Temporary Takings, More or Less

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.

Keywords: property, property theory, Supreme Court, Fifth Amendment, Takings Clause, temporary takings, First English, Koontz, Arkansas Game, land use