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Takings, litigation, and just compensation

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  • Alfredo Esposto

Abstract

A constitutional right to just compensation for governmental takings implies a right to a judicial review of the adequacy of the compensation. Thus, a property owner, subjected to a takings action, can threaten to litigate if he considers compensation insufficient. This paper uses a theoretic settlement-litigation analysis to demonstrate how the litigation threat influences the size of the compensation. In addition, it revises the theoretical explanation for earlier empirical findings that certain classes of property owners often receive more than market value for their property. It is also shown that the just compensation mechanism cannot guarantee efficient takings. Extending the basic model to regulatory takings, this paper demonstrates that recent changes in the judicial doctrine of when a regulation has gone too far and demands compensation has strengthened the litigation threat of property owners. It explains why political decisionmakers are moving toward settlements with terms which are increasingly defined by legislation. Copyright International Atlantic Economic Society 1998

Suggested Citation

  • Alfredo Esposto, 1998. "Takings, litigation, and just compensation," Atlantic Economic Journal, Springer;International Atlantic Economic Society, vol. 26(4), pages 397-412, December.
    • Handle: RePEc:kap:atlecj:v:26:y:1998:i:4:p:397-412
    DOI: 10.1007/BF02299452
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    References listed on IDEAS

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    1. Lucian Arye Bebchuk, 1984. "Litigation and Settlement under Imperfect Information," RAND Journal of Economics, The RAND Corporation, vol. 15(3), pages 404-415, Autumn.
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    6. Fischel, William A & Shapiro, Perry, 1988. "Takings, Insurance, and Michelman: Comments on Economic Interpretations of "Just Compensation" Law," The Journal of Legal Studies, University of Chicago Press, vol. 17(2), pages 269-293, June.
    7. Wang, Gyu Ho & Kim, Jeong-Yoo & Yi, Jong-Goo, 1994. "Litigation and Pretrial Negotiation under Incomplete Information," The Journal of Law, Economics, and Organization, Oxford University Press, vol. 10(1), pages 187-200, April.
    8. Esposto, Fred G, 1996. "The Political Economy of Taking and Just Compensation," Public Choice, Springer, vol. 89(3-4), pages 267-282, December.
    9. Lawrence Blume & Daniel L. Rubinfeld & Perry Shapiro, 1984. "The Taking of Land: When Should Compensation Be Paid?," The Quarterly Journal of Economics, President and Fellows of Harvard College, vol. 99(1), pages 71-92.
    10. Daniel McFadden, 1976. "The Revealed Preferences of a Government Bureaucracy: Empirical Evidence," Bell Journal of Economics, The RAND Corporation, vol. 7(1), pages 55-72, Spring.
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