Individual Reliance and Government Forbearance: A Tale of Five Cases

Laura S. Underkuffler

The topic for this panel of the conference is government forbearance: when government must—or should—refrain from changing previously existing individual entitlements. There are many resons why one might argue that government should forbear. It could be argued, for instance, that government should forbear because of the need to encourage individual investment, something that might erode if there is no certainty in property entitlements. Or it might be argued that government should forbear because continually changing rules can cause individual frustration and social instability. Or it could be argued that government should forbear because property is earned, or a necessary and natural entitlement, or is justified by some other theory of property rights.

In this Essay, I will focus on one particular forbearance argument: that government should forbear because of an individual's justified reliance on previously existing legal entitlements. This arguement is not rooted  on previously existing legal entitlements. THis argument is not rooted in consequential theory; it is not rooted in the argument that government should forbear because—if it does not—certain negative consequences will follow.

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3 BRIGHAM-KANNER PROPERTY RIGHTS CONF. J. 141 (2014)