Regulatory Takings — Rights or Relations?

30 Pages Posted: 3 Oct 2014

See all articles by Melinda Benson

Melinda Benson

affiliation not provided to SSRN

Date Written: October 1, 2014

Abstract

This Article uses tools from legal geography to investigate the Takings Clause, a provision in the U.S. constitution that prohibits the government from taking private property for public use without providing compensation. This area of law is gaining renewed attention from legal scholars given recent Supreme Court interpretations that evidence heightened doctrinal confusion in what was already a convoluted area of constitutional law. From a geographer’s perspective, the Court’s interpretations perform something more problematic — the challenge associated with employing the concept of “rights” in relation to the state’s capacity to occupy and police space. An examination of the Takings Clause demonstrates the problems associated with employing the concept of “property rights” and suggests that the concept of relations would perhaps be a more appropriate way to conceptualize interactions between cultural expectations, property owners, and the material world.

Keywords: legal geography, socio-legal studies, relationality, performativity, Fifth Amendment Takings Clause

Suggested Citation

Benson, Melinda, Regulatory Takings — Rights or Relations? (October 1, 2014). Available at SSRN: https://ssrn.com/abstract=2504105 or http://dx.doi.org/10.2139/ssrn.2504105

Melinda Benson (Contact Author)

affiliation not provided to SSRN

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