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Abstract:
In recent years, property owners have increasingly clashed with regulators over what seem to be ever-expanding environmental laws. The ensuing conflicts have raised the stakes for understanding the ways in which American constitutional law protects owners from uncompensated "takings" of their property.

This article argues that although the United States is certainly a very property-conscious nation, our property law has also co-existed with several quite different forms of uncompensated expropriations that have gone almost unnoticed in our property law. These contrasting types of expropriations can put in perspective the environmental regulations currently contested in "takings" cases.

On the one extreme are a set of generally unnoticed expropriations that arise from claims-clearing doctrines and rules such as adverse possession, liability rules, and losses from the operation of the recording system. Despite the expropriative effects of these rules, a property regime could not exist without such housekeeping devices to clear title for continuing normal transactions; such rules suggest that certain forms of expropriation are actually a part of any functioning property regime.

At the other extreme are the very dramatic expropriations that accompanied such major social upheavals as the American Revolution, the emancipation of slaves, and the settlement of the West at the expense of indigenous peoples. The article argues that these expropriations did not unsettle the bulk of property relations precisely because of their extraordinary character, particularly because they were perceived at most as losses suffered by "outsiders" to the ordinary community of property holders.

The article argues that "takings" claims arise in an intermediate area between the housekeeping rules and the extraordinary measures. Changes in environmental laws, like the operation of housekeeping rules, are a part of any functioning property regime, in that they necessarily readjust the content of entitlements in face of increasing congestion and competition for environmental resources. But because of the uneven distribution of environmental regulatory change, these regulations also raise the prospect that some owners may be treated as "outsiders." The article argues that takings doctrine is, thus, best understood not as an automatic defense of property rights, but rather as a legal compromise tactic to allow needed environmental transitions to occur, while reassuring owners that they are not being treated as "outsiders" to the community.

Abstract:
Privatization has been something of a watchword in the years since the fall of the Soviet Union. The rationales for privatization are usually economic, stressing the comparative advantage of market regimes over bureaucratic ones: that private property gives owners the incentives to make better investment decisions, and that a market economy is more flexible and nimble in satisfying people's wants.

This article, however, leaves the economic arguments to one side and instead takes up the political arguments for privatization, many of which have a long history. The paper maps modern deregulatory efforts onto a series of six longstanding arguments to the effect that property and commerce are the most important rights of all in supporting democratic governance; the idea is to see whether the modern efforts tend to confirm or disconfirm the arguments for private property's centrality in a democracy. The paper concludes that the picture is somewhat mixed: some privatization measures support the political arguments for property, while others do not. The lesson is that political reform cannot rest on property and privatization alone, but needs to take place on a variety of fronts, of which, of course, privatization may be an important component.

privatization, property, political reform

Abstract:
What kind of person is presupposed by property law? This paper, written for a symposium on the morality of law, investigates the morality that is expected of participants in property regimes, and it argues that property presupposes a "second-best" morality. The presumptive property subject is a self-interested being, but also one who has a modicum of cooperativeness. But is such a second-best morality good enough to command respect? Critics complain that it is not, and that property concedes too much to human self-interest. This paper explores three areas where this critique arises: the claims that initial acquisitions are based on wrongful behavior, thus tainting subsequent ownership; that property results in unequal distributions of wealth; and that commercial property's alienability corrupts the human understanding of love, generosity and good civic behavior. The usual property-based answer to these critiques is that property nevertheless makes us all better off. Thus claims and responses do not meet, with one side speaking of personal morality and the other referring to the public welfare. Nevertheless there are several ways in which property's more forgiving second-best standard may also call into question the personal moral character of a more demanding first-best standard.

property, morality, acquisition, inequality, commodification

Abstract:
This chapter concludes a book on new theories of commodification. While early commodification theory constituted a sharp critique of economics approaches to law, the author finds a certain rapprochement in some of the newer commodification literature. Although many of the newer scholars remain critical, some in effect borrow the economic idea of the second best, to argue that although gift relationships might be first-best solutions, particularly in intimate associations, market approaches could be second-best even in those contexts, where noncommercial approaches are not feasible. (That is to say, love might be best, but getting paid is second-best, e.g., in the case of prostitution, domestic relations or organ transfers.) Other scholars see commodification as a liberating release from nosy neighbors and intrusive regulators, e.g., in the case of reproductive materials. Still others note that markets themselves are social relationships, and market exchange may act as the opening step toward later relationships of friendship and trust, as in the burgeoning affection between paid caregivers and recipients. In all these and other ways, newer commodification theorists, while still frequently very resistant to law-and-economics, have offered a fresh look into the liberatory or socializing characteristics of market transactions.

