Investment-Backed Expectations and the Politics of Judicial Articulation: The Reintegration of History and the Lockean Mind in Contemporary American Jurisprudence


The Fifth Amendment's Just Compensation Clause is a revealing reflection of the Framers' vigilance in preserving property rights and maintaining a balance of power between citizen and state, especially in the specific context of eminent domain. The principle that the state should be generally forbidden from taking private property for public use without just compensation is a leading motif in the definition of a political culture that underpins the emergence and maintenance of a prosperous capitalist society.

In this Comment, Kraig Odabashian critiques the U.S. Supreme Court's use of the landowner's investment-backed expectations as the primary standard under which the Court has evaluated cases of government takings requiring just compensation. The author posits that the concept of "expectation," whether subjective or objective in perspective, is not the proper tool with which to analyze constitutional questions of this sort. Rather, this is a role more properly assigned to objective hermeneutics in the process of judicial epistemology.

In his central thesis, the author contends that the Just Compensation Clause ought to be reattached to its philosophical and historical origins, more specifically, that the Supreme Court ought to adopt a historical baseline test for regulatory takings in order to pursue this more abstract goal. En route to establishing this thesis, he also examines the methodological failures which have led to the intellectually weak formulation currently applied by the Court to most just compensation claims.

The author concludes by assessing the overall value of a historical baseline test in terms of its ability to generate a specific jurisprudence which is both cogent and practically operative. He approaches this task by both applying the historical baseline test to the Court's major just compensation cases and considering it in view of the specific language of the clause and the central themes of the Constitution as they are textually presented in the document itself, as well as in the Constitution's historical and philosophical animation.

About the Author

Editor, UCLA Law Review; Editor-in-Chief, UCLA Journal of Islamic and Near Eastern Law, Juris Doctorate candidate, UCLA School of Law; B.A., Political Science, Columbia University.

By uclalaw