Suchergebnisse

This article analyses the Constitutional Court's treatment of property interests in the face of state regulation to gain an understanding of the type of state interference that is justifiable in terms of section 25(1) of the Bill of Rights. This is done by examining the Constitutional Court's dicta relating to the meaning of deprivation and how these inform the meaning of property in the constitutional context. The methodology that the Constitutional Court has formulated to assess if state interference complies with the provisions of section 25 is explained to show the type of state regulation that has been found legitimate. We then consider how this understanding of constitutional property and the state's legitimate exercise of its inherent police power interact in the setting of intellectual property by contrasting the various policy objectives underlying the different statutory regimes governing intellectual property. This theoretical analysis is then applied to two contemporary examples of feasible state interference with existing intellectual property interests, namely the proposed plain packaging measures which severely restrict the use of tobacco trade marks, and a fair dealing exception allowing the use of copyright works for the purpose of parody. These examples serve to illustrate the context and manner in which intellectual property interests may come before the Court and the necessary differentiation with which these interests should be treated. The appropriate judicial assessment of the true impact that state action could have on vested property interests is explained and contrasted with the balancing exercise that is employed at the earlier stage of policy making. This discussion is concluded by highlighting some of the interpretational issues that will arise and how some constitutional values could be curtailed in the absence of legislative intervention.

This article analyses the Constitutional Court's treatment of property interests in the face of state regulation to gain an understanding of the type of state interference that is justifiable in terms of section 25(1) of the Bill of Rights. This is done by examining the Constitutional Court's dicta relating to the meaning of deprivation and how these inform the meaning of property in the constitutional context. The methodology that the Constitutional Court has formulated to assess if state interference complies with the provisions of section 25 is explained to show the type of state regulation that has been found legitimate. We then consider how this understanding of constitutional property and the state's legitimate exercise of its inherent police power interact in the setting of intellectual property by contrasting the various policy objectives underlying the different statutory regimes governing intellectual property. This theoretical analysis is then applied to two contemporary examples of feasible state interference with existing intellectual property interests, namely the proposed plain packaging measures which severely restrict the use of tobacco trade marks, and a fair dealing exception allowing the use of copyright works for the purpose of parody. These examples serve to illustrate the context and manner in which intellectual property interests may come before the Court and the necessary differentiation with which these interests should be treated. The appropriate judicial assessment of the true impact that state action could have on vested property interests is explained and contrasted with the balancing exercise that is employed at the earlier stage of policy making. This discussion is concluded by highlighting some of the interpretational issues that will arise and how some constitutional values could be curtailed in the absence of legislative intervention.

The Supreme Court of Tennessee has been faced with few major Constitutional Law problems during the period under consideration. Statistically, the action of the Court in invalidating one law out of almost a score that were attacked before it on the basis of constitutional defect suggests an attitude of judicial restraint toward the product of a coordinate branch of government. The relatively small number of constitutional questions raised-- and many of them were obviously make-weight rather than points of principal reliance-- suggests a general awareness of the Court's stability and the unlikelihood of its departing from established precedent. Similarly, regard for the precedent established in Plessy v. Ferguson, with its "separate but equal" doctrine, was a major factor in the decision of two federal district courts in Tennessee involving alleged deprivation of constitutional rights in the furnishing of educational and recreational facilities to Negroes. It was not a year for the expansion or contraction of doctrines of constitutionality previously established, although in one instance at least it appears that some "new law" was made.

The Constitution contains two clauses that protect persons against governmental interference with their property. The Due Process Clause provides that "No person shall . be deprived of life, liberty, or property, without due process of law." The Takings Clause adds, "nor shall private property be taken for public use, without just compensation." Both provisions appear to impose a threshold condition that a claimant have some "property" at stake before the protections associated with the Clause apply. Thus, under the Due Process Clause, it would seem that a claimant must have an interest in "property" (or in "life" or "liberty") before we move on to ask whether the state has "deprived" such a person of this interest without "due process of law." And the Takings Clause appears to require that a claimant have "private property" before we proceed to ask whether this interest has been "taken" by the government for a "public use" without the payment of "just compensation." The Supreme Court has not always been attentive to the "property" threshold under these clauses. During a brief period in the early 1970s, it spoke as if procedural due process applies to any interest that is "important," whether or not such an interest can be properly categorized as "property" (or "life" or "liberty"). In addition, cases from the 1960s and early 1970s seem to say that the substantive due process requirement of minimum rationality applies even if a claimant has no liberty or property interest.

This article examines the theoretical development of Chinese constitutional property law, compared with the experience in South Africa, which is another emerging jurisdiction of constitutional property law. Being cautious of the political, economic and social differences between two countries this endeavour is nevertheless important, because of its potential to spark renewed interest in the comparability of property law systems worldwide. It highlights that the third-generational constitutions of the developing world focus not only on participatory and political rights, but also on social rights and responsibilities of citizens, and in fact supports actionable socio-economic rights. Perceptions of property that may be regarded in the developing world as 'Eurocentric', i.e. that a system of 'individual' property interests is the predominant form of organization, are losing support. From the Chinese perspective, there seems to be an awareness of the increasing need to limit the vast regulatory reach of the state and to afford the individual better protection and opportunities to engage in personal wealth-enhancing activity. Yet, the promotion of individual property right should be comprehended in the view of the communitarian needs.

This report introduces the Takings Clause of the Fifth Amendment. It focuses on the Takings Clause in the U.S. Constitution, which applies both to the federal government and, through the Fourteenth Amendment Due Process Clause, to states and localities.