Laura S. Underkuffler

91 Texas L. Rev. 2015

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The protection of property is of unquestioned importance in human lives.  It is therefore no surprise that the threat of collective action that will affect one’s property is an emotionally charged issue.  In the United States, the most well-known legal battleground for litigating the question of property rights and change is the Takings Clause of the Fifth Amendment of the Constitution.  Despite a sustained effort by the Supreme Court to articulate governing principles in this area of the law, the jurisprudence that has emerged remains largely incoherent, and of “essentially ad hoc, factual” decisionmaking.  In analyzing this inadequate treatment, Professor Underkuffler argues that it is the collision of the idea of property with the idea of change that is to blame.  The Court has been unwilling or unable to intellectually reconcile the incompatibility of the ideas of property and change that lies at the core of its incoherent takings jurisprudence.  The unique characteristics of property as a right—its rivalrous nature and its meaning as protection—have made the idea of competing interests uniquely difficult to accommodate intellectually in this context.  Rather than acknowledge and deal openly with this problem, the Court has attempted to mask it in various ways.  This myopic view of property rights and change has led to an artificially concrete idea of property, which ignores the existence and merit of competing public interests.