Academic journal article Duke Journal of Comparative & International Law

Takings for Granted: The Convergence and Non-Covergence of Property Law in the People's Republic of China and the United States

Academic journal article Duke Journal of Comparative & International Law

Takings for Granted: The Convergence and Non-Covergence of Property Law in the People's Republic of China and the United States

Article excerpt

"My own view is that the leftist voices that have emerged are not going to disappear because we have a property law."

INTRODUCTION

Of the myriad of new laws and regulations promulgated by the National People's Congress of the People's Republic of China (" China") in March 2007, one captured the watchful eye of Western media sources: China's new property law ("Property Law"). (2) One report described the law as "an important step away from Communist collective ownership and towards a market economy" that will "undoubtedly increase protection for home owners and prevent land seizures." (3) Time Magazine was similarly optimistic, emphasizing that "reforming the old socialist system is exactly the point of the law, individual property rights being a core tenet of a functioning capitalist economy." (4) As these examples illustrate, Western news coverage has essentially depicted the law as representative of a major convergence of Chinese property law with the standards of laws embraced by freemarket economies like the United States.

Of course, given the complexity of property laws, vast differences remain between the property laws of many Western free-market states, let alone between the property laws of China and those of the countries commonly associated with the Western legal tradition. There is one area in particular, however, in which convergence is apparent between Chinese and U.S. property law: the law of takings.

While the United States and China have reached similar solutions to takings law questions, close study of the evolution of this law in each country suggests that these solutions, while startlingly similar, are based on different ideological principles and address radically different problems. This note proceeds to examine how and to what extent U.S. and Chinese laws have converged in these areas. Part I sets forth a basic overview of the roots of the law of takings in the United States and China. Part II examines two recent cases involving challenges to government takings in the United States and China to illustrate that the legal solutions to takings law questions have converged in both jurisdictions. Finally, Part III considers the institutional, economic, and social forces that have driven this evolution in both systems.

Ultimately, this note concludes that the convergence upon similar standards and solutions in takings law is a deceptive unity. If anything, close study of this legal evolution demonstrates that, while the United States and China have adopted similar solutions and are now faced with common problems and questions, this practical policy convergence has not been accompanied by a convergence of ideologies or purpose. As such, observers would be wise to look beyond the common language currently embraced by both jurisdictions and more closely examine the ideological drivers of the legal evolution to predict how property law in both jurisdictions is likely to evolve in the future.

I. U.S. TAKINGS LAW & TAKINGS LAW WITH CHINESE CHARACTERISTICS

While the convergence of property law in China and the United States may be noted in several areas, the most striking example involves takings law, or the law that governs when local, state, or federal governments are allowed to take private property. In the United States, takings law is rooted in the U.S. Constitution's Fifth Amendment, (5) which states "nor shall private property be taken for public use, without just compensation." (6) This clause allows for public takings of private property under U.S. law while also setting limitations on those takings; any property taken must be for "public use" and accompanied by "just compensation"--terms that have guided takings law and have been the source of challenges to it since the Amendment's passage] With amendments to the Chinese Constitution in 2004 and the recent passage of China's new Property Law, China has developed a similar takings law. …

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