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Takings, litigation, and just compensation

  • Alfredo Esposto
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    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

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    File URL: http://hdl.handle.net/10.1007/BF02299452
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    Article provided by International Atlantic Economic Society in its journal Atlantic Economic Journal.

    Volume (Year): 26 (1998)
    Issue (Month): 4 (December)
    Pages: 397-412

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    Handle: RePEc:kap:atlecj:v:26:y:1998:i:4:p:397-412
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    1. Esposto, Fred G, 1996. " The Political Economy of Taking and Just Compensation," Public Choice, Springer, vol. 89(3-4), pages 267-82, December.
    2. Hermalin, Benjamin E, 1995. "An Economic Analysis of Takings," Journal of Law, Economics and Organization, Oxford University Press, vol. 11(1), pages 64-86, April.
    3. Fischel, William A., 1995. "The offer/ask disparity and just compensation for takings: A constitutional choice perspective," International Review of Law and Economics, Elsevier, vol. 15(2), pages 187-203, June.
    4. Polinsky, A. Mitchell & Rubinfeld, Daniel L., 1988. "The deterrent effects of settlements and trials," International Review of Law and Economics, Elsevier, vol. 8(1), pages 109-116, June.
    5. Munch, Patricia, 1976. "An Economic Analysis of Eminent Domain," Journal of Political Economy, University of Chicago Press, vol. 84(3), pages 473-97, June.
    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 269-93, June.
    7. Wang, Gyu Ho & Kim, Jeong-Yoo & Yi, Jong-Goo, 1994. "Litigation and Pretrial Negotiation under Incomplete Information," Journal of Law, Economics and Organization, Oxford University Press, vol. 10(1), pages 187-200, April.
    8. 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.
    9. Lucian Arye Bebchuk, 1984. "Litigation and Settlement under Imperfect Information," RAND Journal of Economics, The RAND Corporation, vol. 15(3), pages 404-415, Autumn.
    10. Blume, Lawrence & Rubinfeld, Daniel L & Shapiro, Perry, 1984. "The Taking of Land: When Should Compensation Be Paid?," The Quarterly Journal of Economics, MIT Press, vol. 99(1), pages 71-92, February.
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