This Article argues that an infringement of intellectual property rights by a state government constitutes a regulatory taking, requiring compensation to the intellectual property owner. The regulatory takings doctrine is a controversial one. Almost everyone agrees that if a state government physically takes property from its citizens, the government should compensate the owners. Nevertheless, the proposition that state regulation of its citizens' property requires compensation is not as easy to endorse. All regulation affects property in some way, either by reducing its value or by limiting its use. A requirement of compensation could potentially cripple the functioning of state governments. In fact, the strongest endorsement of regulatory takings has come from political conservatives who want to limit all types of state regulation-from environmental controls to income redistribution. As a result, many identified progressives, including this author, have been more cautious about supporting the regulatory takings doctrine, especially in its strongest form.
Toward a Theory of Regulatory Takings for Intellectual Property: The Path Left open After College Savings v. Florida Prepaid,
San Diego L. Rev.
Available at: https://digital.sandiego.edu/sdlr/vol37/iss3/3