooley, The Evolution of British Planning Legislation}{\plain \fs24  17 (1982) \softline
({\u8220\'93}There is . . .no constitutional requirement in Britain that compensation should be paid, and the \softline
amount of compensation has always been a matter of executive, and not judicial, determination.).}}}
}{\plain \fs24   \softline
Nevertheless, it has become }{\plain \fs24 \i conventional }{\plain \fs24 for Parliament to pay compensation.}{\plain \fs24 \par
}{\plain \fs24 \tab The distinction between constitutional }{\plain \fs24 \i law}{\plain \fs24  and }{\plain \fs24 \i convention}{\plain \fs24  is fundamental.  As Professor \softline
K Davies has written: \par
}{\plain \fs24 \par
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\pard \fs24\li720\ri720\sl480\slmult1 
{\plain \fs24 The {\u8216\'91}unwritten{\u8217\'92} British constitution includes a great many statutes, but any British \softline
statute can be repealed by another.  The passing and repeal of Acts of Parliament \softline
is ultimately a question of political power, exercised (subject ultimately to \softline
revolution, as in 1689) in accordance not only with existing statutes but also with \softline
constitutional conventions.  These are not law (which is why they are called \softline
{\u8216\'91}conventions{\u8217\'92}) but are tacitly observed in constitutional practice in order to avoid \softline
anarchy or revolution, the system in effect being one of self-regulation.  One of 
the conventions is that the courts do not enforce or change these conventions.  \softline
They are instead enforced by political observance and changed by imperceptible \softline
evolution except when a relevant statute is passed.{}{\plain \fs24 \super 37{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 37}{}{\plain \fs24   Professor K Davies, }{\plain \fs24 \i Eminent domain and the jury}{\plain \fs24 , 150 }{\plain \fs24 \scaps New L.J.}{\plain \fs24  1079 (14 July 2000).}}}
}{\plain \fs24 \par
}\pard \fs24\sl480\slmult1 
{\plain \fs24 \par
}{\plain \fs24 \tab In the UK, the government{\u8217\'92}s authority to expropriate land stems from two distinct \softline
sources: the Crown{\u8217\'92}s prerogative powers (also known as {\u8220\'93}purveyance{\u8221\'94}) and Parliament{\u8217\'92}s \softline
supreme and plenary authority to govern the country.  Under the Crown{\u8217\'92}s prerogative power:\par
}{\plain \fs24 \par
}\pard \fs24\li720\ri720\sl480\slmult1 
{\plain \fs24 the king or his ministers might make use of private land and to some extent even \softline
destroy the substance of it, all without compensation.  For instance, the king might \softline
. . . dig in private land for saltpeter to make gunpowder for defense of the realm.  \softline
Or he might, through his commissioners of sewers, rebuild and repair ancient \softline
drains, ditches, and streams for draining the land to the sea.  This came from his \softline
power to guard against the sea and to regulate navigation.  From this same power, \softline
he might build and repair lighthouses, build dikes, and grant port franchises.  To \softline
carry out his prerogative to coin money, he had power to work all gold and silver \softline
mines. Fortifications could be built without compensation on private land, these \softline
being, of course, for defense of the realm.  Also without compensating, the king{\u8217\'92}s \softline
officers could raze private buildings and protect his subjects against a \softline
conflagration.{}{\plain \fs24 \super 38{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 38}{}{\plain \fs24 }{\plain \fs24 \i   }{\plain \fs24 Stoebuck, }{\plain \fs24 \i supra}{\plain \fs24  note 9, at 563.}}}
}{\plain \fs24 \par
}\pard \fs24\sl480\slmult1 
{\plain \fs24 \ul0 \tab One prerogative power the Crown never possessed, even before the Glorious Revolution \softline
of 1688-89, was the authority to expropriate }{\plain \fs24 land.{}{\plain \fs24 \super 39{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 39}{}{\plain \fs24   }{\plain \fs24 \i See Case of the Isle of Ely}{\plain \fs24 , 10 Coke, }{\plain \fs24 \scaps 141, 77}{\plain \fs24  Eng. Rep. 1139 (1610) }{\plain \fs24 \scaps (}{\plain \fs24 holding that the \softline
king could not, but Parliament could, empower sewer commissioners to expropriate privately \softline
owned lands needed for new drainage works).  Also }{\plain \fs24 \i see }{\plain \fs24 Stoebuck, }{\plain \fs24 \i supra}{\plain \fs24  note 9, at 564; Davies, \softline
}{\plain \fs24 \i supra}{\plain \fs24  note 37.}}}
}{\plain \fs24   This power resides in Parliament alone.{}{\plain \fs24 \super 40{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 40}{}{\plain \fs24   }{\plain \fs24 \i See}{\plain \fs24  }{\plain \fs24 \scaps William Blackstone, I Commentaries on the Laws of England }{\plain \fs24 140 (1979 \softline
[1765] ).}}}
}{\plain \fs24   As \softline
the {\u8220\'93}supreme{\u8221\'94} or {\u8220\'93}sovereign{\u8221\'94} governmental authority in the United Kingdom,{}{\plain \fs24 \super 41{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 41}{}{\plain \fs24 }{\plain \fs24 \scaps   Pooley}{\plain \fs24 , }{\plain \fs24 \i supra}{\plain \fs24  note 36, at 31 (referring to Parliament as {\u8220\'93}supreme{\u8221\'94});}{\plain \fs24 \scaps  Malcolm \softline
Grant, Urban Planning Law 19 (1982) (}{\plain \fs24 referring to {\u8220\'93}the sovereignty of Parliament).}}}
}{\plain \fs24  Parliament has \softline
plenary authority over the country.  It is {\u8220\'93}omnicompetent and might legislate over any matter that \softline
might come before it.{\u8221\'94}{}{\plain \fs24 \super 42{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 42}{}{\plain \fs24   Matthew P. Harrington, }{\plain \fs24 \i {\u8220\'93}Public Use{\u8221\'94} and the Original Understanding of the So-Called {\u8220\'93}Takings{\u8221\'94} Clause}{\plain \fs24 , 53 }{\plain \fs24 \scaps Hastings L.J.}{\plain \fs24  1245, 1266 (2002).}}}
}{\plain \fs24   Moreover, Parliamentary acts are presumed to represent the will of the \softline
entire nation because {\u8220\'93}everie Englishman is entended to bee there [in Parliament] present . . . and \softline
the consent of Parliament is taken to be eevrie mans consent.{\u8221\'94}{}{\plain \fs24 \super 43{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 43}{}{\plain \fs24 }{\plain \fs24 \scaps   Sir Thomas Smith, De Republica Anglorum}{\plain \fs24  49 (L. Alston ed. 1906 [1583]), \softline
}{\plain \fs24 \i quoted in}{\plain \fs24  Harrington, }{\plain \fs24 \i supra}{\plain \fs24  note 42, at 1265.}}}
}{\plain \fs24   This presumption of universal \softline
consent gives rise to the doctrine of Parliamentary infallibility, {}{\plain \fs24 \super 44{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 44}{}{\plain \fs24   }{\plain \fs24 \i Id.}{\plain \fs24   }{\plain \fs24 \i Also see}{\plain \fs24  }{\plain \fs24 \scaps Sir John Fortescue, De Laudibus Legum Anglie 41 }{\plain \fs24 (S.B. Chrimes ed. \softline
& trans. 1949) (noting that Parliamentary enactments have {\u8220\'93}the assent of the whole realm, so \softline
they cannot be injurious to the people nor fail to secure their advantage.{\u8221\'94}). Fortescue (c. 1395-1477) served as Lord Chancellor and as a Chief Justice of England.}}}
}{\plain \fs24  which disables the courts from \softline
voiding Parliamentary acts (although judges retain the authority to interpret and enforce \softline
statutes).{}{\plain \fs24 \super 45{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 45}{}{\plain \fs24   }{\plain \fs24 \i See}{\plain \fs24  Davies}{\plain \fs24 \i , supra}{\plain \fs24  note 37; Harrington, }{\plain \fs24 \i supra}{\plain \fs24  note 42, at 1266; Pooley, }{\plain \fs24 \i supra}{\plain \fs24  note 36, \softline
at 33 ({\u8220\'93}All that a court can do with an act of Parliament is to see that it has been validly passed 
and then to interpret and apply it. . . . [I]f an individual is aggrieved by a ministerial act, provided \softline
that the Minister has acted within the powers given to him by Parliament, the individual has no \softline
means of attack other than the political.{\u8221\'94}); }{\plain \fs24 \i Belfast Corporation v. O.D. Cars Ltd.}{\plain \fs24 , [1960] NI 60 \softline
(14 Dec. 1959) ({\u8220\'93}Matters of policy which are determined by the Government and carried out in \softline
detail by the aid of an experienced administrative staff cannot be confided to the judiciary.{\u8221\'94}).}}}
}{\plain \fs24   Nor does the Crown, by convention, intervene to veto or even voice concerns about 
legislation.{}{\plain \fs24 \super 46{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 46}{}{\plain \fs24   }{\plain \fs24 \i See }{\plain \fs24 Davies, }{\plain \fs24 \i supra}{\plain \fs24  note 37.}}}
}{\plain \fs24   Consequently, as Blackstone wrote, {\u8220\'93}[s]o long . . . as the English constitution lasts, \softline
we may venture to affirm, that the power of parliament is absolute and without control.{\u8221\'94}{}{\plain \fs24 \super 47{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 47}{}{\plain \fs24   }{\plain \fs24 \scaps Blackstone,}{\plain \fs24  }{\plain \fs24 \i supra}{\plain \fs24  note 40, at }{\plain \fs24 157.}}}
}{\plain \fs24   The \softline
only practical constraint on Parliament{\u8217\'92}s plenary authority is self-regulation, in view of possible \softline
electoral replacement, revolution or anarchy.{}{\plain \fs24 \super 48{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 48}{}{\plain \fs24   }{\plain \fs24 \i See}{\plain \fs24  Davies }{\plain \fs24 \i supra}{\plain \fs24  note 37; Pooley, }{\plain \fs24 \i supra}{\plain \fs24  note 36, at 31 (noting that, even though \softline
Parliament is {\u8220\'93}supreme,{\u8221\'94}  {\u8220\'93}there are many conventions which the government must observe, and \softline
a violation of these conventions would result at best in political annihilation of the offending \softline
government at the next election and at worst in revolution.{\u8221\'94}).}}}
}{\plain \fs24  \par
}{\plain \fs24 \tab Parliament{\u8217\'92}s authority to take or regulate private property, with or without compensation, \softline
is no more limited than its authority to legislate on any other matter of concern.  On the \softline
presumption that Parliament represents the interests of all the UK{\u8217\'92}s citizens, its decision to tax or \softline
take property from any subject has the implicit legal consent of the entire realm, including those \softline
