Document Type

Article

Publication Date

3-2013

Journal Title

George Mason Law Review

ISSN

1088-5625

Abstract

The U.S. Supreme Court has declared for decades that, for Takings Clause purposes, property interests are not created by the Constitution but rather are determined by “existing rules or understandings that stem from an independent source such as state law.” However, the Court has exhibited a strong normative preference for a certain type of independent source — “background principles” of the common law — over others, namely state statutory and administrative law. This Article calls this preference into question.

The Article develops a model to demonstrate the four basic categories, or quadrants, of takings decisions that extensive reliance on the “background principles” inquiry has wrought, and questions the self-contained nature of this inquiry. In doing so, it asserts that a focus on connecting or disconnecting challenged regulations to what are, at times, antiquated background common law principles can come at the expense of a more direct and transparent consideration of what is in the foreground: the public and private interests implicated by the challenged regulations in the modern context within which those regulations are promulgated. The Article advocates de-emphasizing the background principles inquiry in favor of a contextual analysis that is centered on fairness and recognizes that background principles might not be sufficient to deal with modern problems and serve modern human needs.

First Page

837

Last Page

877

Num Pages

41

Volume Number

20

Issue Number

3

Publisher

George Mason University

File Type

PDF

Share

COinS
 
 

To view the content in your browser, please download Adobe Reader or, alternately,
you may Download the file to your hard drive.

NOTE: The latest versions of Adobe Reader do not support viewing PDF files within Firefox on Mac OS and if you are using a modern (Intel) Mac, there is no official plugin for viewing PDF files within the browser window.