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The Development of Modern Property Right's Taking Jurisprudence - focused on the analysis of the U.S. Supreme Court's decisions-

  • Public Land Law Review
  • Abbr : KPLLR
  • 2009, 43(3), pp.1-30
  • Publisher : Korean Public Land Law Association
  • Research Area : Social Science > Law

In-Sun Seok 1

1이화여자대학교

Accredited

ABSTRACT

The United States has a highly individualistic market-based concept of property in the guarantee of property rights. One of the important provisions regarding economic regulations in the U.S. Constitution is the Fifth Amendment(hereinafter “Taking Clause”), which prescibes “Nor shall private property be taken for public use, without just compensation.” The federal and state governments have the power to take private properties for public use. Due to the Taking Clause, the government must provide private person just compensation for national appropriation or restriction of private properties. The jurisprudence over the scope of and extent to the property right's protection is embodied through the type, requirement and compensation of the property right's infringement by the government, such as a taking. Considering these matters, the study of the U.S taking jurisprudence is very useful for understanding the theories and practices of property right's guarantee in the U.S. The U.S. Supreme Court tends to interpret the Taking Clause as protecting the economic value and expectation of the property, not the purpose of property right's guarantee. In addition to the brief provisions about property rights in the U.S. Constitution, the guarantee of property rights is realized to the taking jurisprudence by the U.S. Supreme Court's decisions. Accordingly, the review of property right's taking jurisprudence focused on analyzing the Court's cases is an essential part of the discussions over the property right's guarantee in the U.S. Constitution. With previewing the historical development of taking jurisprudence, this article mainly deals with modern taking jurisprudence surrounding the Taking Clause in the U.S. Supreme Court. Through this study, I will explore how the private person's economic right, especially the right to landownership, is protected and limited by the Taking Clause. In this article, Part I raises the need to preview the subject and Part II deals with the history and development of the Taking Clause to analyze the modern property right's taking jurisprudence. In Part III, I examine which property is protected by the Taking Clause, through analyzing the Court's cases. After looking over the type of problematic regulations in the taking jurisprudence in Part IV, I consider how the modern taking jurisprudence responds to and develops discussions over the sensitive practical taking problems rising from economic regulations by means of evaluating the Court's main cases regarding the Taking Clause in Part V.

Citation status

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