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Michigan Law Review




The U.S. Constitution forbids both the federal and state governments from taking private property for public use in the absence of just compensation. In determining whether particular government actions require compensation, the members of the U.S. Supreme Court have agreed that the purpose of the constitutional compensation requirement is "to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole." The members of the Court have also agreed that whether justice and fairness require compensation will turn upon a two-step inquiry. First, government action that involves either a permanent physical occupation or a denial of all economically viable use establishes a per se taking and will always require compensation. Second, for government action that does not involve a per se taking, the Court will resolve the compensation issue by an ad hoc balancing of five or six specific factors. Despite agreement as to both the purpose of the compensation requirement and the correct approach to resolving the issue, the Court has had considerable trouble resolving the specific cases before it.

To provide some insight into the nature of these disagreements, and to suggest a possible solution to the compensation issue, this article undertakes a critical reexamination of the takings jurisprudence. It focuses on the two bases which the modem Court has articulated as support for its resolution of the compensation issue: (1) the articulated purpose of using the just compensation requirement "to bar Government from forcing some people alone to bear public burdens"; and (2) the early case law. Beginning with the Court's first struggles with the compensation issue in the late nineteenth and early twentieth century, this article traces the historical path of the takings jurisprudence, reexamining the early cases and the policy reasons behind a constitutional requirement of compensation. This journey suggests that neither the early case law nor the articulated purpose of the Takings Clause will support the modern Court's resolution of the compensation issue.

First, a critical reexamination of the early case law reveals that the modem Court has not been faithful to the early Court's approach to the compensation issue but has instead rewritten that early history. Second, a critical reexamination of the modem Court's resolution of the compensation issue reveals that the Court has not interpreted the compensation requirement in a way that effectively "bar[s] Government from forcing some people alone to bear public burdens."

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University of Michigan Law School

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