The Takings Clause as a Comparative Right

64 Pages Posted: 12 Jul 2008  

John Fee

Brigham Young University - J. Reuben Clark Law School

Date Written: July, 12 2008

Abstract

The Fifth Amendment Takings Clause, like the Equal Protection Clause, is designed to protect the legal rights of individual citizens relative to others, not to protect the legal rights of individual expectations of wealth or to provide and insurance policy against unreasonable governmental burdens. The proper role of the regulatory takings doctrine is to require compensation in those circumstances where the government legitimately targets one or a few owners to bear a unique legal burden for the benefit of the general community. Only through a comparative theory of takings doctrine can we begin to solve many of the puzzles that appear in the law. This paper provides a defense of a comparative theory of takings law, a discussion of how a comparative theory should work, and shows how a comparative theory serves to explain many of the results of current takings law.

Keywords: Takings, Regulatory Takings, Fifth Amendment, Private Property, Equality, Discrimination

Suggested Citation

Fee, John, The Takings Clause as a Comparative Right (July, 12 2008). Southern California Law Review, Vol. 76, No. 5, pp. 1003-1066, 2003. Available at SSRN: https://ssrn.com/abstract=1159129

John Fee (Contact Author)

Brigham Young University - J. Reuben Clark Law School ( email )

430 JRCB
Brigham Young University
Provo, UT 84602
United States

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