property, commodification, law and economics

Abstract:
This background study of the Lucas case focuses on legislative efforts to protect the evocative and productive lands of coastal areas. A starting point is the failed effort in the early 1970s to enact a Federal Land Use Act that would encourage statewide land use planning. The Coastal Zone Management Act (CZMA) was in effect a remnant of this larger effort, successful because it isolated opposition by narrowing the regulatory ambit to the popular coastal area. State coastal programs often replicated the CZMA's pattern of isolating opposition by focusing on a relatively narrow coastal area. This strategy, however, ran two risks: first, the environmental risk that a truncated "coastal zone" would miss important coastal influences outside that zone; and second, the jurisprudential risk that narrowly drawn coastal laws would be caught in an evolving "takings" jurisprudence, fueled by an increasingly vocal property rights movement. Both risks became clear in California's pioneering and aggressive coastal program, but the issues came to a head not in California but in South Carolina, as this state (following environmental theories developed in neighboring North Carolina) attempted to orchestrate a "retreat" from beachfront development. South Carolina's efforts ran into David Lucas' "takings" claim that the new regulations made his beachfront property lose all economic value. When the Supreme Court accepted this theory, the decision galvanized property rights proponents but also set off a wave of criticism. Subsequent events have initiated some reconsideration of traditional takings theories, since the decision does not fit well into standard political, economic or fairness theories of takings. The author concludes that takings jurisprudence is best understood as part of the management of regulatory transitions.

property, takings, environment, land use, environment, coastal zone management

Abstract:
This article explores a fundamental problem that scientific research poses for environmental ethics. Scientific research has brought great gains to our knowledge of the environment, but the motivations for scientific research tend systematically to run counter to environmental protection. While research scientists may have many different individual motivations for their work, economic actors are most likely to pay attention to and fund scientific research agendas that can lead to economically valuable information, which means that the research results must be capable of belonging to some entity. However, environmental harms and benefits are generally not experienced as belonging to anyone, because their diffuseness makes them difficult to reduce to property. The result is a pattern in which scientific research veers first towards products that can be "propertized," and only later, if at all, towards the environmental consequences of such new products.

Environmental ethics need to address this research gap. The article explores some ways in which publicly funded research and regulatory programs might do so. It concludes that, in spite of ethical doubts that have been raised about market-based environmental regulation, such programs deserve closer attention; they may have ethical value that can offset ethical qualms, because they can motivate economic actors to channel research toward the environment, and thus help to narrow the research gap as between "propertized" goods and environmental goods.

Abstract:
What arguments make a case for the public domain in intellectual achievements? The arguments for private property in intellectual matters are rather thinner than the corresponding arguments for private property arguments for tangible things. Hence if there is a case for "publicness" even with tangible property, one would expect that case to be doubly powerful for intellectual achievements, where the private property rationale is weaker. This paper looks to the Roman law categories of publicness for tangible property, and finds analogies between certain types of tangible properties and intellectual endeavors. Though the Roman law of public property was sketchy, it was based on several different and quite subtle sets of reasons. Some things are public because they are appropriable but have not yet been reduced to possession (res nullius); some because like the air mantel they are physically incapable of privatization (res communes); some like roads and waterways because they serve network effects (res publicae); some - perhaps most interestingly - because they are sacred (res divini juris). This paper argues that intellectual property law effectively takes matters like expressions or inventions, which are physically incapable of individual ownership (res communes) and turns them into appropriable property (res nullius). But it also argues that the ultimate goal of this body of law is that intellectual endeavors over time become available to the public (res publicae) because of the positive networking effects from the easy exchange of ideas. The article concludes by noting that some iconic intellectual endeavors - notable the "canon" - become public for quasi-sacral reasons, as in the Roman law category of res divini juris.

Abstract:
In Shelley v. Kraemer (1948), the Supreme Court ruled that judicial action to enforce racially restrictive covenants (RRCs) was "state action" and hence impermissible. Nevertheless, the case continues to puzzle readers about why these ostensibly private agreements might be considered governmental, rather than simply a kind of private lawmaking, as in contracts. This article looks to the history of RRCs, as well as to modern scholarship on the differences between contract and property, to argue that Shelley's state action problem falls into place when one looks at RRCs specifically as property.

