This paper explores the rationale of novel regulatory property rights under takings law (compensation for the expropriation of property). It is interested in their hybrid public-private quality. It reiterates the history of how the notion of ‘private’ property has come about, explores the theory of takings and its restructuring of property. Interesting perspectives on mid-nineteenth-century concepts for remuneration shed new light on what exactly has to be compensated for when property rights are regulated to the detriment of the owner. Based on this analysis, three examples of modern regulatory property rights are explored in more detail, emission rights, CSR labels and derivatives. The article submits that the more nuanced older schemes for compensation provide a better model for distinguishing the reasons for compensation and non-compensation, and are better suited for the modern property setting.
The present paper is one part of a double paper which emerged from a one-year fellowship at the University of Constance, Center of Excellence “Kulturelle Grundlagen von Integration”, Institute for Advanced Studies “Kulturwissenschaftliches Kolleg” in 2015. It was first presented at the Workshop “The Core of Property”, in Königswinter (Germany), Oct. 9–10, 2015, organized by Dan Wielsch and Bertram Lomfeld. It is complementary to C. Godt, ‘Regulatory Property Rights’ – A Challenge to Property Theory, in: C. Godt (ed.), Regulatory Property Rights, Leiden: Brill Pub., 2016, pp. 13–43. While the former paper develops a typology of the multifaceted rights labelled “regulatory property rights”, and is more technically oriented towards discussing traditional property principles and novel functions, the present article focuses on the public notion of property. In German, the article is published in a slightly adapted version: C. Godt, “‘Regulative Eigentumsrechte’ und ‘regulatorische Enteignung’ – Wechselwirkungen zwischen moderner Privatrechtstheorie und der Entschädigungsdogmatik”, in: D. Wielsch/B. Lomfeld (eds), Eigentum denken. Aktuelle Eigentumstheorien in den USA und Europa/Thinking Property. Recent Property Theories in the US and Europe, Tübingen: Mohr Siebeck, forthcoming. For the article at hand, I owe my gratitude to my co-fellows in Constance who came from various disciplines like history and sociology for the manifold inspirations which can be traced throughout the footnotes. I am indepted to an anonymous peer reviewer for valuable hints. All errors are mine.
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