Colonial land use law and its significance for modern takings doctrine

Article Abstract:

Review of land use regulation in the American colonies reveals that the Framers of the Constitution did not intend for the Takings Clause to restrict governmental authority to impose regulation on noninjurious land use. This revelation contradicts the assertions of property rights advocates that are currently insisting on compensation for government action that impacts land use. Colonial laws were not limited to nuisance and included affirmatively requiring landowners to make productive use of their land to maximize public benefit.

Land use, United States history, Nuisances, Nuisance, United States history, 1600-1775 (Colonial period)

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Deterrence and distribution in the law of takings

Article Abstract:

Separating the two purposes of the Takings Clause, efficiency and justice, would clarify the currently muddled understanding of the Clause that has resulted from several Supreme Court decisions. The Clause could then be analyzed in terms of four possible resolutions: an ordinary regulation; a taking, but not requiring compensation; no taking, but requiring compensation; and an ordinary taking. This would harmonize with the Court's one clear conclusion: that a taking without compensation is possible.

United States, Compensation (Law)

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The principle of equality in takings clause jurisprudence

Article Abstract:

The US Supreme Court should shape a Takings Clause based on equality, rather than deciding takings cases by a balancing test. By adopting an equality-based takings doctrine, the Court can make more consistent decisions in this area. Instead of promoting a market-based equality, an equality-based Clause could be developed that looks beyond social and economic conditions to provide broad protections for economically burdened citizens.

Economic aspects, Equality before the law, Equal protection

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