Retiring "Regulatory Takings"? Why It’s Time to Call It What It Is—Involuntary Regulatory Servitude

Property rights are the cornerstone of liberty. The ability to control what is yours—your land, your home, your business, your labor—is not just a legal construct; it is the fuel of prosperity, the guarantee of autonomy, and the keystone of a free society. And yet, in America today, the language we use to describe how those rights are infringed often fails to convey the gravity of what is happening.

Enter Professor Donald Kochan, a leading legal scholar at the Antonin Scalia Law School and Executive Director of the Law and Economics Center. In a recent conversation with CRF Director Andrew Langer, Professor Kochan put forth a groundbreaking—and long overdue—proposal: retire the term “regulatory takings” and replace it with what he argues is more accurate and morally grounded—involuntary regulatory servitude.

It's not just wordplay. It's a serious reframing of how we think about property rights, government overreach, and the rule of law.

Property Rights: The Root of All Other Rights

Before diving into Professor Kochan’s innovative terminology, we must revisit why property rights matter in the first place.

Property rights are not some secondary civil liberty—they are foundational. As Kochan explains, they are “really the grounding of all of our other rights.” The ability to exclude others, to control use, to derive value from what you own—these are not luxuries. They are the infrastructure of personal freedom and societal progress. Locke understood it. Peruvian political scientist and economist Hernando De Soto proved it. Richard Pipes, one of the architects of President Reagan's Cold War strategy, chronicled how the absence of property rights correlates directly with poverty, instability, and tyranny.

Without property rights, there is no autonomy. Without property rights, there is no incentive to invest, improve, or innovate. Property rights are what transform a free citizen into a productive stakeholder in society.

Regulatory Takings: A Broken Frame?

In the last 50 years, Americans have witnessed the steady encroachment of bureaucratic power into private property. Through zoning laws, environmental mandates, and land use restrictions, government entities can strip property owners of use and value, without paying a dime in compensation.

This is what’s commonly referred to as a “regulatory taking.” It’s a term rooted in legal theory, but one that Kochan argues is conceptually flawed. Why? Because it obfuscates the reality of what’s happening. It suggests a technicality. A byproduct. A mere unfortunate side effect of necessary regulation.

It doesn’t sound like what it really is: a seizure of property rights without consent and compensation.

Involuntary Regulatory Servitude: Calling It What It Is

Kochan's proposed term—involuntary regulatory servitude—cuts through the legalese and lands where it should: on the side of the property owner.

In legal doctrine, a "servitude" is an interest in land that burdens the title, typically giving someone else control or use over it, like an easement. But in private transactions, servitudes are agreed upon. They’re bought, sold, and negotiated.

When the government imposes the equivalent of a servitude—restricting use, freezing development, mandating access—but does so through regulation, unilaterally, and without compensation, that’s not a transaction. That’s coercion. It’s not regulation. It’s a forced service.

It is involuntary servitude, and it violates both the spirit and the letter of the Fifth Amendment.

By adopting this term, Kochan forces us to confront the moral reality: these actions render property owners economic hostages. They are coerced into subsidizing public goals while bearing private costs.

A History of Abuse

The problem of government takings is not new. It’s foundational to our Constitution. The Takings Clause in the Fifth Amendment doesn’t say the government can’t take property. It says it can’t do so without it being for a legitimate public use, that actual due process is accorded to the property owners for them to argue why their property shouldn't be taken, and that just compensation be paid to the property owners.

But over time, courts and regulators have carved out loopholes. Chief among them: distinguishing between “physical” takings (like eminent domain) and “regulatory” takings—cases where the government doesn’t seize the land outright but instead imposes rules that render it unusable or drastically less valuable.

In landmark cases like Penn Central (1978), the Supreme Court muddied the waters further by introducing vague balancing tests and denying compensation in all but the most extreme cases. Even the infamous Kelo v. City of New London (2005), which rubber-stamped the taking of private property for the benefit of a private developer, failed to jolt courts into real reform.

But what Kelo did do was awaken the public. Americans were outraged, and for good reason. As Kochan points out, the law had been moving in that direction for decades. What changed was awareness, fueled by public interest litigation from free-market and limited government non-profit public interest research foundations. These organizations gave ordinary citizens a fighting chance against regulatory overreach.

Why Language Matters

The genius of Kochan’s reframing lies in its ability to shift the center of gravity in the debate. Words like “takings” feel abstract. They signal an unfortunate necessity. But “involuntary regulatory servitude”? That invokes moral clarity. It brings to mind the exploitation that it truly is.

And it’s not without precedent. The Supreme Court itself has ruled in cases like Horne v. USDA (2015) that even intangible or partial property rights—like the right to sell raisins—can be subject to takings. If that’s true, then what is it when a government agency tells you that you can’t build on your land, can’t harvest your timber, or must allow public access to your private roads?

It's not regulation. It's confiscation by another name.

Economic Consequences of Coercion

The effects aren’t just theoretical. When property rights are insecure, the entire economy suffers. Kochan ties this back to Hernando de Soto’s work, particularly in developing countries. Without clear, enforceable property rights, people can’t use land as collateral. They can’t get loans. They don’t invest.

The same principle holds in America.

Consider the tribal lands across the U.S., where legal and bureaucratic confusion about land titles has kept generations in poverty. Or look at Louisiana, where recent lawsuits against oil companies based on retroactive liability for “environmental damage” threaten to upend decades of legal precedent and economic development.

As Kochan warns, if companies believe that today's legal activities might become tomorrow's retroactive liabilities, they won't invest. That doesn't just hurt developers. It hurts workers, communities, and future prosperity.

The Role of the Courts—and Their Limits

Litigation has helped turn the tide. Cases like Knick v. Township of Scott (2019) re-empowered property owners to seek federal remedies for local takings. But as Kochan argues, litigation alone isn’t enough.

The courts are ill-equipped to perform the kind of cost-benefit analysis needed in land use policy. Worse, when courts deny that a taking has occurred—simply because it came through a regulation instead of a bulldozer—they signal to regulators that they can legislate away your property rights, consequence-free.

The Path Forward: Legal and Cultural Change

Kochan doesn’t stop at diagnosis. He offers a vision for reform. First, we need to change the language. “Regulatory takings” should become “involuntary regulatory servitudes” in our legal briefs, academic papers, and policy debates.

Second, we need legislative action to clarify and strengthen property rights protections. State and federal laws should codify the principle that any government action that limits the use, value, or alienability of property must be compensated.

Third, we need public pressure. Public interest law firms, think tanks, and grassroots activists must continue to highlight the injustices of property rights violations. Awareness matters. It changes the political calculus. Kelo proved that.

And finally, we must push back culturally. Property rights are not dirty words. They are civil rights. They empower the individual against the state and the mob. They are essential to both liberty and justice.

Conclusion: Naming the Injustice

Professor Donald Kochan’s idea isn’t just clever legal branding. It’s a much-needed course correction in the way we understand—and fight—government abuse of property rights.

“Involuntary regulatory servitude” is a phrase whose time has come. It captures the coercion, the imbalance, and the injustice inherent in so many land use regulations today. More importantly, it re-centers the conversation around the rights of the individual, rather than the convenience of the state.

At the CPAC Foundation’s Center for Regulatory Freedom, we believe this linguistic shift can help catalyze a broader transformation in public policy, legal interpretation, and civic awareness.

Because when the government tells you what you can’t do with your property, when it commandeers your land for public use without compensation, when it strips you of control and value, without consent—let’s not call that regulation.

Let’s call it what it is: Involuntary regulatory servitude.