Since covenants running with the land, unlike contracts, may bind owners who never specifically agree to them, courts have traditionally imposed limits on these covenants to assure that the covenants are known to future purchasers and have continuing value. Many RRCs were very weak in meeting the traditional requirements, particularly the RRCs created by neighbor agreements in urban areas. State court enforcement of these technically weak covenants - as, for example, the covenants at stake in Shelley itself - suggested that in enforcing RRCs, judges were relaxing covenant rules in order to perpetrate racial exclusion. But a more systematic "state action" nexus derived from the property-law ability of RRCs to govern persons who never agreed to them. Property-law constraints on these non-consensual obligations required that a court that enforced such covenants had to assume that the restrictions would have continuing value for a substantial class of homeowners, and that assumption rested on widespread norms or customs of racial disparagement. But enforcement of a custom is itself state action. Modern property scholarship has focused on some of the reasons why: informal norms may be as strong as or even stronger than the formal law.

While the specific property-law aspects of RRCs were underplayed in the case law, there were glimpses of the traditional property concerns throughout the several decades of their legal existence. With closer attention, those property concerns could have made Shelley into a more structured, and hence more usable, doctrine of state action.

Abstract:
Interest in climate change has generated many proposals for cap-and-trade programs to control greenhouse gases. Longstanding American water rights regimes may have some lessons for these new proposals. Nineteenth century eastern water law focused on the cap - keeping water instream - and particularly illustrates the importance of mobilized constituencies in any program that entails capping resource use. Western water law focused on individualized and supposedly tradable rights, and its experience shows especially the significance of rights-definition both for the content and for the tradability of rights. As with water rights, both content and tradability in the new rights regimes are likely to match only imperfectly the goals that we want a cap-and-trade program to serve. For that reason, the historical experience of both water regimes also suggests the important role that surrounding and supporting institutions will play to facilitate trade under imperfect circumstances, and to reassure participants of the standards, accountability, and acceptability of the cap-and-trade regime.

water law, riparian rights, appropriative water rights, global warming, carbon trades, cap and trade

Abstract:
In this Article, the author assesses the role of science in a maturing modern environmental law. She describes this maturation process, beginning in the early 1970s with a first wave of "behavior-based" (BB) regulations. These regulations constrained the actions of resource-users, but generally they abandoned the very difficult task of linking the required constraints directly to an impact on environmental quality. BB regulations served a useful purpose in cutting back large pollution sources, but by the 1980s they came under increasing criticism for their lack of flexibility, including their inattentiveness to costs, to actual impact on quality, and to small and diffuse sources that could be cumulatively more damaging than large or easily controlled ones. In an attempt to remedy these problems, a now-maturing environmental law has turned increasingly but as yet incompletely to quality-based (QB) approaches. The QB regulations, which include market-based efforts, attempt to connect regulatory requirements to actual improvements in environmental quality. The newer QB approaches, however, entail much greater reliance on measurement of the relationship between resource uses and quality changes. This pattern in turn puts new demands on scientific knowledge, especially for ways to measure or model (a) small and scattered sources and their impacts, (b) marginal or cumulative effects of differing amounts of the same kinds of resource uses, and c) synergistic effects among different kinds of resource uses, particularly in connection with system-wide approaches. More generally, policymakers need the scientific community to be tolerant of the ways in which policy decisions are made under conditions of uncertainty. Finally, scientific study can be important to environmental policy simply by enhancing interest in the environmental questions.

environmental law,environmental science

Abstract:
In this introductory lecture to the "Symposium on The Properties of Carol Rose," the author discusses a panel topic that dropped away from the original program plan, that is, "Property and Language." She argues that though formally missing from the symposium, modes of language and communication - understood broadly as symbols, stories, and pictures - are critical to the understanding of property, since so much of property consists of the signaling of claims and responses to those signals. She further argues that language and communication in property can act as a bridge between the humanities and law-and-economics in the study of law more generally. She then examines some communicative issues that appear in the symposium's other topics - commons and the public domain; nature; takings; and gifts, bargains and power.

property, language, communication, symbolism, law and humanities, law and economics

Abstract:
This paper, one of several in a symposium on constitutional niches, discusses a niche within a niche: federalism considerations in theories of governmental takings of property. Several property theorists have argued that larger-scale and smaller-scale legislative bodies should be treated differently in takings jurisprudence, since these differently-scaled legislatures are likely to behave differently in dealing with individuals' property, and to respond differently to compensation requirements. The author agrees with this general proposition, but she sharply disagrees with the centralist drift of most of this literature, which would favor the national legislature while imposing strict takings requirements on local legislatures; she argues that these analyses overlook the existing constraints on smaller-scale governing bodies. Meanwhile, the courts have paid very little overt attention to federalism concerns of any kind in takings jurisprudence, string-citing cases about local, state, and national governments without distinguishing them. Instead of responding to federalism (and other) taking theories, actual takings jurisprudence vacillates between leniency toward all legislatures and contempt for them. The author argues, however, that federalism considerations might help courts to analyze the legislative process, and might be incorporated into takings jurisprudence by a distinction between Fifth Amendment and Fourteenth Amendment takings.

