Givings

Abraham Bell, Gideon Parchomovsky

Research output: Contribution to journalArticlepeer-review

61 Scopus citations

Abstract

Givings - government acts that enhance property value - are omnipresent. Yet they have received scant scholarly attention and no consistent doctrinal or theoretical treatment. Although givings and takings are mirror images of one another and are of equal practical and theoretical importance, takings have hogged the scholarly limelight. This Article seeks to rectify this disparate treatment and takes the first steps toward a law of givings. The Article divides the universe of givings into three prototypes: physical givings, regulatory givings, and derivative givings. It shows that givings are a formative force in the world of property, and that a comprehensive takings jurisprudence must take account of givings and their relationship to takings. The Article then turns to the task of determining when a giving occurs, and when a "fair charge" - the givings analogue of "just compensation" - should be assessed on the beneficiaries. By extracting some essential features of takings law and combining them with efficiency, fairness, and public choice analysis, the Article proposes four conceptual clusters, each embodying a distinct aspect of a potential givings jurisprudence. The first cluster identifies givings that can be characterized as reverse takings. The second separates singled-out givings from majoritarian givings. The third distinguishes between refusable and nonrefusable givings. The fourth and final differentiates between givings that are directly linked to particular takings and givings that are not. Finally, the Article incorporates policy guidelines from the clusters in a three-step model that identifies, assesses, and charges for givings, thereby suggesting the practicality of a law of givings.

Original languageAmerican English
Pages (from-to)547-617
Number of pages71
JournalYale Law Journal
Volume111
Issue number3
DOIs
StatePublished - Dec 2001
Externally publishedYes

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