320. Abraham Bell and Gideon Parchomovsky, Givings, 04/2001; subsequently published in Yale Law Journal, Vol. 111, No. 3, December 2001, 547-618.
Abstract: Givings - government acts that enhance property value - are omnipresent. Givings and takings are mirror images of one another, and of equal practical and theoretical importance, but the Takings Clause of the Fifth Amendment has enabled takings to dominate scholarly attention. This Article makes the first step toward rectifying this disparate treatment by laying the foundation for a law of givings.
The Article identifies three prototype givings: physical givings, regulatory givings and derivative givings. The Article shows that givings are a formative force in property, and that a comprehensive takings jurisprudence cannot be devised without an attendant understanding of givings and their relationship to takings.
The Article 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 the essential features of takings law, the Article molds the universe of givings into four conceptual clusters. The first cluster is organized around determining when and whether givings can be characterized as reverse takings. The second separates between singled-out givings and majoritarian givings. The third distinguishes between refusable and nonrefusable givings. The fourth differentiates between givings directly linked to particular takings and givings that are not. Finally, the Article offers a three-step model for identifying, assessing, and charging for givings, thereby demonstrating the practical administrability of a law of givings.
The Article argues that charging for givings would reduce interest group politics, enhance the efficiency of government and improve the fairness of the property system.