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Article

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Mahon Reconstructed: Why the Takings Issue is Still a Muddle, 57 Southern California Law Review 561 (1984)

Abstract

Property law involves considerable interchange between individuals and governments. Local governments regulate real estate extensively. State and national regulations of such diverse matters as air quality and strip mining may affect property owners' use of their holdings. In the course of this regulation, a number of difficult constitutional issues arise. To give just a few examples, is an architect's building an "expression" protected by the first amendment? Do sewer hookup moratoria illegally exclude the poor, and, if so, is such exclusion constitutionally significant? Is it an "establishment of religion" when a local ordinance gives churches the right to veto the sale of liquor within a given distance of the church?

By far the most intractable constitutional property issue is whether certain governmental actions "take" property without satisfying the constitutional requirements of due process and just compensation. A number of property theorists have addressed this vexing issue, but they have yet to agree on the proper disposition. Instead, commentators propose test after test to define "takings," while courts continue to reach ad hoc determinations rather than principled resolutions.

Date of Authorship for this Version

1984

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