Takings and the Post-Modern Dialectic of Property (original) (raw)
In recent years a debate has been going on both in the narrow confines of legal scholarship and in the press concerning constitutional protection of private property. Newspapers regularly include articles, columns, and editorials about government agencies that have extended their regulatory power over some resource--whether wetlands, landmark buildings, or rental apartments-and many property owners are outraged at what they view as a gross intrusion on their private domain. The intrusion seems all the worse to these property owners and their supporters because the government's action with respect to their things is more than an inconvenient bureaucratic requirement like mandatory recycling. It is rather a substantial usurpation of their ownership rights that is unaccompanied by any compensation. In legal argot, it is a "taking" of property that masquerades as mere "regulation." To make matters worse, American courts, including (or perhaps one should say espec...
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People care about property. In 2005, the United States Supreme Court decided two cases with deep connections to that concern, both brought by property owners challenging the government's power under the Takings Clause to take title to, or significantly affect the value of, their property. Kelo v. City of New London has been seen as controversial while Lingle v. Chevron USA Inc. has received far less public attention. This Article argues that the significance of Kelo and of Lingle lies in the extent to which the two cases engage with, or fail to engage with, the cultural debate over the function of property in contemporary society.
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In spite of the fact that the Constitution's fifth amendment states that "nor shall private property be taken for public use, without just compensation" politicians systematically impose almost confiscatory land-use restrictions on citizens. Growth of regulation and property-fights uncertainty have spawned grass roots opposition and political efforts to reinforce constitutional protections. Lacking success at the national level, property-fights advocates moved to the states where by August 1994 more than forty introduced property-rights legislation. Statistical estimates of the likelihood that such legislation would be introduced reveal strong support of the notion that the property-rights movement is a reaction to growth of government regulation.
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