How Far is Too Far? (And How Do We Decide?): The Inconsistencies and Contradictions in United States Supreme Court Takings Jurisprudence.
Perkins, Lucy Forbes.
2011
- During the life and progress of a community and its debate surrounding the best allotment of land for public uses, conflicts are inevitable and concessions must be made on the part of individuals, despite the country's longstanding respect for private property rights aptly expressed in a statement borrowed from English law that every "man's house is his castle." The Constitution acknowledges this ... read moreright to property in the "takings clause" of the Fifth Amendment, placing a limit on the burden that a single landowner may carry for the benefit of the public. The Supreme Court, however, has failed to provide a precise legal definition of a "taking" and to establish the limits of government regulation, issuing instead vague and often contradictory decisions over the last 100 years. This thesis approaches takings cases with two aims: primarily, to describe the history of the Court's handling of regulatory takings cases, following the evolution of its test-based approach, to explain its takings doctrine to the extent possible. Concurrent with this effort is the highlighting of the main inconsistencies between landmark rulings. As a second goal, I tackle finding an explanation for those inconsistences, looking beyond legal analysis to introduce extralegal factors, particularly the Court's consideration of a ruling's future impact, as an influence during deliberations. While the Court's Constitutionally prescribed duty is to examine nothing other than the precise legal question before it, there is widespread acceptance that outside influence affects Court decisions. I include impact consideration in these extralegal factors, particularly in the context of takings cases, and show the role that reference to impact plays in those decisions, both in speculating on the ruling's practical execution for the parties involved, and in anticipating the legal impact of the decision on future cases.read less
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