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Contribution to Book
Temporary Takings, More or Less
Climate Change Impacts on Ocean and Coastal Law: U.S. and International Perspectives (2015)
  • Timothy M Mulvaney
Abstract

Modern Fifth Amendment Takings Clause jurisprudence can pose significant obstacles to innovative government actions to manage and protect land and other environmental resources in the face of a changing climate. While many of the U.S. Supreme Court’s takings dictates have served to depress regulatory experimentation, the principle of retroactive “temporary takings” compensation seemingly remains the most chilling for government officials seeking to employ new regulatory tools. This chapter introduces a conception of ownership grounded in humility, that is, a conception that recognizes the limited reach of human knowledge and the mutability of normative positions. It suggests that such a conception of ownership calls for a more contextual analysis in temporary takings cases than current jurisprudence allows, an analysis that might most appropriately turn on whether the governmental entity acted in good faith when attempting to update property rules via regulation.

Keywords
  • Takings Clause,
  • temporary takings,
  • humility,
  • regulatory experimentation,
  • good faith
Publication Date
2015
Editor
Randall S. Abate
Publisher
Oxford University Press
Citation Information
Timothy M Mulvaney. "Temporary Takings, More or Less" Climate Change Impacts on Ocean and Coastal Law: U.S. and International Perspectives (2015)
Available at: http://works.bepress.com/timothy_mulvaney/31/