49 Duke L.J. 803 (1999-2000)
How Permanent Became Temporary in Del Monte Dunes

handle is hein.journals/duklr49 and id is 817 raw text is: Notes
HOW PERMANENT BECAME TEMPORARY IN
DEL MONTE DUNES
MICHAEL C. LEVINE
Regulatory takings are like car accidents. They fascinate us. We can-
not help slowing down to look What a disaster, we say to ourselves.
We are so glad it did not happen to us. But we wonder if we could be
next. We think about who is at fault, who should pay for the damages,
and how it all could have been avoided in the first place. And we
question how the rules of the road could be improved so that such
collisions in the future could be averted.1
The concept of a regulatory taking was first recognized in the
late 1800s.2 In the century since, innumerable federal judges, profes-
sors, and other commentators have managed so to convolute that
area of the law that it does, indeed, resemble a car wreck or an im-
penetrable jungle rather than a discrete legal principle. In fact, it has
been written that [t]hroughout constitutional jurisprudence, only the
right of privacy can compete seriously with takings law for the doc-
trine-in-most-desperate-need-of-a-principle prize.3
1. G. Richard Hill, Partial Takings After Dolan, in TAKINGS: LAND-DEVELOPMENT
CONDITIONS AND REGULATORY TAKINGS AFTER DOLAN AND LucAs 189,189 (David L. Cal-
lies ed., 1996) [hereinafter TAKINGS AFTER DOLAN AND LucAs].
2. Mugler v. Kansas, 123 U.S. 623 (1887), is widely recognized as the first Supreme Court
case to acknowledge that a regulatory taking was possible. See Terri L. Lindfors, Property-
Regulatory Takings and the Expansion of Burdens on Common Citizens, 24 WM. MITCHELL L.
REV. 255,260 (1998).
3. Jed Rubenfeld, Usings, 102 YALE LJ. 1077, 1081 (1993); see also BRUCE A.
ACKERMAN, PRIVATE PROPERTY AND THE CONSTITUTION 8 (1977) (I have not encountered
a single lawyer, judge, or scholar who views existing case-law as anything but a chaos of con-
fused argument which ought to be set right if one only knew how.); Richard L. Settle, Regula-
tory Taking Doctrine in Washington Now You See It, Now You Don't, 12 U. PUGET SOUND L.
REV. 339, 339 (Regulatory taking doctrine is the most perplexing area of American land use
law.).

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