from whom property is taken.{}{\plain \fs24 \super 49{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 49}{}{\plain \fs24   Harrington, }{\plain \fs24 \i supra}{\plain \fs24  note 42, at 1265.  }{\plain \fs24 \i Also see}{\plain \fs24  }{\plain \fs24 \scaps S.R. Gardiner, The Constitutional \softline
Documents of the Puritan Revolution}{\plain \fs24  114 (3d ed. 1906) (Parliament was thought {\u8220\'93}fittest \softline
for the preservation of that fundamental propriety which the subject has in his lands and goods, \softline
because each subject{\u8217\'92}s vote is included in whatsoever is there done.{\u8221\'94}).  Note how the \softline
presumption of consent satisfies, in theory, John Locke{\u8217\'92}s condition that {\u8220\'93}The Supream Power \softline
cannot take from any Man any part of his Property without his own consent.{\u8221\'94}}{\plain \fs24 \scaps   John Locke, Two \softline
Treatises of Government }{\plain \fs24 378, 380 (Peter Laslett ed., 1967 [1690]).  }}}
}{\plain \fs24   Parliament, thus, {\u8220\'93}{\u8216\'91}has an absolute power as to the possession of \softline
all temporal things within this realm, in whose hands soever they be . . . to take them from one \softline
man, and give them to another without any cause of consideration, that it binds the law of 
conscience.{\u8217\'92}{\u8221\'94}{}{\plain \fs24 \super 50{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 50}{}{\plain \fs24   Christopher St. German, {\u8220\'93}A Treatise Concerning the Division Between Spirituality and \softline
Temporality,{\u8221\'94} }{\plain \fs24 \i in}{\plain \fs24  9 }{\plain \fs24 \scaps The Complete Works of St. Thomas More}{\plain \fs24  177-212 (J.B. Trapp ed., 1979 \softline
[1532]), }{\plain \fs24 \i quoted in}{\plain \fs24  Harrington, }{\plain \fs24 \i supra}{\plain \fs24  note 42, at 1266.}}}
}{\plain \fs24   As Philip Nichols has written, {\u8220\'93}if an injury to property is expressly authorized by \softline
act of Parliament, the courts of justice can give no redress, no matter how grossly the provisions \softline
of the Magna Carta have been violated.{\u8221\'94}{}{\plain \fs24 \super 51{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 51}{}{\plain \fs24   }{\plain \fs24 \scaps Philip Nichols, Nichols on Eminent Domain}{\plain \fs24  1.22[1] (J.L. Sackman ed., 1997).}}}
}{\plain \fs24   Given Parliament{\u8217\'92}s plenary authority over property \softline
rights and compensation for takings, {\u8220\'93}the use of eminent domain was limited only by those \softline
restraints the legislature imposed on itself.{\u8221\'94}{}{\plain \fs24 \super 52{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 52}{}{\plain \fs24   Harrington, }{\plain \fs24 \i supra}{\plain \fs24  note 42, at 1269. }}}
}{\plain \fs24   In other words, Parliament is deemed trustworthy \softline
}{\plain \fs24 \i as a matter of law}{\plain \fs24  with private property rights.  \par
}{\plain \fs24 \tab As early as the 15th century, Parliament enacted laws authorizing the expropriation of \softline
land.  A 1427 statute, for example, allowed the commissioners of sewers to take land for locating \softline
new sewers, ditches, gutters, walls, bridges, and causeways for draining the lowlands in Lincoln \softline
County.{}{\plain \fs24 \super 53{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 53}{}{\plain \fs24   Stat. 6 Hen. 6, c. 5 (1427), }{\plain \fs24 \i described in }{\plain \fs24 Stoebuck}{\plain \fs24 \i , supra}{\plain \fs24  note 9, at 565.}}}
}{\plain \fs24   This statute did not explicitly require compensation for any land taken for these \softline
purposes, perhaps because they were in furtherance of the king{\u8217\'92}s prerogative powers relating to \softline
navigation.  By the early 16th century, however, it had become }{\plain \fs24 \i conventional }{\plain \fs24 (though never \softline
constitutionally required) for Parliament to pay compensation for expropriating private \softline
property.{}{\plain \fs24 \super 54{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 54}{}{\plain \fs24   }{\plain \fs24 \i See}{\plain \fs24  Stoebuck}{\plain \fs24 \i , supra}{\plain \fs24  note 9, at 578.   Even into the 16th century, however, Parliament \softline
sometimes expressly declined to pay compensation, for example, when it authorized road \softline
builders to take gravel or soil from private lands to repair the king{\u8217\'92}s highways. }{\plain \fs24 \i See}{\plain \fs24  9 Hen. 5, c. \softline
St. 2, c. 11 (1421); 5 Eliz. c. 13 (1562-63).  }{\plain \fs24 \i See also}{\plain \fs24  Harrington, }{\plain \fs24 \i supra}{\plain \fs24  note 42, at 1262 n. 62.  \softline
Parliament also declined to compensate the Church, in the 16th century, when it authorized King \softline
Henry VIII to expropriate the land holdings of more than 800 monastic and clerical 
establishments.  This massive expropriation did not lead to public outcry because the King left \softline
the lands{\u8217\'92} tenants in possession.  By taking title, Parliament merely transferred {\u8220\'93}tax{\u8221\'94} revenues \softline
from the Church to the King.  }{\plain \fs24 \i See}{\plain \fs24  }{\plain \fs24 \scaps Richard Pipes, Property and Freedom: The Story of \softline
How Through the Centuries Private Ownership Has Promoted Liberty and the Rule \softline
of Law}{\plain \fs24  134 (1999).  }}}
}{\plain \fs24   This convention evolved from statutes expressly requiring compensation.  For 
example, a 1514 statute authorized the City of Canterbury to improve a river, but expressly \softline
required the City to compensate anyone whose mill, bridge, or dam had to be removed as part of \softline
the river improvement project.{}{\plain \fs24 \super 55{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 55}{}{\plain \fs24   Stat. 6 Hen. 8, c. 17 (1514-1515), }{\plain \fs24 \i described in}{\plain \fs24  Stoebuck, }{\plain \fs24 \i supra}{\plain \fs24  note 9, at 566.}}}
}{\plain \fs24   In such statutes, Parliament did something Justice Scalia could \softline
never imagine an American government doing: it imposed compensation requirements upon \softline
itself, as well as all ministerial agencies operating pursuant to the statutory authority it provided.  \softline
Even statutes in which Parliament expressly denied payments of compensation for takings tacitly \softline
acknowledged the emergence of a compensation convention.  A 1512 statute, for example, \softline
authorized the taking of land along the Cornish coast for fortifications with an express denial of \softline
compensation.{}{\plain \fs24 \super 56{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 56}{}{\plain \fs24   Stat. 4 Hen. 8, c. 1 (1512).}}}
}{\plain \fs24   In discussing this statute, William Stoebuck appreciates that Parliament had \softline
good reason to deny compensation because {\u8220\'93}the act was in aid of the king{\u8217\'92}s prerogative to build \softline
fortifications;{\u8221\'94} but he also finds significant the fact that Parliament deemed it {\u8220\'93}necessary to \softline
}{\plain \fs24 \i explicitly }{\plain \fs24 deny compensation, hinting that someone in 1512 might otherwise have expected it.{\u8221\'94}{}{\plain \fs24 \super 57{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 57}{}{\plain \fs24   Stoebuck, }{\plain \fs24 \i supra}{\plain \fs24  note 9, at 566 (emphasis added).}}}
}{\plain \fs24  \par
}{\plain \fs24 \tab By the 17th and 18th centuries, the convention of paying compensation for expropriated \softline
land was so well established that {\u8220\'93}[n]o statute of that era has been found denying compensation \softline
for a taking.{\u8221\'94}{}{\plain \fs24 \super 58{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 58}{}{\plain \fs24   }{\plain \fs24 \i Id. }{\plain \fs24 at 579.}}}
}{\plain \fs24  }{\plain \fs24  Even during the great enclosure movement, from the 15th century to the middle 
of the 19th century, when Parliament transferred millions of acres of common lands into private \softline
ownership, it always offered compensation to the those who were dispossessed of vested rights in \softline
the common lands.{}{\plain \fs24 \super 59{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 59}{}{\plain \fs24   }{\plain \fs24 \i See, e.g.}{\plain \fs24 , Frank A. Sharman, }{\plain \fs24 \i An Introduction to the Enclosure Acts}{\plain \fs24 , 10 }{\plain \fs24 \scaps J. Legal Hist. \softline
}{\plain \fs24 45, 47-48 (1989); Robert C. Ellickson, }{\plain \fs24 \i Property in Land}{\plain \fs24 , 102 Yale L.J. 1315, 1392 (1993). The \softline
level of compensation was highly variable.  }{\plain \fs24 \scaps G.E. Mingay, Parliamentary Enclosure in \softline
England: An Introduction to its Causes, Incidence and Impact 1750-1850 }{\plain \fs24 126-32 (1997). \softline
Moreover, the enclosure acts typically did not offer compensation to tenants and laborers who \softline
relied on the commons for their livelihood, but did not possess vested rights in the common \softline
lands.  As G.E. Mingay has written, {\u8220\'93}[i]t was an age of high respect for property, and usually a \softline
strict line was drawn between those who could legitimately prove a common right and those who \softline
could not.  }{\plain \fs24 \i Id. }{\plain \fs24 at 129.  }{\plain \fs24 \i See also }{\plain \fs24 W.A. Armstrong, }{\plain \fs24 \i Labour I: Rural Population Growth, Systems of \softline
Employment, and Incomes}{\plain \fs24 , }{\plain \fs24 \i in }{\plain \fs24 6}{\plain \fs24 \scaps  The Agrarian History of England and Wales 1750-1850}{\plain \fs24 , \softline
at 641, 721-28 (G.E. Mingay ed., Joan Thirsk gen. ed., 1989).  Hence, E.P. Thompsons reference \softline
to the enclosure movement as {\u8220\'93}a plain enough case of class robbery.{\u8221\'94}  }{\plain \fs24 \scaps E.P. Thompson, The \softline
Making of the English Working Class }{\plain \fs24 218 (1963).  }{\plain \fs24 \i See also}{\plain \fs24  }{\plain \fs24 \scaps E.P. Thompson, Whigs and \softline
Hunters: The Origin of the Black Act}{\plain \fs24  (1975).  Not all enclosures were accomplished \softline
through Parliamentary Acts; many were accomplished through private agreements.  }}}
}{\plain \fs24   In his }{\plain \fs24 \i Commentaries on the Laws of England }{\plain \fs24 (1765-1769), William \softline
Blackstone wrote: \par
}{\plain \fs24 \par
}\pard \fs24\li720\ri720\sl480\slmult1 
{\plain \fs24 the legislature alone can, and indeed frequently does, interpose and compel the \softline
individual to acquiesce. But how does it interpose and compel?  Not by absolutely \softline
