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Hastings Constitutional Law Quarterly

Authors

Benjamin Wiles

Abstract

Although constitutional takings clauses have been the topic of substantial scholarship, the current literature lacks a methodological framework for understanding and analyzing takings clauses. Because there are so few cases of constitutional takings clauses to compare, applying "large n" quantitative methods to takings clauses would be difficult. Therefore, legal scholars need to use "small n" qualitative research methods.

Typologies can provide a framework for meaningful qualitative analysis. In the social sciences, typologies have been used to differentiate among different types of political regimes, electoral shifts, and economic growth strategies. These typologies can then be used to frame research questions, develop theories, and test hypotheses.

This note proposes a typology that classifies takings clauses based on the political motivations of the takings clause's framers. Political motivation is a useful benchmark because it can affect both the scope of protected property rights and the degree to which the rights are enforced. I will use the Constitutions of South Africa, Germany, and the United States as touchstones for a typology of constitutional takings clauses, representing practical, reactionary, and philosophical takings clauses respectively.

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