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Evading economic reality: Real property access takings and the slippery slope of legal language

M. Gordon Brown (Real Estate Management and Development Group, Department of Architecture, Building and Planning, Eindhoven University of Technology, Eindhoven, The Netherlands)

International Journal of Law and Management

ISSN: 1754-243X

Article publication date: 14 November 2008

305

Abstract

Purpose

The purpose of this paper is too analyze what causes judicial decisions about access impairment in American eminent domain and police power cases to be based on subjective interpretations instead of objective factual evidence about the spatio‐material conditions of access.

Design/methodology/approach

Following a review of commentary on decision making and language in legal contexts, contemporary rhetorical analysis combined with discourse analysis are employed to illuminate inconsistencies of legal terminologies with respect to access.

Findings

The analysis finds that legal terminology of access takings sustains cognitive indeterminacies and prevents the use of standard quantitative approaches to measurement.

Research limitations/implications

The implications of this research are that access conditions need to be considered in the context of transaction costs based on an underlying ontology of access phenomena.

Practical implications

This paper calls for changing legal policy so that objective measures of access can be used to evaluate impairment.

Originality/value

This is the first paper to analyze underlying problems in access takings and sets the stage for a more objective and scientific approach to a long unresolved problem involving property takings.

Keywords

Citation

Gordon Brown, M. (2008), "Evading economic reality: Real property access takings and the slippery slope of legal language", International Journal of Law and Management, Vol. 50 No. 6, pp. 285-300. https://doi.org/10.1108/17542430810919240

Publisher

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Emerald Group Publishing Limited

Copyright © 2008, Emerald Group Publishing Limited

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