A Study Of The Historical Transformation Of Takings Legal Institution Of The United States

There is a highly close relationship between the born and transformation of America's takings law and the modernization of its economic and society.The law institution is the consequence of the interaction among free market,political framework and legal thoughts.The transformation of this institution reflects lasting tension between free market and society,and the unremitting efforts of Americans to control the stretching force by laws.Nowadays,China also faces the challenge of modernization.In the field of takings law,it's worth using the experience and lessons of Americans as a source of reference.Therefore,this dissertation is trying to answer the following two questions:Firstly,what is the basic features of America's takings law?Secondly,how does the law transform in the process of social modernization,and what are the influences?Takings law of the United States is based on the taking clause in Constitutions and includes three patterns of taking,respectively eminent domain,regulatory takings and judicial takings.Taking the Civil War as a key point,the transformation of takings law can be divided into two phases,namely classical period and modern period.The classical period extends from the starting of 18th century to the eve of the Civil War.In this phase,semi takings law of Colonial America evolved into a complete form.The reason I call this phase classical period is that neither colonies nor the new republic possessed main attribution of modernization.Semi takings law of Colonial America usually lacked one of three basic characteristics of modern laws.Whereas,the federal government was forbidden directly taking properties.The origin of American takings law can be traced back to a series of laws of Colonial America which got their takings features from takings law of Britain.After a livelong conflict,parliament final gained the power of takings from the King in 1427.Meanwhile,takings law made by the parliament possessed elementary factors of its modern counterparts:takings should cater for public benefits and the man who loses his property should be just compensated.Among these factors,public benefits and just compensation provided semi takings law of Colonial America with institutional essentials.Contemporarily,almost every colony had Mill Acts and Highway Acts which respectively expanded and enriched theories and practices of public use and just compensation.Besides,there are similarities between purveyance as a King's prerogative and takings power,which forms one of the historical basics of modern regulatory takings.War of Independence not only makes America become an independent nation state,but also effectively advanced the takings law.During the wartime,leaders of American revolution were the eyewitnesses of Bills of Attainder which undermined property order.In order to prevent abuses of eminent domain,the founders wrote "taking clause" into constitutions during the Constituante after the war.Finally,by referring to the practices of Mill Acts,High Acts and British takings law,Madison insisted insert;taking clause" in the form of amendment into federal constitution.From then on,America's takings law got its cornerstone.It was the commercialization of lands,centralization of state powers and progressive ideas in legal thoughts that are the most three important motivations in the transformation of classical takings law.The three motivations separately offered economic base,political safeguard and thought guidance to the institutional changes.commercialization of lands not only advanced lands transaction,but forced newly established federal government centralized state powers to regulate it.The development of economy and polity stimulated the emergence of progressive legal ideas which claimed judges should utilize laws to manage society to fulfill progression.The Civil War is another decisive fight thoroughly changing the destiny of the United States.Consequently,takings law gained the basic social conditions of modernization.First of all,a nation-wide land market formed due to the Civil War.When the war ended,a large number of black slaves were emancipated.Most of them moved westward for making a living and looking for relatives.At the same time,federal government gained numerous western lands and privatize them immediately by statutes.During this westward movement,federal government achieved one of its original goals which every citizen could receive an amount of land.Consequently,there were vigorously land transactions and speculations.Second,to deal with the challenge of land market,federal government centralized state power through reconstruction after the war.Lincoln insisted resolving armed rebellion of the South in constitutional framework.What is more,he asked congress to confer the powers to regulate economic and social lives.In the name of the war,the congress also expanded its power to regulate economic activities.However,no matter the president and the congress,most of their new powers belonged to states before.By centralizing state power,the federal government not only prevented slavery from spreading to the west,but also led the reconstructions after the war and restored the economic and social order quickly.At last,the modernization of legal thoughts effectively balanced the tension between economy and polity.Furthermore,it also maintained social order after the war,which provided modernization with advantageous conditions.Around the Civil War,American legal thoughts