Regular Takings or Regulatory Takings?: Land Expropriation in Rural China

Abstract

This article takes as its starting point the recent spate of unrest in rural China over government takings of rural, agricultural land. Though the popular and scholarly press has paid a great deal of attention to this issue, few analyses have explored in depth the institutional and legal framework surrounding it. This piece first attempts such an exploration and concludes that the underlying issues have as much to do with China's national land use regulatory system as they do with the behavior of local governments that seize privately-farmed land for other uses. In fact, it is more productive to see this as a regulatory takings issue than an eminent domain issue. With that analysis in mind, the article proceeds to explain why commonly-presented proposals for solving the rural takings problem are inadequate and then offers a novel solution based on the regulatory takings analysis: granting individual farmers transferrable, monetizable land development rights that will be separable from the land use rights that are the basis of the current rural land ownership regime.