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

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.

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.

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

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.

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

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.