Abstract
It is time to return to the framing question: what do Type I and Type I expropriations tell us about the contentious Type II takings issues? Type I disruptions show how certain kinds of expropriation are necessarily built into a property regime; they make the regime itself function. Type III disruptions are at the other extreme: they are expropriations that occur not from the logic of a property regime, but rather because some people, rightly or wrongly, are not deemed to be participants in the property regime at all. At that extreme, denial of property is denial of membership in a community; it is a part of a radical othering. The subject of my special concern, the Type II disruptions that raise takings claims, partakes of the first but gives rise to the specter of the third. Type II disruptions arise from the property adjustments that mustbebuilt into a property regime, in order to cope with changes in congested resources; but nevertheless, these adjustments can raise the prospect that some persons are treated as strangers to the community. This may be one reason why takings claims arouse such heated emotions on the part of owners; it is not simply that owners perceive theloss of a valuable asset, but also that they sense that others are saying, in effect, we can take your things and we don't care, because you are not one of us.
Recommended Citation
Rose, Carol M.
(2000)
"Property and Exporpriation: Themes and Variations in American Law,"
Utah Law Review: Vol. 2000:
No.
1, Article 1.
Available at:
https://dc.law.utah.edu/ulr/vol2000/iss1/1