stripping the subject of his property in an arbitrary manner; but by giving him a \softline
full indemnification and equivalent for the injury thereby sustained. . . .  All the \softline
legislature does is to oblige the owner to alienate his possessions for a reasonable \softline
price; and even this is an exertion of power, which the legislature indulges with \softline
caution, and which nothing but the legislature can perform.{}{\plain \fs24 \super 60{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 60}{}{\plain \fs24   }{\plain \fs24 \scaps Blackstone, }{\plain \fs24 \i supra}{\plain \fs24  note 40, at }{\plain \fs24 135.}}}
}{\plain \fs24 \par
}\pard \fs24\sl480\slmult1 
{\plain \fs24 \par
}{\plain \fs24 Blackstone misinterprets Parliament{\u8217\'92}s eminent domain power as merely an authority to force \softline
sales.  Parliament could, in Blackstone{\u8217\'92}s time and still today, choose to take property rights \softline
without paying any compensation.  More importantly, however, the quoted passage from \softline
Blackstone indicates just how rare uncompensated takings were in practice.\par
}{\plain \fs24 \tab Eventually, the convention whereby Parliament would pay compensation for outright \softline
takings of land and other private property evolved into a common law }{\plain \fs24 \i presumption }{\plain \fs24 favoring (but \softline
not requiring) compensation.  That common law presumption persists to this day.  In the 1960 \softline
case of }{\plain \fs24 \i Belfast Corporation v. O.D. Cars Ltd.}{\plain \fs24 ,{}{\plain \fs24 \super 61{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 61}{}{\plain \fs24   [1960] NI 60 (14 Dec. 1959).}}}
}{\plain \fs24  Viscount Simonds expressed the common law \softline
rule as follows: {\u8220\'93}[i]t is, no doubt, the law that the intention to take away property without \softline
compensation is not to be imputed to the legislature unless it is expressed in unequivocal \softline
terms.{\u8221\'94}{}{\plain \fs24 \super 62{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 62}{}{\plain \fs24   }{\plain \fs24 \i See also}{\plain \fs24  }{\plain \fs24 \i Attorney-General v. De Keyser{\u8217\'92}s Royal Hotel Ltd.}{\plain \fs24 ,  }{\plain \fs24 [1920] A.C. 508 (H.L.) at \softline
542. ({\u8220\'93}unless the words of the statute clearly so demand, a statute is not to be construed so as to \softline
take away the property of a subject without compensation.{\u8221\'94}).}}}
}{\plain \fs24   It is important to note, however, that the evolution of the compensation }{\plain \fs24 \i convention }{\plain \fs24 into \softline
a common law }{\plain \fs24 \i presumption }{\plain \fs24 did not prefigure any judicial assertion of authority over \softline
Parliamentary takings.  Viscount Simonds went on to write in }{\plain \fs24 \i Belfast Corporation }{\plain \fs24 that {\u8220\'93}[m]atters \softline
of policy which are determined by the Government and carried out in detail by the aid of an \softline
experienced administrative staff cannot be confided to the judiciary.{\u8221\'94}{}{\plain \fs24 \super 63{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 63}{}{\plain \fs24   [1960] NI 60 (14 Dec. 1959).}}}
}{\plain \fs24   The judiciary will not \softline
impute Parliamentary intent to deny compensation, unless such intent is plainly manifest in the \softline
statute, but neither will the courts deny or overrule Parliament{\u8217\'92}s expressed intent.  \par
}{\plain \fs24 \par
}{\plain \fs24 \tab }{\plain \fs24 \i No Compensation for {\u8220\'93}Regulatory Takings{\u8221\'94} in the UK }{\plain \fs24 \par
}{\plain \fs24 \par
}{\plain \fs24 \tab Prior to the 20th century at least, there was little fear that Parliament would take property \softline
or {\u8220\'93}go too far{\u8221\'94} in regulating it without compensation because {\u8220\'93}property interests were well-represented within its ranks.{\u8221\'94}{}{\plain \fs24 \super 64{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 64}{}{\plain \fs24   Harrington, }{\plain \fs24 \i supra }{\plain \fs24 note 42, at 1265.}}}
}{\plain \fs24   However, during the 20th century the representation and power \softline
of property interests in Parliament declined, particularly with the waning of the House of Lords {\u8211\'96} \softline
as Beverley J. Pooley has written, that {\u8220\'93}body which lives under the constant threat of extinction \softline
cannot exert great political pressure.{\u8221\'94}{}{\plain \fs24 \super 65{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 65}{}{\plain \fs24   Poole, }{\plain \fs24 \i supra}{\plain \fs24  note 36, at 29 n. 47.}}}
}{\plain \fs24   There is no evidence, however, that uncompensated \softline
expropriations (government takings of title) increased during the 20th century.  The traditional \softline
convention concerning compensation for expropriations remains in full effect.  On the other \softline
hand, the extent of government }{\plain \fs24 \i regulation }{\plain \fs24 of private property has increased dramatically since \softline
the middle of the 19th century. \par
}{\plain \fs24 \tab Unlike in the United States, increased property regulation in the United Kingdom has not \softline
yet led to the introduction of new constitutional and legal institutions, such as regulatory \softline
}{\plain \fs24 takings.{}{\plain \fs24 \super 66{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 66}{}{\plain \fs24   }{\plain \fs24 \i But see}{\plain \fs24  }{\plain \fs24 \i Belfast Corporation v. O.D. Cars Ltd.}{\plain \fs24 , [1960] NI 60 (14 Dec. 1959) (Viscount \softline
Simonds: {\u8220\'93}The day may come when it will be necessary to consider the relevance to the \softline
constitution of Northern Ireland of the observation of Holmes J. in [Pennsylvania Coal]: {\u8216\'91}The \softline
general rule at least is, that, while {\u8216\'91}property may be regulated to a certain extent, if regulation \softline
goes too {\u8216\'91}far it will be recognized as a taking.{\u8217\'92}  If the question is one of degree, I am clearly of \softline
the opinion that the day did not arrive with section 10(2) of the Act of 1931.{\u8221\'94}).  If that day ever \softline
does arrive, it would not only change the law in Britain, but the legal system as a whole.}}}
}{\plain \fs24   Instead, the UK continues to rely on its historical conventions, including the \softline
convention that no compensation is required or presumed when the government merely regulates 
private property (rather than taking title to it).  Lord Radcliffe explained this convention in the \softline
case of }{\plain \fs24 \i Belfast Corporation v. O.D. Cars Ltd.}{\plain \fs24 :{}{\plain \fs24 \super 67{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 67}{}{\plain \fs24  [1960] NI 60 (14 Dec. 1959).}}}
}{\plain \fs24  \par
}{\plain \fs24 \par
}\pard \fs24\li720\ri720\sl480\slmult1 
{\plain \fs24 Side by side with this [presumption that compensation will be paid for outright \softline
takings of private property], and developing with increasing range and authority \softline
during the second half of the nineteenth century came the great movement for the \softline
regulation of life in cities and towns in the interests of public health and amenity.  \softline
It is not an adequate description of the powers involved, so far at any rate as the \softline
United Kingdom is concerned, to speak of them as {\u8220\'93}police powers.{\u8221\'94}  They went \softline
far beyond that. . . .  Achieved by one means or the other, there is no doubt at all \softline
that the effect of them was to impose obligations and restrictions upon the owner \softline
of town land which impaired his right of development, prohibited or restricted his \softline
rights of user and, in some cases, imposed monetary changes upon him or \softline
compelled him to expend money on altering his property.  Generally speaking, \softline
though not without exception, these obligations and restrictions were treated as \softline
not requiring compensation, though, of course, in a sense they expropriated \softline
certain rights of property.\par
}\pard \fs24\li720\ri720\sl480\slmult1 
{\plain \fs24 A perusal of the Public Health Act, 1875, will be sufficient to make the \softline
point.  It shows how extensive interference could be, even at that date.  Only in a \softline
few special cases is compensation provided for the consequence of interference.  \softline
No one, so far as I know, spoke of this as a {\u8220\'93}taking of property{\u8221\'94} or treated the 
general principle of {\u8220\'93}no taking without compensation{\u8221\'94} as applicable to the case. . . \softline
.  What is important, I think, is to recognize that though interference with rights of \softline
development and user had come to be a recognized element of the regulation and \softline
planning of towns in the interest of public health and amenity, the consequent \softline
control, impairment or diminution of those rights was not treated as a {\u8220\'93}taking{\u8221\'94} of \softline
property nor, when compensation was provided, was it provided on the basis that \softline
property or property rights had been {\u8220\'93}taken,{\u8221\'94} but on the basis that property, itself \softline
retained, had been injuriously affected.\par
}\pard \fs24\sl480\slmult1 
{\plain \fs24 \par
}{\plain \fs24 \tab As Parliament can choose to take title to private property without paying compensation, \softline
so it can regulate private property without paying compensation.  The difference is that, when \softline
Parliament actually }{\plain \fs24 \i takes title}{\plain \fs24 , it is presumed to intend to pay compensation, unless the statute \softline
expressly denies compensation.  Property }{\plain \fs24 \i regulation }{\plain \fs24 in the UK carries no such presumption.  To \softline
the contrary, there appears to be a presumption that parliamentary regulations of private property \softline
are not compensable unless Parliament expressly awards compensation.  And as Lord Radcliffe \softline
points out in }{\plain \fs24 \i Belfast Corporation}{\plain \fs24 , since the middle of the 19th century, Parliament increasingly \softline
has regulated private property without compensation.  \par
}{\plain \fs24 \tab During the 20th century, the largest regulatory impositions on private property in the UK \softline
occurred as a result of {\u8220\'93}town and country planning.{\u8221\'94}  First instituted in 1909, the British planning \softline
