The Hidden Structure of Takings Law

156 Pages Posted: 17 Oct 2013

See all articles by Jeremy R. Paul

Jeremy R. Paul

Northeastern University - School of Law

Date Written: 1991

Abstract

The American legal community remains perplexed and fascinated by the question of which exercises of governmental power should fall prey to the constitutional ban on uncompensated takings of property. Intense interest stems partly from the Supreme Court's professed inability to provide a general solution to the takings problem and partly from the undeniable appeal of contrasting points of view. Students of the takings controversy, however, are perhaps most intrigued by the extent to which it raises fundamental questions of political life. Which resources should be treated as crucial to personal well-being and thus either exempt from any collective redistribution or at least shielded against uncompensated loss? Will a strict compensation requirement encourage shy or self-reliant people to trust communal bonds, or will it prevent the collective control necessary to sound resource management? Are satisfactory general formulations available to decision-makers responsible for identifying those items of value which the government may purchase but not destroy?

This Article is an effort to extend analysis of the takings question beyond criticism of any particular case or even of a particular perspective. Its principal goal is to examine the intellectual structure of the takings problem critically in order to question the current framework of scholarly debate.

Part I describes the hidden structure of the takings controversy. More specifically, Part I describes how private law's purported function of allocating resource claims and public law's professed role of protecting already allocated resources threaten to become indistinguishable; thereby imperiling coherent judicial enforcement of the just compensation clause.

Part II applies the intellectual framework developed in the first part to the doctrines and rationales the Court has employed in takings cases. In particular, the Court's three-factor test for evaluating takings claims is criticized for its reliance on general solutions to the underlying problems of property law that have failed to provide a coherent framework for takings jurisprudence.

Part III attempts to demonstrate how Part I's framework also illuminates the confusion in scholarly approaches to the takings problem. Part III emphasizes the extent to which general solutions have failed to resolve the dilemmas posed by the fifth amendment's just compensation clause.

Suggested Citation

Paul, Jeremy R., The Hidden Structure of Takings Law (1991). Southern California Law Review, Vol. 64, No. 6, pp. 1393-1458, 1991, Northeastern University School of Law Research Paper, Available at SSRN: https://ssrn.com/abstract=2341132

Jeremy R. Paul (Contact Author)

Northeastern University - School of Law ( email )

416 Huntington Avenue
Boston, MA 02115
United States

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