Disentangling Deregulatory Takings

Abstract

This Article focuses on the protections for infrastructure investors provided by the United States Constitution's Takings Clause and on the wisdom of incorporating such protections into the constitutions of other nation states. The Takings Clause is an example of a state-established background norm that limits the government's ability to undermine the profitability of private property. In the United States, this norm is an implicit term in every contract and provides a kind of guarantee against certain types of state actions. The state is required to pay compensation when it "takes" property for public use.