system is far more extensive than anything experienced under comprehensive zoning in the US.  \softline
In the 1947 Town and Country Planning Act, Parliament effectively nationalized all land 
development rights,{}{\plain \fs24 \super 68{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 68}{}{\plain \fs24   }{\plain \fs24 \i See}{\plain \fs24  }{\plain \fs24 \scaps J.B. Cullingworth, Town and Country Planning in England and Wales \softline
150 (1964).  }{\plain \fs24 Some authors distinguish between nationalization of {\u8220\'93}rights{\u8221\'94} and nationalization of \softline
{\u8220\'93}title.{\u8221\'94}  }{\plain \fs24 Nationalization of title gives rise to compensation pursuant to the traditional \softline
compensation convention, but nationalization of rights does not.  }{\plain \fs24 \i See }{\plain \fs24 Malcolm Grant, \softline
}{\plain \fs24 \i Compensation and Betterment}{\plain \fs24 , }{\plain \fs24 \i in}{\plain \fs24  }{\plain \fs24 \scaps British Planning: 50 Years of Urban and Regional \softline
Policy}{\plain \fs24  62 (B. Cullingworth ed., 1999) ({\u8220\'93}there is in Britain no compensation for the loss of \softline
development rights, only for the physical taking of land (i.e. for the acquisition of title){\u8221\'94}).  }}}
}{\plain \fs24  so that the government could completely control the future development of \softline
the country.  The Act prohibited development of privately owned lands except as permitted by \softline
local government planning agencies, but provided only limited compensation for landowners \softline
whose development rights were taken or significantly reduced.{}{\plain \fs24 \super 69{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 69}{}{\plain \fs24   }{\plain \fs24 \scaps Grant, }{\plain \fs24 \i supra}{\plain \fs24  note 41, at }{\plain \fs24 23.}}}
}{\plain \fs24   As Malcolm Grant has \softline
explained: \par
}{\plain \fs24 \par
}\pard \fs24\li720\ri720\sl480\slmult1 
{\plain \fs24 The Act imposed first a general prohibition against any development without \softline
permission. . . .  Next the Act adopted the general principle that no compensation \softline
should have to be paid if planning permission were refused, except in certain \softline
limited cases.  Instead, landowners were left with a claim against a global sum of \softline
{\u163\'a3}300 million in respect of any loss of development value caused by the Act.  It \softline
was a limited scheme, and its purpose was more to inject confidence into the \softline
market by meeting hardship cases than to provide an objectively measured level of \softline
compensation for loss of development rights.  Admitted claims for loss were met \softline
at the rate of 16 shillings in the pound (80 pence) prior to the winding up of the \softline
fund in 1953, and the government had secured its objective: the nationalization of 
development rights in land.{}{\plain \fs24 \super 70{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 70}{}{\plain \fs24   }{\plain \fs24 \i Id.}{\plain \fs24  at 63.}}}
}{\plain \fs24 \par
}\pard \fs24\sl480\slmult1 
{\plain \fs24 \par
}{\plain \fs24 As Grant notes, Parliament provided very limited exceptions to no-compensation rule, for \softline
instance in cases where denial of planning permission dashes reasonable and legitimate \softline
development expectations (}{\plain \fs24 \i e.g., }{\plain \fs24 to increase the size of an existing building{\u8217\'92}s by 10 percent).{}{\plain \fs24 \super 71{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 71}{}{\plain \fs24   }{\plain \fs24 Parliament repealed this exception in the 1991 Town and Country Act.  }{\plain \fs24 \i See id.}{\plain \fs24  at 63, \softline
n.3.}}}
}{\plain \fs24   In \softline
addition, the 1947 Act allowed landowners to force compulsory purchase by the government \softline
(akin to the American rule of inverse condemnation), if the lack of development rights left their \softline
land without any {\u8220\'93}reasonably beneficial use.{\u8221\'94}{}{\plain \fs24 \super 72{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 72}{}{\plain \fs24   }{\plain \fs24 \i Id.}}}
}{\plain \fs24   Landowners could also receive compensation if \softline
planning authorities ordered an existing use of land discontinued or reneged on a previously \softline
granted planning permission.{}{\plain \fs24 \super 73{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 73}{}{\plain \fs24 }{\plain \fs24 \scaps   Grant}{\plain \fs24 , }{\plain \fs24 \i supra}{\plain \fs24  note 68, at 454-55.}}}
}{\plain \fs24   Even where Parliament provided for compensation, however, the \softline
amount of compensation was based only on existing uses, never on potential use following \softline
development.{}{\plain \fs24 \super 74{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 74}{}{\plain \fs24   There is, however, an exception, allowing payment of an }{\plain \fs24 \i ex gratia}{\plain \fs24  supplement, when \softline
necessary to avoid undue hardship.  }{\plain \fs24 \i See}{\plain \fs24  }{\plain \fs24 \scaps Cullingworth}{\plain \fs24 , }{\plain \fs24 \i supra}{\plain \fs24  note 68, at 157.}}}
}{\plain \fs24   \par
}{\plain \fs24 \tab Generally speaking, the 1947 Town and Country Planning Act took away landowners{\u8217\'92} \softline
substantive legal rights to develop land and replaced them with a small set of {\u8220\'93}procedural rights: \softline
principally the right to have a planning application determined in accordance with the \softline
development plan and other material considerations, and the right to appeal to the Secretary of 
State against a local authority{\u8217\'92}s refusal of permission or conditions imposed by them.{\u8221\'94}{}{\plain \fs24 \super 75{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 75}{}{\plain \fs24   }{\plain \fs24 \i Id.}}}
}{\plain \fs24   These \softline
procedural rights created a limited role for the courts in town and country planning to ensure that \softline
local governments did not exceed the authority Parliament gave them under the Act.  For \softline
example, in the case of }{\plain \fs24 \i Pyx Granite v. Minister of Housing and Local Government}{\plain \fs24 ,{}{\plain \fs24 \super 76{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 76}{}{\plain \fs24  [1958] 1 QB 554.}}}
}{\plain \fs24  the court \softline
ruled that even though the 1947 Act expressly authorized local authorities to impose {\u8220\'93}such \softline
conditions as they think fit,{\u8221\'94} any conditions must: (1) reasonably and fairly relate to the \softline
development being permitted; (2) have a planning purpose; and (3) not be manifestly \softline
unreasonable.  Still, the courts have no authority, independent of the statute, to require \softline
compensation for a denial of planning permission or even to require additional procedural \softline
safeguards to ensure greater fairness in the planning process .{}{\plain \fs24 \super 77{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 77}{}{\plain \fs24   Whether that will remain the case, now that the EU{\u8217\'92}s Human Rights Act of 1998 has \softline
taken effect in Britain, remains to be seen.  }{\plain \fs24 \i See}{\plain \fs24  Michael Purdue, }{\plain \fs24 \i The Changing Role of the \softline
Courts in Planning}{\plain \fs24 , }{\plain \fs24 \i in }{\plain \fs24 \scaps British Planning: 50 Years of Urban and Regional Policy}{\plain \fs24  166 (B. \softline
Cullingworth ed., 1999).  So far, at least, there is no evidence that the Human Rights Act has \softline
significantly altered relations between Parliament and the courts.}}}
}{\plain \fs24   As Malcolm Grant has written, \softline
{\u8220\'93}the tradition of judicial non-intervention has remained, and the courts have remained largely \softline
unmoved by pleas for greater openness and more visible fair play in decision making.  Change \softline
has had to come instead through political and legislative action.{\u8221\'94}{}{\plain \fs24 \super 78{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 78}{}{\plain \fs24 }{\plain \fs24 \scaps   Grant}{\plain \fs24 , }{\plain \fs24 \i supra}{\plain \fs24  note 41, at 560.}}}
}{\plain \fs24 \par
}{\plain \fs24 \tab The UK{\u8217\'92}s 1947 Town and Country Planning Act might well strike the American eye as \softline
radical, but it is useful to bear in mind the social and historical contexts.  The United Kingdom is \softline
a geographically small and crowded country with a long history of public interest in private land 
uses.  As Neil Alison Roberts has written:\par
}{\plain \fs24 \par
}\pard \fs24\li720\ri720\sl480\slmult1 
{\plain \fs24 Land has a different character where you have 56 million people in an area less \softline
than the size of Wisconsin and where the {\u8216\'91}frontier{\u8217\'92}, if it existed at all, was closed \softline
in the time of William the Conqueror.  In a nation where feudalism originally \softline
presupposed a {\u8216\'91}public{\u8217\'92} character to private use of land there has always been a \softline
realisation that the allocation of this particular unique resource has far-ranging \softline
effects.  In one sense the whole history of the common law of property in England, \softline
whether it be that horrible morass known as future interests, or the comparably \softline
more recent innovations in covenants running with the land and actions for \softline
nuisance, can be seen as a legal recognition of the social character of this \softline
particular resource.  This development has accented the need for special legal \softline
apparatus to deal with both land{\u8217\'92}s use }{\plain \fs24 \i vis-{\f4 \'42}-vis}{\plain \fs24  the interests of neighbours and its \softline
use over time.{}{\plain \fs24 \super 79{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 79}{}{\plain \fs24   }{\plain \fs24 \scaps Neil Alison Roberts, The Reform of Planning Law: A Study of the Legal, \softline
Political and Administrative Reform of the British Land-use Planning System}{\plain \fs24  5 \softline
(1976).}}}
}{\plain \fs24 \par
}\pard \fs24\sl480\slmult1 
{\plain \fs24 \par
}{\plain \fs24 \tab From an historical perspective, the 1947 Act, with its rule of no compensation, was a \softline
{\u8220\'93}product of its time{\u8221\'94}:  World War II had just ended; much of London and other urban areas of \softline
England were in rubble; and {\u8220\'93}[t]he postwar government acted with the knowledge that the \softline
electors would not easily understand or forgive a spate of speculating and profiteering in land. . . 
