Evading economic reality: Real property access takings and the slippery slope of legal language
International Journal of Law and Management
ISSN: 1754-243X
Article publication date: 14 November 2008
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
:Emerald Group Publishing Limited
Copyright © 2008, Emerald Group Publishing Limited