Publication Date

1987

Document Type

Article

Abstract

In the post World War II era of rapid land development, emergent environmental problems, and heightened legislative response, the taking clause has proved to be the most pervasive and significant limitation on the power of government over private land usage. The dimensions and implications of this provision and the interpretive Supreme Court opinions have attracted the attention of numerous scholars whose efforts, usually, have been rather critical. The authors have often sought to question the logic, language and premises of fundamental opinions, to warn of the economic, moral and ecological consequences of portended judicial trends, to pose new taking tests that will make sense out of the muddled precedents, or to transcend the clause through limitations on jurisdiction, constitutional amendment or overruling, or through new legal abstractions such as transferable development rights or "fair" compensation.

The purpose of this Article is, perhaps, more modest: it is not intended to criticize nor to present a vision of a bold new planning world beyond Marx, Adam Smith and uncompensated zoning. Rather, the Article is designed to, if possible, clarify the existent. It will attempt to identify common factors and principles in the Supreme Court cases and thereby form a synthesis of regulatory taking doctrine. The Article will also seek to integrate the regulatory taking issues with other taking clause applications in the areas of eminent domain, inverse condemnation, and the associated constitutional limitations of substantive due process.

Publication Title

University of Missouri Kansas City Law Review

Volume

55

Issue

2

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