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Professors' Corner—The Property Paradox: Regulation and a "New" Fundamental Right to Private Property

Richard Epstein, Jan Laitos, and Shelby Green

The regulation of private property is paradoxical. On the one hand, some regulation advances and protects private property, but in other instances, regulation constrains and limits private property rights. Courts considering property owner claims of regulation overreach similarly reflect two widely conflicting views of private property and regulation. Some courts treat property as a non-fundamental right and deferentially apply a rational basis standard that almost always sustains the challenged regulation. As a matter of constitutional history (from John Locke to John Adams), however, private property has been treated as a foundational and explicitly protected right. This webinar explores the dual nature of regulation and the varying conceptions of property rights adopted by courts considering the question of how and to what extent private property may be regulated by the state.