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A Study on the State Action Doctrine — Focused on the Recent Debates Over the Judicial Takings in The U.S. —

  • DONG-A LAW REVIEW
  • 2014, (65), pp.125-152
  • Publisher : The Institute for Legal Studies Dong-A University
  • Research Area : Social Science > Law

Jong Geun Lee 1

1동아대학교

Accredited

ABSTRACT

The state action doctrine stems from the 14th Amendment to the U.S. Constitution. The U.S. Supreme Court recognized so-called essential dichotomy in the 1883 Civil Rights Cases. It means that the 14th Amendment offers a safeguard against the deprivation of rights by the state, but offers no shield from the deprivation of rights by private persons. In other words, deprivation of property rights by private conduct is not subject to scrutiny under the 14th Amendment, because the state action is not involved in taking away the property. The concept of judicial takings has originated with Justice Harlan's majority opinion in the case of the Chicago, B. & Q.R. Co. v. City of Chicago in 1897. A state court's final decision having an effect of deprivation of private property should be deemed the state action within the meaning of 14th Amendment. Therefore just compensation should be rewarded under the judicial takings doctrine. In Stop the Beach Renourishment, four Justices argued for finding that a court decision could constitute a taking of property, but even those Justices only indicated to grant a remedy of overruling the state court's decision, not providing just compensation. In the case of constitutional injuries are caused by incorrect judicial decisions, a new dimension of judicial review would be established if challenges to such court decisions are allowed.

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