.{\u8221\'94}{}{\plain \fs24 \super 80{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 80}{}{\plain \fs24   Grant}{\plain \fs24 \i , supra}{\plain \fs24  note 68, at 64.}}}
}{\plain \fs24   That said, the Act continues very much in force today, more than a half-century later, as {\u8220\'93}the \softline
foundation stone of the British planning system.{\u8221\'94}{}{\plain \fs24 \super 81{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 81}{}{\plain \fs24   }{\plain \fs24 \i Id.}}}
}{\plain \fs24   In 2004, virtually no land development \softline
occurs in England without planning permission; and, generally speaking, there is no right to \softline
compensation if planning permission is denied.\par
}{\plain \fs24 \par
}\pard \fs24\qc\sl480\slmult1 
{\plain \fs24 }{\plain \fs24 \b COMPARING US AND UK INSTITUTIONS FOR TAKINGS AND COMPENSATION }{\plain \fs24 \par
}\pard \fs24\sl480\slmult1 
{\plain \fs24 \par
}{\plain \fs24 \tab Even if we were to ignore the historical and cultural differences, how radical, really, is the \softline
UK{\u8217\'92}s planning system?  How much less protection does it offer private landowners than the \softline
constitutionally-based judicial doctrine of regulatory takings in the US?  In 1982, Beverley J. \softline
Pooley wrote that the difference between institutional structures for protecting property rights in \softline
the UK and US was insignificant: \par
}{\plain \fs24 \par
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\pard \fs24\li720\ri720\sl480\slmult1 
{\plain \fs24 {\u8220\'93}[I]t may be thought, as indeed it is often stated, that Parliament is supreme.  \softline
However, this is true in theory only.  In practice, there are many conventions \softline
which the government must observe, and a violation of these conditions would \softline
result at best in political annihilation of the offending government at the next \softline
election and at worst in revolution.  It is submitted that in practice, so far as the \softline
sanction behind governmental restraint is concerned, the same forces are operative \softline
in any situation, whether the government is working under a written constitution 
or not.  A government can only do those things which the people will allow it to \softline
do, and whether the restraints are judicial in their nature, as in the United States, \softline
or political, as in Britain, is, in the final analysis, a matter of small moment.{}{\plain \fs24 \super 82{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 82}{}{\plain \fs24 }{\plain \fs24 \scaps   Pooley}{\plain \fs24 , }{\plain \fs24 \i supra}{\plain \fs24  note 36, at 31.}}}
}{\plain \fs24 \par
}\pard \fs24\sl480\slmult1 
{\plain \fs24 \par
}{\plain \fs24 \tab Judicially enforced doctrines of regulatory takings may provide marginally greater \softline
protection to private property rights than the UK{\u8217\'92}s political system of compensation conventions, \softline
town and country planning, and compulsory purchase acts.{}{\plain \fs24 \super 83{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 83}{}{\plain \fs24   }{\plain \fs24 \i See }{\plain \fs24 David Callies, }{\plain \fs24 \i An American Perspective on UK Planning}{\plain \fs24 , }{\plain \fs24 \i in }{\plain \fs24 \scaps British Planning: \softline
50 Years of Urban and Regional Policy}{\plain \fs24  264 (B. Cullingworth ed., 1999).}}}
}{\plain \fs24   But Professor Pooley implicitly \softline
raises an important issue: whether the marginal difference between property rights protection in \softline
the US and the UK is significant enough to warrant the institution of judicial review, along with \softline
its attendant social costs.  I cannot pretend to offer a complete answer to that question here; it \softline
would require a great deal more empirical investigation {\u8211\'96} into comparative rates and costs of \softline
expropriations, comparative rates and costs of regulations, comparative rates and costs of \softline
compensation awards, and comparative administrative costs {\u8211\'96}  than any researcher has attempted \softline
so far.  \par
}{\plain \fs24 \tab For starters, though, we might consider whether many (or any) cases of regulatory takings \softline
in the US would have been resolved differently under the UK{\u8217\'92}s politically based system of \softline
property rights protection.  }{\plain \fs24 Consider, for example, the }{\plain \fs24 \i Nollan}{\plain \fs24  and }{\plain \fs24 \i Dolan}{\plain \fs24  cases,{}{\plain \fs24 \super 84{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 84}{}{\plain \fs24   }{\plain \fs24 \i Nollan v. California Coastal Commission}{\plain \fs24 , 483 US 825 (1987); }{\plain \fs24 \i Dolan v. City of \softline
Tigard}{\plain \fs24 , 512 US 374 (1994).}}}
}{\plain \fs24  in which the US \softline
Supreme Court established a substantive-due-process-like rule for government-imposed 
conditions on land-use permits: when the government imposes conditions on the grant of a \softline
building or other land-use permit, those conditions must (1) substantially further a legitimate \softline
government purpose, and (2) the burden imposed on the permittee must be roughly proportional \softline
to the public harm stemming from that permittee{\u8217\'92}s development activity.  It is entirely possible \softline
(though far from certain) that these cases would have been resolved just the same under the UK{\u8217\'92}s \softline
1947 Town and Country Planning Act, as interpreted by the court in the }{\plain \fs24 \i Pyx Granite}{\plain \fs24  case.{}{\plain \fs24 \super 85{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 85}{}{\plain \fs24   }{\plain \fs24 \i See supra}{\plain \fs24  note 76 and accompanying text.  For a more detailed treatment of the }{\plain \fs24 \i Dolan}{\plain \fs24  \softline
case might have faired under English planning law, }{\plain \fs24 \i see}{\plain \fs24  Malcolm Grant, }{\plain \fs24 \i If Tigard Were an \softline
English City: Exactions Law in England Following the }{\plain \fs24 \i\ul Tesco}{\plain \fs24 \i  Case}{\plain \fs24 , }{\plain \fs24 \i in }{\plain \fs24 \scaps Takings: Land-Development Conditions and Regulatory Takings after }{\plain \fs24 \i\scaps Dolan }{\plain \fs24 \scaps and }{\plain \fs24 \i\scaps Lucas}{\plain \fs24  332, 350 (D. \softline
Callies ed., 1996) (concluding that (1) British planners could not legally have imposed on Mrs. \softline
Dolan the conditions that the City of Tigard in fact imposed on her development; and (2) local \softline
planners{\u8217\'92} conditions would have been subject to review within the administrative system, \softline
including the possibility of a full public hearing with expert witnesses and legal representation.}}}
}{\plain \fs24   In \softline
that case, the court required that any conditions local governments impose, when they grant \softline
planning permissions, must be manifestly reasonable, and must reasonably relate to the \softline
development being permitted.  What about the }{\plain \fs24 \i Lucas}{\plain \fs24  case?{}{\plain \fs24 \super 86{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 86}{}{\plain \fs24   }{\plain \fs24 \i See supra}{\plain \fs24  notes 13-14 and accompanying text.}}}
}{\plain \fs24   David Lucas almost certainly \softline
would have been entitled, under the 1947 Town and Country Planning Act, to force compulsory \softline
purchase by the government (albeit for existing use value) because denial of planning permission \softline
would have left his land without a {\u8220\'93}reasonably beneficial use.{\u8221\'94}{}{\plain \fs24 \super 87{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 87}{}{\plain \fs24   }{\plain \fs24 \i See supra}{\plain \fs24  note 71 and accompanying text.}}}
}{\plain \fs24   That same Act allows \softline
consideration of landowners{\u8217\'92} reasonable and legitimate {\u8220\'93}development expectations,{\u8221\'94}{}{\plain \fs24 \super 88{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 88}{}{\plain \fs24   }{\plain \fs24 \i See supra }{\plain \fs24 note 70 and accompanying text.}}}
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\pard \fs24\sl480\slmult1 
 which is \softline
analogous to the {\u8220\'93}reasonable, investment-backed expectations{\u8221\'94} test the U.S. Supreme Court 
established in }{\plain \fs24 \i Penn Central Transportation Co. v. City of New York}{\plain \fs24 .{}{\plain \fs24 \super 89{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 89}{}{\plain \fs24   438 U.S. 104 (1978).}}}
}{\plain \fs24   \par
}{\plain \fs24 \tab More generally, in neither the US nor the UK are landowners entitled to compensation for \softline
the effects of the vast majority of regulatory impositions;{}{\plain \fs24 \super 90{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 90}{}{\plain \fs24   In other words, in both the UK and the US, the social costs of private land \softline
development are {\u8220\'93}borne by private land developers rather than public agencies.{\u8221\'94}  David L. \softline
Callies and Malcolm Grant, }{\plain \fs24 \i Paying for Growth and Planning Gain: An Anglo-American \softline
Comparison of Development Conditions, Impact Fees, and Development Agreements}{\plain \fs24 , 23 }{\plain \fs24 \scaps Urb. \softline
Law}{\plain \fs24 . 221, 221 (1991). }}}
}{\plain \fs24  and in both countries, as a practical \softline
matter, landowners always are compensated when the government actually takes title, although \softline
the UK uses a lower measure of compensation (existing use value) than the US ({\u8220\'93}fair market{\u8221\'94} \softline
