Remedies for Regulatory Takings (Constructive Expropriations), Deprivations, Expropriations or Custodianship in South Africa and the U.S.
Howard Human & Civil Rights Law Review
Oliver Wendell Holmes, writing for the Court in Pennsylvania Coal Co. v. Mahon (1922), started the regulatory takings tradition in the U.S. with his famous line that “if regulation goes too far it will be recognized as a taking” deserving of just compensation. As this paper will show, how far is too far depends on where you are. Under the Fifth Amendment to the U.S. Constitution, regulations do not need to go as far as they once did, and under the law in states like Oregon and Florida, regulations do not need to go very far at all before one is entitled to compensation. Across the ocean in South Africa, the same regulation that went too far in Mahon would not constitute a taking at all under the South African Constitution’s main property provision, Section 25, or at least not an expropriation that required compensation. Under South Africa’s Constitution, it is very difficult for regulations to go too far, and South Africa’s dominant political party, the African National Congress (ANC), has mooted the idea that Section 25 has stood in the way of it going far enough to effect transformation.
Copyright © 2018, Howard University School of Law
Howard University School of Law
Roederer, Christopher J., "Remedies for Regulatory Takings (Constructive Expropriations), Deprivations, Expropriations or Custodianship in South Africa and the U.S." (2017). School of Law Faculty Publications. 41.
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