Alwin Chan on The Social Good Shortfall: Reframing Takings Doctrine for Housing-Scarce Cities (The Asian Business Lawyer)

"The Social Good Shortfall: Reframing Takings Doctrine for Housing-Scarce Cities"
Alwin Chan
The Asian Business Lawyer, volume 37, pp.161-206
Published in May 2026

Abstract: This article argues that takings doctrine in housing-scarce cities should be reoriented around a “social good shortfall” standard. In Hong Kong and other dense urban settings, acute housing shortages coexist with fragmented ownership, underused land, and redevelopment regimes that either defer too readily to economic development or fail to generate meaningful housing supply. Existing formulations of public use, public purpose, and public interest are too indeterminate to discipline redevelopment, yet too narrow to justify the land assembly needed to address scarcity. The article proposes that compulsory acquisition should be justified only where the current or reasonably foreseeable use of land falls materially short of a feasible alternative in delivering socially important outcomes under conditions of scarcity. Grounded in a modernized reading of Locke’s spoilage proviso, the article also develops a framework of “propriety in the taking”: a substantial evidentiary basis for acquisition, compensation exceeding bare market value while respecting autonomy, and a decision-making process insulated from capture. It further argues that takings should ordinarily proceed through private-to-private redevelopment subject to independent expert review and judicial scrutiny. Comparative analysis of Hong Kong, the United States, and Seoul shows both the limits of permissive redevelopment and the promise, and trade-offs, of mandatory social housing requirements.

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