How to distinguish between takings and non compensable regulations

Abstract

Under certain circumstances, the government has the power to modify the rights-set of people, eliminating some of its elements. These governmental actions could be classified into two categories: takings (or expropriations) and non-compensable regulations. The distinction has important consequences. According to the provisions of the Spanish constitution and countless international treaties, just compensation is required to be paid only in the former case. The problem is that none of such provisions defines what a taking is or when a non compensable regulation has been enacted. And courts have not been able to develop a clear and consistent case-law concerning the distinction. In the first part of this paper, the author reviews and criticizes the rules usually applied in order to make the distinction. In the second part, he analyzes from an economic point of view which criteria should be used in that regard.