
Contents
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General Introduction General Introduction
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The Legitimacy of Takings The Legitimacy of Takings
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Kelo and the Fifth Amendment’s Legitimacy Crisis Kelo and the Fifth Amendment’s Legitimacy Crisis
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Purpose of the Government Taking: Economic Redevelopment Purpose of the Government Taking: Economic Redevelopment
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Nature of the Property Subject to Eminent Domain Nature of the Property Subject to Eminent Domain
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Quick-Take Statutes and the Psychology of Procedural Justice Quick-Take Statutes and the Psychology of Procedural Justice
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Singling Out and Inequity Aversion Singling Out and Inequity Aversion
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Framing of Property Entitlements: Thing versus Bundle of Sticks Framing of Property Entitlements: Thing versus Bundle of Sticks
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When Is Compensation Required? When Is Compensation Required?
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Losses versus Gains Losses versus Gains
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Personal Property versus Fungible Property Personal Property versus Fungible Property
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Just Compensation Just Compensation
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The Standard Critique of Market-Value Compensation and a Proposed Solution The Standard Critique of Market-Value Compensation and a Proposed Solution
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Additional Justifications for Above-Market-Value Compensation Additional Justifications for Above-Market-Value Compensation
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How Much beyond Market Value? How Much beyond Market Value?
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Concluding Remarks Concluding Remarks
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Cite
Abstract
This chapter discusses key aspects of takings law from a behavioral perspective and employs psychological insights to critically analyze existing legal rules and theories. The chapter highlights various factors that affect the perceived legitimacy of the taking and its adverse impact on property owners. In addition, the chapter addresses two central topics from a behavioral perspective: (1) When should compensation be paid? and (2) what constitutes just compensation? It shows that current compensation rules unjustifiably distinguish between different types of injuries to property, and that the risk of systematic undercompensation of property owners is more severe than commonly realized. These phenomena may have detrimental effects in terms of both efficiency and fairness.
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