value).   \par
}{\plain \fs24 \tab This is not to argue that the UK system of positive planning is either very good or better  \softline
than the various American land-use planning systems }{\plain \fs24 \i as a matter of policy}{\plain \fs24 .{}{\plain \fs24 \super 91{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 91}{}{\plain \fs24   In the US, land-use planning is a state and local government regime, and planning \softline
regimes vary substantially from state to state.  }{\plain \fs24 \i See}{\plain \fs24  Callies, }{\plain \fs24 \i supra}{\plain \fs24  note 83.}}}
}{\plain \fs24   I think it likely \softline
(though I lack the empirical data to confidently confirm) that the UK system entails greater social \softline
costs.  General housing shortages, for example, are a regular feature of British life, in part \softline
because of the time and expensive of obtaining planning permissions; {}{\plain \fs24 \super 92{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 92}{}{\plain \fs24   }{\plain \fs24 \i See, e.g.}{\plain \fs24 , }{\plain \fs24 \i Why Aren{\u8217\'92}t Our Builders Building}{\plain \fs24 , Sunday Times, Oct. 19, 2003; }{\plain \fs24 \i Land \softline
Shortage Fueling Housing Shortage}{\plain \fs24 , Guardian, Dec. 10, 2003.  Another factor is the scarcity of \softline
land available for development.  }{\plain \fs24 \i See, e.g.,}{\plain \fs24  }{\plain \fs24 \scaps Roberts}{\plain \fs24 , }{\plain \fs24 \i supra}{\plain \fs24  note 79, at 190 (noting the opposition \softline
to {\u8220\'93}green belts{\u8221\'94} {\u8211\'96} areas around cities which are not to be developed {\u8211\'96} on grounds that those areas \softline
deprived people of inexpensive land for housing).}}}
}{\plain \fs24  but such shortages \softline
virtually never occur in the US.  However, the larger point remains: private property rights are \softline
}{\plain \fs24 \i substantially}{\plain \fs24  (though not perfectly) protected in the UK by the political process, with the judicial 
role limited to enforcement of Parliament{\u8217\'92}s statutes.  They may be marginally less well protected \softline
in that country than in the US, but the value of that marginal difference remains contestable, \softline
especially given the dearth of empirical data.  The difference in outcomes under the UK and US \softline
systems is likely to be minor across the run of cases.\par
}{\plain \fs24 \tab This conclusion is broadly consistent with the way the world seems to view both the \softline
United States and the United Kingdom as veritable models of property rights protection.  Even \softline
{\u8220\'93}Conservative{\u8221\'94} critics, like the Heritage Foundation, give both countries high marks for \softline
protecting private property.  Each year, Heritage publishes an }{\plain \fs24 \i Index of Economic Freedom}{\plain \fs24 , which \softline
ranks countries as a {\u8220\'93}tool for policymakers and investors.{\u8221\'94}{}{\plain \fs24 \super 93{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 93}{}{\plain \fs24   }{\plain \fs24 \scaps Heritage Foundation, 2004 Index of Economic Freedom }{\plain \fs24 1 (2004), available on \softline
the World Wide Web at: http://www.heritage.org/research/features/index/index.html.}}}
}{\plain \fs24   The rankings are based on 50 \softline
variables grouped into the following 10 categories: trade policy; fiscal burden of government; \softline
government intervention in the economy; monetary policy; capital flows and foreign investment; \softline
banking and finance; wages and prices;}{\plain \fs24 \i  property rights}{\plain \fs24 ; regulation; and informal market activity.  \softline
Our present concern is only with the property rights category, on which the United States and the \softline
United Kingdom both consistently receive the highest ranking (1.0).{}{\plain \fs24 \super 94{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 94}{}{\plain \fs24   On the overall index, the UK ranks 7th, three places ahead of the US.  }{\plain \fs24 \i See id}{\plain \fs24 . at 9.}}}
}{\plain \fs24   In its most recent \softline
assessment of property rights protections in the UK, Heritage has little to say: \par
}{\plain \fs24 \par
}\pard \fs24\li720\ri720\sl480\slmult1 
{\plain \fs24 Property rights in the United Kingdom are well-secured.  The Economist \softline
Intelligence Unit reports that {\u8220\'93}contractual agreements are generally secure in the \softline
U.K.  There is no discrimination against foreign companies in court.  The 
judiciary is of high quality when dealing with commercial cases.\par
}\pard \fs24\sl480\slmult1 
{\plain \fs24 \par
}{\plain \fs24 The Heritage Foundation has more to say about, and is more critical of, the treatment of property \softline
rights in the US:\par
}{\plain \fs24 \par
}\pard \fs24\li720\ri720\sl480\slmult1 
{\plain \fs24 The United States does very well in most measures of property rights protection, \softline
including an independent judiciary, a sound commercial code and other laws for \softline
the resolution of property disputes between private parties, and the recognition of \softline
foreign arbitration and court rulings.  However, the concerns outlined in the 2003 \softline
}{\plain \fs24 \i Index}{\plain \fs24  linger.  Uncompensated government expropriations of property remain \softline
highly unlikely, but local governments{\u8217\'92} abuse of eminent domain power with the \softline
seizure of private land (with some compensation) and its transfer to another party \softline
for a non-public or quasi-public use has become more common {\u8211\'96} despite some \softline
successful legal challenges to that practice.  An even more serious problem is that \softline
governments at all levels impose numerous regulatory and land-use controls that \softline
diminish the value and enjoyment of private property.  Examples include \softline
extensive {\u8220\'93}growth controls{\u8221\'94}; unreasonable zoning hurdles; facility permitting \softline
regimes; and far-reaching environmental, wetlands, and habitat restrictions on the \softline
use and development of real estate.  Thus, the protections for private property are \softline
undermined by a vast bureaucracy that has the power to interfere substantially \softline
with many property rights.  The level of protection for property in the United \softline
States may eventually turn on whether the courts place clear limits on bureaucratic 
power or require cost-effective remedies for property owners whose rights have \softline
been effected. . . .{}{\plain \fs24 \super 95{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 95}{}{\plain \fs24   }{\plain \fs24 \i Id.}{\plain \fs24  at 404-05.}}}
}{\plain \fs24 \par
}\pard \fs24\sl480\slmult1 
{\plain \fs24 \par
}{\plain \fs24 Read together, these assessments may say more about the Heritage Foundation and the quality of \softline
its }{\plain \fs24 \i Index}{\plain \fs24 , than they say about the relative protections afforded private property in the UK and the \softline
US; perhaps Heritage researchers need to spend more time in the UK.  Still, it seems significant \softline
that the US and the UK are both perceived to have, relatively speaking, very good institutional \softline
structures for protecting property rights.\par
}{\plain \fs24 \par
}\pard \fs24\qc\sl480\slmult1 
{\plain \fs24 }{\plain \fs24 \b POLITICAL PROTECTION OF PRIVATE PROPERTY IN THE US\par
}\pard \fs24\sl480\slmult1 
{\plain \fs24 \b \par
}{\plain \fs24 \ul0 \tab Throughout this paper, I have presumed that in the US property rights are protected by the \softline
courts, which they are (to a limited and insufficient extent); but they are not protected }{\plain \fs24 \i only}{\plain \fs24  by the \softline
courts.  The federal Congress as well as the state legislatures also protect property rights in very \softline
important, though often underappreciated, ways, as political-economic theory would predict.\par
}{\plain \fs24 \tab According to a 1995 Congressional Research Service Report on Property Rights, long \softline
before there was an established {\u8220\'93}property-rights movement{\u8221\'94} in the US, Congress endeavored to \softline
avoid unsettling the economic expectations of property owners when it enacted regulatory \softline
statutes:\ul0 \tab \ul0 \tab \par
}{\plain \fs24 \par
}{\plain \fs24 \par
}\pard \fs24\li720\ri720\sl480\slmult1 
{\plain \fs24 In dozens of laws, for example, Congress has barred the application of regulatory \softline
restrictions to {\u8220\'93}valid existing rights{\u8221\'94} {\u8211\'96} an effort to leave the settled economic \softline
expectations of property owners undisturbed (and to avert takings liability).  \softline
Illustrations of the grandfathering of valid existing rights include SMCRA [the \softline
Surface Mining Control and Reclamation Act of 1977], the Wilderness Act [of \softline
1964], and the Wild and Scenic Rivers Act [of 1968].  Other times, Congress has \softline
instructed that property owners are entitled to {\u8220\'93}just compensation{\u8221\'94} or \softline
compensation based on some other formula {\u8211\'96} in some cases where the \softline
Constitution likely would demand compensation as well, in some cases not.\par
}\pard \fs24\li720\ri720\sl480\slmult1 
{\plain \fs24 In formal condemnations too, Congress has long been codifying its \softline
concerns about property owners.  Beginning in the 1960s, Congress took to \softline
