The (ir)relevance of constitutional protection for property rights? Compensation for takings in Canada and the United States

Bibliographic Data

ID10853136
AuthorsCherie Metcalf (corresponding author)
Year2015
Volume65
Issue3
Pages143-185
Publication date2015-07-01
Open AccessNo
TypeARTICLE
VenueUniversity of Toronto Law Journal (JOURNAL)
Journal identifiersISSN: 0042-0220 • E-ISSN: 1710-1174
PublisherUniversity of Toronto Press Inc. (UTPress) (PUBLISHER)
DOI10.3138/utlj.2759
OpenAlexW3125995196
LanguageEN
Citations received2
References cited1

Requiring a government to pay compensation when it takes property is a common means of protecting property rights. In this article, I explore the implications of this right to property having a constitutional form, rather than a statutory or common law form, by examining the comparative law of compensation for takings in Canada and the United States. The analysis is focused on the various functional interests in efficiency and fairness that underlie the protection of property rights and their often competing requirements for rigidity and flexibility. Rather than providing a binding constraint that enhances efficiency, the choice of a constitutional form appears most consistent with the prioritization of distributive concerns around government’s power over property rights. However, the substantive protection of property rights appears to be driven as much by the underlying interests as by the choice of legal form. Variation in the practical content of property rights in Canada and the United States is much more subtle than the difference in constitutional status suggests

Constitutional law · Constraint (computer-aided design · Economics · Government (linguistics · Just compensation · Law and economics · Political science · Private property · Property (philosophy · Property law · Property rights · Statutory law · Land Rights and Reforms · Law · Legal principles and applications · Property Rights and Legal Doctrine

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