“Regulatory Property Rights”: New Insights from Private Property Theory for the Takings Doctrine

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.