The Takings Clause as a Comparative Right
Brigham Young University - J. Reuben Clark Law School
July, 12 2008
Southern California Law Review, Vol. 76, No. 5, pp. 1003-1066, 2003
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.
Number of Pages in PDF File: 64
Keywords: Takings, Regulatory Takings, Fifth Amendment, Private Property, Equality, Discrimination
Date posted: July 12, 2008