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Cardozo Law Review

Abstract

In discussions of regulatory takings law, there appears to be an almost universal assumption that its vagueness is a bad thing, a mysterious dysfunction. This article argues that the vagueness in takings doctrine is quite functional and entirely appropriate. Since considerable vagueness turns out to be inevitable, this is just as well. Happily, over time, specific resource use conflicts and transitions sometimes do crystallize out into more predictable forms of law - new rules and customs about specific types of property. Within these specific and limited regimes, we can and should aspire to rules defining the circumstances under which the community's need to readjust property rights and responsibilities should be accompanied by compensation. But this process of generating clear rules and customs occurs within the context of another kind of legal principle - one that is vague, chaotic, fertile, that demands resolution even though it is impossible to resolve once and for all. Indeed, the vague regulatory takings doctrine, and the equally vague and intractable doctrine of nuisance, are at the core of property law understood as a dynamic social institution. Their vagueness is precisely what enables them to anchor civil society's ongoing social process of creating and revising other, more crystallized expressions of property law. Belief in them, argument and practice within the vacuous framework they lay down, provide stability, coherence, and legitimacy for the ongoing social process of managing resources.

Disciplines

Constitutional Law | Jurisprudence | Law

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