routinely attaching preconditions and limits on the authority of federal agencies to \softline
condemn land.  The reasoning was plain enough.  Though the Constitution \softline
demands condemnees be paid for land itself, it does not defray attendant costs, \softline
loss of business, and emotional disruption of having one{\u8217\'92}s land taken.  For this \softline
reason, Congress on occasion has prohibited agencies from condemning after a \softline
specified maximum acreage has been taken, or until all reasonable efforts to \softline
acquire land by negotiation have failed, or as long as the land continues to be used \softline
as it was on the date a conservation area was created, or until Congress has \softline
specifically approved the condemnation in question.\par
}\pard \fs24\li720\ri720\sl480\slmult1 
{\plain \fs24 Recognizing that incidental losses to the condemnee can be high, yet are \softline
not constitutionally compensable, Congress in 1970 enacted the Uniform 
Relocation Act (URA).  The Act instructs that federal programs (or federally \softline
assisted state programs) be planned to minimize adverse impacts on persons \softline
displaced by acquisition of their property for such programs.  Further, the Act \softline
mandates compensation for displaced persons for various incidental losses \softline
(moving expenses, reestablishing a displaced business, etc.), recognizing the \softline
constitutionally noncompensability of such items.{}{\plain \fs24 \super 96{\footnote \pard \fs24
{\ul0 \tab }{\plain \fs24 \super 96}{}{\plain \fs24   Robert Meltz, The Property Rights Issue, CRS Report for Congress 95-200, January \softline
20, 1995, available on the World Wide Web at: http://www.ncseonline.org/nle/crsreports/\par
}\pard \fs24\sa240 
{\plain \fs24 economics/econ-11.cfm?&CFID=15288066&CFTOKEN=5479515}}}
}{\plain \fs24  \par
}\pard \fs24\sl480\slmult1 
{\plain \fs24 \par
}{\plain \fs24 \tab In recent years, Congress has considered, but rejected, takings bills that would provide \softline
even more protection for private property rights than under the Supreme Court{\u8217\'92}s current \softline
interpretation of the constitution{\u8217\'92}s takings clause.{}{\plain \fs24 \super 97{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 97}{}{\plain \fs24   }{\plain \fs24 \i See id.}}}
}{\plain \fs24   In 1995, the US House of Representatives \softline
passed H.R. 925, the Private Property Protection Act, which would have compensated \softline
landowners for federal regulatory actions under the Clean Water Act, Endangered Species Act, \softline
and Food Security Act of 1985 that diminished property values by 20 percent or more.{}{\plain \fs24 \super 98{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 98}{}{\plain \fs24   H.R. 925, 104th Cong. (1995).}}}
}{\plain \fs24   That \softline
same year, the Senate Judiciary Committee reported out S. 605, the Omnibus Property Rights Act \softline
of 1995, which would have required compensation for federal regulations that diminished private \softline
property values by 33 percent or more.{}{\plain \fs24 \super 99{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 99}{}{\plain \fs24   S. 605, 104th Cong. (1995).}}}
}{\plain \fs24   However, that bill was never passed, and no final 
legislation was enacted by the 104th Congress.{}{\plain \fs24 \super 100{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 100}{}{\plain \fs24  }{\plain \fs24  }{\plain \fs24   }{\plain \fs24 \i See}{\plain \fs24  }{\plain \fs24 Mark W. Cordes, }{\plain \fs24 \i Leapfrogging the Constitution: The Rise of State Takings \softline
Legislation}{\plain \fs24 , 24 }{\plain \fs24 \scaps Ecol. L.Q.}{\plain \fs24  187, 189 (1997). }}}
}{\plain \fs24 \par
}{\plain \fs24 \tab It is worth wondering whether Congress might have enacted some such statute had the \softline
Supreme Court never interpreted the takings clause to apply to government regulations (in \softline
addition to outright takings of title by the government) in the first place.  Is this a case of \softline
Supreme Court jurisprudence {\u8220\'93}crowding out{\u8221\'94} potentially more effective and efficient (federal and \softline
state) legislative action to protect property rights?{}{\plain \fs24 \super 101{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 101}{}{\plain \fs24   The theory of {\u8220\'93}crowding out{\u8221\'94} originally comes from the public finance literature.  It \softline
refers to a situation in which government borrowing, under an expansionary fiscal policy, }{\plain \fs24 crowds \softline
out more productive private finance by raising interest rates.  The result is reduced economic \softline
growth.  The notion of {\u8220\'93}crowding out{\u8221\'94} has been applied to all manner of issues, including, for \softline
example, the idea that formal legal rules can {\u8220\'93}crowd out{\u8221\'94} potentially more efficient social norms.  \softline
}{\plain \fs24 \i See, e.g.}{\plain \fs24 , Sim B. Sitkin and Nancy L. Roth, }{\plain \fs24 \i Explaining the limited effectiveness of legalistic \softline
{\u8220\'93}remedies{\u8221\'94} for trust/distrust}{\plain \fs24 , 4 }{\plain \fs24 \scaps Organization Science}{\plain \fs24 \i\scaps  }{\plain \fs24 367, 376 (1993)({\u8220\'93}legalistic remedies \softline
can erode the interpersonal foundations of a relationship they are intended to bolster because they \softline
replace reliance on an individual{\u8217\'92}s {\u8216\'91}good will{\u8217\'92} with objective, formal requirements.{\u8221\'94}).}}}
}{\plain \fs24 \ul0 \tab  Such counterfactual questions are virtually \softline
impossible to answer with any confidence.\ul0 \tab \par
}{\plain \fs24 \tab Congress is not the only {\u8220\'93}political{\u8221\'94} branch of government that protects property rights.  In \softline
1988, President Reagan signed Executive Order No. 12,630,{}{\plain \fs24 \super 102{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 102}{}{\plain \fs24   Exec. Order No. 12,630, 53 Fed. Reg. 8859 (1988), }{\plain \fs24 \i reprinted in}{\plain \fs24  5 U.S.C. 601.}}}
}{\plain \fs24  which required federal executive \softline
branch agencies to assess whether their actions or proposed actions constitute takings under \softline
standards promulgated by the Attorney General.  Those standards were supposed to reflect \softline
current Supreme Court jurisprudence under the 5th Amendment{\u8217\'92}s takings clause.{}{\plain \fs24 \super 103{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 103}{}{\plain \fs24   }{\plain \fs24 \i See }{\plain \fs24 Cordes, }{\plain \fs24 \i supra}{\plain \fs24  note 100, at 190 n. 18.}}}
}{\plain \fs24   The \softline
assessment-based approach of President Reagan{\u8217\'92}s executive order influenced a great deal of 
subsequent takings legislation enacted in the states.  \par
}{\plain \fs24 \tab State governments, too, have enacted legislation designed specifically to protect property \softline
rights.  During the 1990s, virtually every state in the US considered {\u8220\'93}takings{\u8221\'94} legislation of one \softline
form or another.  Most bills were rejected; but 21 state legislatures adopted one of two general \softline
types of takings statutes.{}{\plain \fs24 \super 104{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 104}{}{\plain \fs24   Larry Morandi, }{\plain \fs24 \i Evaluating the Effects of State Takings Legislation}{\plain \fs24 , 23 }{\plain \fs24 \scaps State Legis. \softline
Rep.}{\plain \fs24  (Jan. 1998), available on the World Wide Web at: http://www.ncsl.org/programs/esnr/ \softline
slr232.htm}}}
}{\plain \fs24   Many states adopted }{\plain \fs24 \i assessment}{\plain \fs24  statutes, which require the Attorney \softline
General or a relevant state agency to review }{\plain \fs24 proposed regulations for their impacts on property \softline
rights (}{\plain \fs24 \i i.e.}{\plain \fs24 , takings impact assessments).  Only four states, by contrast, have adopted \softline
}{\plain \fs24 \i compensation}{\plain \fs24  statutes, providing property owners with a cause of action against state agencies \softline
for regulatory impositions that reduce the value of their properties.{}{\plain \fs24 \super 105{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 105}{}{\plain \fs24   At least 25 states have }{\plain \fs24 \i considered }{\plain \fs24 compensation bills.  }{\plain \fs24 \i See}{\plain \fs24  Cordes, }{\plain \fs24 \i supra}{\plain \fs24  note 100, at \softline
212.  Some of those compensation bills would have required compensation for any diminution in \softline
value at all.  }{\plain \fs24 \i See id.}{\plain \fs24  at 212 n. 152.}}}
}{\plain \fs24   It is unclear to what extent, \softline
if at all, takings impact assessments would actually protect private property rights.  \softline
Consequently, I will focus here only on the compensation statutes, which seem to offer more \softline
concrete protection.{}{\plain \fs24 \super 106{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 106}{}{\plain \fs24   The discussion below is based extensively on Morandi, }{\plain \fs24 \i supra}{\plain \fs24  note 104, and Cordes, \softline
}{\plain \fs24 \i supra}{\plain \fs24  note 100. }}}
}{\plain \fs24 \ul0 \tab \par
}{\plain \fs24 \tab As of 1998, four states {\u8211\'96} Florida, Louisiana, Mississippi, and Texas {\u8211\'96} provided statutory \softline
compensation for regulatory takings in cases where the regulation reduces land value by a set \softline
amount or more.  Mississippi was the first state to adopt a regulatory takings compensation law 