transformed from natural law to legal scientism and realism at last.This transformation urged courts to see law from an instrumentalism aspect,which could use law to ease the tension between free market and political institution.The interaction among all of the three factor above impelled the development and transformation of American modern takings law.In the modern stage,takings law of the United States has experienced three major expansions which created two entirely new patterns of takings.As a result,eminent domain,regulatory takings and judicial takings jointly constitutes modern takings institution of America.Firstly,the implementation and alienation of eminent domain.Federal,state,and local governments have the inherent power to take private property for public use over the owner's objection upon payment of fair market value,through a process known as eminent domain.It is the taking clause in constitutions that is the core of legal ground of the actions thereof.Essentially,eminent domain is the modern expression of classical takings.In modern world,the institution of condemnation transformed from genuine implementation to alienation.In the classical period,eminent domain was usually carried out by colonial(state)and local government due to lacking of central government or having weak governmental authorities.This condition didn't change even after the operation of the federal taking clause.Before 1860s,federal government didn't directly implement eminent domain at all because of political reality and court injunction.However,the court granted the capability of using eminent domain to the federal government again in the case of Kohl v.the United States of 1875.Afterward,the alienation of condemnation happened for high-speed development of modern free market,expansion of state powers and further modernization of legal thoughts.Present-day courts have deconstructed public use in the taking clause.At last,taking clause loses the function to prevent eminent domain from being abused.Simultaneously,condemnation gradually becomes a tool to grab money for governments and private companies which have a close relationship to governments.After Kelo v.City of New London in 2005,American society initiated a movement to revive original intention and restrictive function of taking clause.Unfortunately,it only got a partial successfulness.Secondly,in the process of constructing welfare state,regulation emerged on a large scale and permeated into every aspect of social life.Regulatory takings emerged as the times require to limit government's regulation and protect citizen's property rights.Regulatory takings derive from administrative regulations in certain circumstances.The differences between eminent domain and regulatory takings are that the latter is usually carried out by administrations and expressed by case laws.The firs case of regulatory takings is Pennsylvania Coal Co.v.Mahon of 1922.Justice Holmes writing for the court believed that regulation will be recognized as a taking if it“goes too far.”Nevertheless,the "too far" test had not been operated until a new one established in 1978.In the case of Penn Central Transportation Co.v.New York City,the court created the multi-factor balancing test which is the basic modern standard for regulatory takings.Today,modern regulatory takings have become an undivided legal system which consisted of a value pursuit,a basic principle,a general rule and three special rules.Finally,judicial takings are the newest direction of the development of modern takings law.Theoretically,courts could change existing property rules in common law.The actions thereof are the origins of judicial takings.In other words,judicial takings derive from certain judicial actions.For that reason,this kind of takings has a similar structure with regulatory takings.It is a brand new pattern of takings which is different from eminent domain and regulatory takings because of the negativity and neutrality of courts.In fact,the appearance of judicial takings is an inevitable result of the expansion of federal powers.It is necessary for the modern court to review the property tradition of America to definite meanings of today's property rights.In sum,there is a special position of takings law in the legal system of the United States.Traditionally,Americans respect and protect private property.However,property rights have their own boundary and should be limited in some sense.Among all the limitations,eminent domain is the most extreme measure.Nonetheless,takings law is the most effective method to regulate government's taking activities and defend private property rights.Meanwhile,the boundary of private property also drawn by the law.Hence,modern American takings law possesses both attributions of public and private laws.Historically,the transformation of American taking institutions reflects the interactives and syncretic between public and private laws in the process of modernization.At the same time,the takings law reversely advances the modernization of America.The continuous motions of modernization derive from the permanent tension between free market and political institution.In the circumstances of America,takings law acts as a compression release valve of the tension thereof.The takings law brings newborn property rights into the existing property system.On the other hand,new regulating measures of government are place under the supervision of takings law.By this means,the tension can be control in reasonable extent and do nothing leading to the collapse of market and society.