ARTICLE: Regulatory Takings, Private Property Protection Acts, and the "Moragne Principle:" A Proposal for Judicial Legislative Comity Skip over navigation
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Copyright (c) 1997 University of South Carolina
South Carolina Law Review

ARTICLE: Regulatory Takings, Private Property Protection Acts, and the "Moragne Principle:" A Proposal for Judicial Legislative Comity

Fall, 1997

49 S.C. L. Rev. 83


Professor Bruce Burton *


I. Introduction

Sometimes a court-made legal doctrine approaches the uttermost limit of its own complexity and begins to lose traction with ordinary minds. When this lack of clarity occurs, a period of fallow from further growth of the doctrine may be the most optimal path for a burdened society. In the heady metaphysics of modern Takings Clause jurisprudence, precisely this condition exists. 1

Despite the general murkiness in this area, various components of a rational formula for the much-needed fallowing are emerging. These components have the potential to improve matters greatly by slowing the growth industry of judicially created takings doctrine. To help realize this potential, this article proposes a synthesis of several discrete concepts.

The present analysis is premised upon a series of four propositions that are axiomatic to those currently working or writing in the often befuddling area of regulatory takings law. First, the Fifth Amendment protections of private property historically are predicated on a very real mistrust 2 of govern- ment--regardless of whether the governing body is a parliament, congress, king, or executive agency. This mistrust bred an essentially Lockean viewpoint towards governmental power 3 that underlies the pertinent constitutional provisions in the regulatory takings area.

Second, the judicial development of regulatory takings doctrine, particularly since the modern burst of United States Supreme Court activity commenced in 1987, is a murky swamp of illogic, undefined terms, and dictariddled opinions. 4 The lack of clarity in the various cases only increases litigation when friction points between governmental regulation ...
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