in 1994 (subsequently amended in 1995).  The Mississippi Agricultural and Forestry Act{}{\plain \fs24 \super 107{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 107}{}{\plain \fs24   Miss. Code Ann. 49-33-1 }{\plain \fs24 \i et seq.}}}
}{\plain \fs24  \softline
authorizes owners of agricultural or forest lands to sue the state or one of its agencies (including \softline
local governments) for regulatory impositions that reduce the value of their lands by more than \softline
40 percent.  The government can avoid a regulatory takings claim by rescinding the offending \softline
regulation, but the government is liable to pay damages while the regulation is in effect.  The Act \softline
exempts from compensability state and local government actions intended to prevent {\u8220\'93}real and \softline
substantial threats to the public health and safety.{\u8221\'94}{}{\plain \fs24 \super 108{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 108}{}{\plain \fs24   Miss. Code Ann. 49-33-7(I).}}}
}{\plain \fs24 \par
}{\plain \fs24 \tab In Louisiana, the 1995 Right to Farm and Forest Act{}{\plain \fs24 \super 109{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 109}{}{\plain \fs24   La. Rev. Stat. Ann. 3:3601 }{\plain \fs24 \i et seq}{\plain \fs24 .}}}
}{\plain \fs24  grants a cause of action to owners \softline
of agricultural or forest lands to sue state or local government agencies for regulatory impositions \softline
that reduce the value of their property by 20 percent or more.  The remedy is full compensation \softline
for the reduced value, or the landowner for force the government to purchase the property at fair \softline
market value.  The government can avoid paying compensation, however, by rescinding the \softline
action resulting in the regulatory taking.  As in Mississippi, the Louisiana takings statute exempts \softline
state and local regulations designed to prevent imminent threats to public health and safety.{}{\plain \fs24 \super 110{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 110}{}{\plain \fs24   La. Rev Stat. Ann. 3:3602(12)(h).}}}
}{\plain \fs24 \par
}{\plain \fs24 \tab Texas{\u8217\'92}s compensation statute, unlike the Mississippi and Louisiana acts, applies not only \softline
to agricultural and forest lands but to all real property.  The 1995 Private Real Property Rights \softline
Preservation Act{}{\plain \fs24 \super 111{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 111}{}{\plain \fs24   Tex. Gov{\u8217\'92}t Code Ann. 2007.001 }{\plain \fs24 \i et seq.}}}
}{\plain \fs24  defines a {\u8220\'93}taking{\u8221\'94} to include any state government action that reduces the 
value of real property by 25 percent or more.  If a court finds such a diminution in value, the \softline
government has the choice of rescinding its action or paying full compensation.  Similar to the \softline
Mississippi and Louisiana statutes, the Texas law exempts actions, taken in good faith, to prevent \softline
{\u8220\'93}a grave and immediate threat to life or property.{\u8221\'94}{}{\plain \fs24 \super 112{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 112}{}{\plain \fs24   Tex. Gov{\u8217\'92}t Code Ann. 2007.003(b)(7).}}}
}{\plain \fs24   In addition, state and local actions in \softline
compliance with federal mandates and actions regulating common-law nuisances are exempted, \softline
as are all municipal (city) regulations. \par
}{\plain \fs24 \tab Florida enacted its takings statute {\u8211\'96} the Bert J. Harris, Jr., Private Property Rights \softline
Protection Act{}{\plain \fs24 \super 113{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 113}{}{\plain \fs24   Fla. Stat. Ann. 70:001 }{\plain \fs24 \i et seq.}}}
}{\plain \fs24  {\u8211\'96} just a few months after Texas enacted its law.  Like the Texas statute, but in \softline
contrast to the Louisiana and Mississippi statutes, the Florida law covers all kinds of real \softline
property.  But unlike all three of those other states, the Florida statute sets no percentage \softline
diminution in property value that landowners must realize before claiming compensation for a \softline
regulatory taking.  Instead, the law applies whenever government action {\u8220\'93}inordinately burdens{\u8221\'94} \softline
the use of private property.{}{\plain \fs24 \super 114{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 114}{}{\plain \fs24   Fla. Stat. Ann. 70.001(2).}}}
}{\plain \fs24   It defines that phrase in terms familiar to anyone who has studied \softline
the Supreme Court{\u8217\'92}s regulatory takings jurisprudence.  A landowner is {\u8220\'93}inordinately burdened{\u8221\'94} if \softline
she is {\u8220\'93}permanently unable to attain the reasonable, investment-backed expectations{\u8221\'94} for the \softline
property, or if she {\u8220\'93}bears permanently a disproportionate share of a burden imposed for the good \softline
of the public, which in fairness should be borne by the public at large.{\u8221\'94}{}{\plain \fs24 \super 115{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 115}{}{\plain \fs24   Fla. Stat. Ann. 70.001(3).  }{\plain \fs24 \i Compare}{\plain \fs24  }{\plain \fs24 \i Penn Central Transportation Co. v. City of New \softline
York}{\plain \fs24 , 438 U.S. 104, 124 (1978) (noting the significance, in takings claims, of {\u8220\'93}the extent to \softline
which the regulation has interfered with distinct investment-backed expectations{\u8221\'94});}{\plain \fs24 \i  Armstrong v. 
United States}{\plain \fs24 , 364 U.S. 40, 49 (1960) (noting that the {\u8220\'93}Fifth Amendment{\u8217\'92}s guarantee . . . [is] \softline
designed to bar Government from forcing some people alone to bear public burdens which, in all \softline
fairness and justice, should be borne by the public as a whole.{\u8221\'94}).}}}
}{\plain \fs24   Although the Florida 
legislature used the words of the Supreme Court in describing its cause of action for regulatory \softline
takings, it expressed its intention that its statute should apply more liberally than the Supreme \softline
Court{\u8217\'92}s takings rules.{}{\plain \fs24 \super 116{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 116}{}{\plain \fs24   }{\plain \fs24 \i See}{\plain \fs24  Fla. Stat. Ann. 70.001(9) (providing that a cause of action might exist for \softline
{\u8220\'93}government actions that may not rise to the level of a taking under the State Constitution or the \softline
United States Constitution.{\u8221\'94}).}}}
}{\plain \fs24   Finally, like the Texas statute, the Florida takings law exempts state \softline
actions to regulate common-law nuisances.\par
}{\plain \fs24 \tab Three aspects of these three state takings laws are striking.  First, they {\u8220\'93}expand the scope \softline
of compensable takings{\u8221\'94} by adopting thresholds for compensation far lower than the US \softline
Supreme Court{\u8217\'92}s has ever employed in its takings jurisprudence.{}{\plain \fs24 \super 117{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 117}{}{\plain \fs24   Cordes}{\plain \fs24 \i , supra}{\plain \fs24  note 100, at 220.}}}
}{\plain \fs24   Second, as of 1998, not a \softline
single case had been filed under any one of these statutes, and no compensation had been paid.{}{\plain \fs24 \super 118{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 118}{}{\plain \fs24   At least 30 cases proceeded to dispute resolution under the Florida statute, however.  \softline
}{\plain \fs24 \i See}{\plain \fs24  Morandi, }{\plain \fs24 \i supra}{\plain \fs24  note 104.}}}
}{\plain \fs24   \softline
It is not clear, however, whether the existence of the statutes led to changes in state regulations to \softline
avoid liability for compensation.  Third, and most importantly for present purposes, they provide \softline
direct evidence that the political process is substantially responsive to the needs of private \softline
property owners.\par
}{\plain \fs24 \par
}{\plain \fs24 \par
}{\plain \fs24 \par
}\pard \fs24\qc\sl480\slmult1 
{\plain \fs24 }{\plain \fs24 \b CONCLUSION}{\plain \fs24 \par
}\pard \fs24\sl480\slmult1 
{\plain \fs24 \par
}{\plain \fs24 \tab In }{\plain \fs24 \i Law{\u8217\'92}s Limits}{\plain \fs24 , Neil Komesar demonstrated that the institution of judicial review is \softline
}{\plain \fs24 \i insufficient}{\plain \fs24  to protect property rights.{}{\plain \fs24 \super 119{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 119}{}{\plain \fs24   }{\plain \fs24 \i See supra }{\plain \fs24 notes 23-24 and accompanying text.}}}
}{\plain \fs24   In }{\plain \fs24 \i Regulatory Takings}{\plain \fs24 , William Fischel argued that the \softline
institution of judicial review is not strictly }{\plain \fs24 \i necessary }{\plain \fs24 for that purpose (at least not at state and \softline
federal levels of representative government).{}{\plain \fs24 \super 120{\footnote \pard \fs24\sa240 
{\ul0 \tab }{\plain \fs24 \super 120}{}{\plain \fs24   }{\plain \fs24 \i See supra}{\plain \fs24  notes 16-20 and accompanying text.}}}
}{\plain \fs24   The evidence (limited though it is) and analysis \softline
in this paper support William Fischel{\u8217\'92}s conclusion, and provides reason for property owners to be \softline
sanguine in spite of Komesar{\u8217\'92}s conclusion.  \par
}{\plain \fs24 \tab Even if judicial review is neither necessary nor sufficient for protecting property rights, \softline
that does not mean it lacks any value for protecting private property. }{\plain \fs24  Political protection of \softline
property rights, while necessary, may be deeme