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.
- Takings Clause,
- temporary takings,
- regulatory experimentation,
- good faith
Available at: http://works.bepress.com/timothy_mulvaney/31/