Temporary Takings, More or Less
Document Type
Book Section
Publication Date
1-2015
ISBN
978-0-19-936874-7
DOI
10.1093/acprof:oso/9780199368747.003.0022
Abstract
In accord with the Supreme Court’s 1987 decision in First English, when a property owner successfully challenges a regulation as a taking and the government chooses to repeal that offending regulation, the government must pay compensation for losses sustained during the period for which that regulation was in effect, regardless of whether the regulation originally was enacted in good faith. This book chapter introduces a conception of ownership grounded in humility that recognizes the limited reach of human knowledge and the variability of our normative positions. It suggests that a conception of ownership grounded in humility calls for a more contextual analysis in temporary takings cases than First English and its recent progeny, Arkansas Game and Koontz, allow, and raises for discussion the possibility that such an analysis might appropriately turn in part on whether the governmental entity acted in good faith when attempting to update property rules via regulation.
First Page
461
Last Page
477
Num Pages
17
Publisher
Oxford University Press
Place
New York, NY
Editor
Randall S. Abate
Book Title
Climate Change Impacts on Ocean and Coastal Law: U.S. and International Perspectives
Recommended Citation
Timothy M. Mulvaney,
Temporary Takings, More or Less,
in
Climate Change Impacts on Ocean and Coastal Law: U.S. and International Perspectives
461
(Randall S. Abate eds., 2015).
Available at:
https://scholarship.law.tamu.edu/facscholar/1081