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41 Urb. Law. 427 (2009)
Regulatory Takings and Free Trade Agreements: Implications for Planners

handle is hein.journals/urban41 and id is 433 raw text is: Regulatory Takings and Free Trade Agreements: Implications for Planners Mildred E. Warner* I. Introduction THE ONGOING DEBATE over the relation between conceptions of private property and the role of the state entered a new chapter in the late twen- tieth century with the onset of the new generation of free trade agree- ments. In a radical departure from United States Constitutional law over the prior two centuries which has held that private property is subject to state control and that takings under eminent domain will receive just compensation, the North American Free Trade Agreement (NAFTA)' asserted an expanded view of private property rights. NAFTA elevated foreign private investors to the level of nation states in their ability to directly negotiate in trade disputes, and expanded the concept of takings to include takings of future profit and market share. This shift reflects a dramatic broadening of the conception of private property and dem- onstrates the importance of the multi-scalar nature of governance in a globalized world.2 What do these shifts mean for planners? How will public concerns with land use control be affected by these expanded private property rights? How will local and state regulations be negotiated in this new multi-scalar governance system that privileges the foreign private in- vestor and the nation state? These questions are of critical concern to planners. This paper reviews the evolution of legal understanding regarding pri- vate property and then outlines the new definitions of private property *Mildred E. Warner is a Professor in the Department of City and Regional Planning at Cornell University, Ithaca, New York. Her research focuses on local government service delivery and privatization issues. 1. North American Free Trade Agreement, U.S.-Can.-Mex., Dec. 17, 1992, 32 I.L.M. 289 [hereinafter NAFTA], available at http://www.sice.oas.org/trade/nafta/naf tatce.asp. 2. See generally Mildred Warner & Jennifer Gerbasi, Rescaling and Reforming the State under NAFTA: Implications for Subnational Authority, 28 INT'L J. URB. & RE- GIONAL RES. 858 (2004); Gordon MacLeod, New Regionalism Reconsidered: Global- ization and the Remaking of Political Economic Space, 25 INT'L J. URB. & REGIONAL RES. 804 (2001); Neil Brenner & Nik Theodore, Preface: From the New Localism to the Spaces of Neoliberalism, ANTIPODE 342-47 (2002).