Is the Longue Durée a Legal Argument?: Understanding Takings Doctrine in Climate Change and Settler Colonial Contexts in the United States

Abstract

This article investigates whether it is possible to bring the longue durée, or the re-contextualization of risk distribution and accumulation, into litigation about climate outcomes. We do this by analyzing the structure of disaster litigation to identify if and whether historical harm is included in argumentation and by applying the concept of takings to a hypothetical legal argument of repetitive flooding in Alaska. We conclude that invisibility of historical harm in climate and disaster litigation gives insight into the preference and structure of the law.