federalism, takings, property, local

Abstract:
Traditional servitudes running with the land bristled with complex legal limitations, but those limitations served three comprehensible overlapping goals: assuring that potential future landowners would learn about servitude obligations, that they could renegotiate obligations, and that the obligations themselves served useful purposes. This chapter argues that changes in recording and equity jurisprudence permitted simplification of servitude law. But it further argues that simplification has had dynamic effects: developers and other real estate innovators have responded by "pushing the envelope," extending servitudes into new areas, ultimately re-creating, in different guises, the problems addressed by older servitude law. It illustrates this dynamic with three different types of servitudes: the rise and demise of racially restrictive covenants; the use of servitudes in common interest communities; and the new uses of servitudes for conservation purposes.

servitudes,racial restrictions, common interest communities,conservation easements, covenants

Abstract:
Several new climate change proposals are now before Congress. This comment on Victor Flatt's forthcoming article, The Legislative Temperature on Climate Change, notes some surprises. The first surprise is that, unlike past environmental legislation, several bills showcase market-based regulation (MBR) without first going through a sequence of more dirigiste regulatory measures. This altered pattern undoubtedly reflects the perceived success of the U.S.'s cap-and-trade program for acid rain precursors, as well as other cap-and-trade legislation here and abroad. The second and bigger surprise is that some MBR proposals call for payment by the regulated entities, in the form of auctioned emission permits or even taxes, instead of purely grandfathered permits. This development may reflect divisions among the regulated entities. As between MBRs, most economists prefer emissions taxes to cap-and-trade, but cap-and-trade has some advantages, including prior experience and enhanced possibilities for paying less developed nations for participating-including avoiding burn-offs of tropical rain forests. Whatever MBR systems may emerge, however, they will only be as good as the monitoring systems for emission reductions and sequestrations.

climate change, global warming, environmental legislation, cap and trade, market-based regulation

Abstract:
Two types of public infrastructure-roads and property rights-are often thought critical to economic development; this article compares their impacts on the natural environment. Both roads and property rights draw unfamiliar persons to remote areas, undermine existing informal resource practices, and enhance wide commercial trade, creating wealth but also reducing local resource diversity. New kinds of property rights hold much promise for environmental protection, but unlike roads and conventional property rights, environmental property rights would be tasked with curtailing commerce, as in roadless areas and caps on resource use. This sharp divergence from the traditional commercial mission of public infrastructure can limit support for environmental property rights, creating an opening for fuzzier and more consultative versions of environmental property.

roads, transportation, property rights, environment, natural resources, forests, deforestation, greenhouse gases, climate change

Abstract:
Hernando DeSoto's book, The Mystery of Capital (2000), famously argued that informal land squatters should receive formal legal title, so that their titled property could give them access to capital and enable them to jumpstart economic development. This article explores two problems Mystery raises but leaves oddly unexamined: the necessary limits on claims to finite resources like land, and the potentially disruptive character of formal title for longstanding traditional communal property. This article discusses an array of possible reasons for Mystery's silence about these two issues, suggesting that Mystery, despite the great generality of its titling prescription, is still driven by the example of Peruvian internal migration that DeSoto explored in his earlier book, The Other Path (1989). The article concludes with a reminder of environmental and expressive issues that can accompany formalization of previously informal economic activities.

DeSoto, formal title, finite resources, traditional landholding

Abstract:
This brief retrospective identifies several of the constant ideas that have run through Robert Ellickson's property scholarship over a very long period. One theme that has emerged ever more strongly is the idea that property has a natural character: left to themselves, people organize their properties in a relatively limited number of predictable mixes and matches of individual and common ownership. Ellickson's earlier work on social norms and ancient law focused on neighbors and communities, while his latest work extends this idea of a natural order to the household. Implicit in much of his writing is a skepticism about governmental intervention, with its disruption of the norms upon which a natural set of property relationships emerge. But at bottom, the Ellicksonian natural order itself can only exist in the context of a certain kind of limited, non-interventionist ideal type of government.

Ellickson, property, norms

Abstract:
In these two books, an anthropologist and an historian both document an ever-increasing deployment of property categories in two quite different domains and times: native people's recent cultural claims in the first book, and the longer story of the United States' public rangelands in the second. Both authors take a jaundiced view of this increasing move to propertization, however, arguing that in their respective subjects, the growing use of property rhetoric paralyzes fluid and negotiated problem-solving while it also undermines respectful relationships among the parties. The reviewer suggests, however, that both authors may be underestimating the ability of property institutions to morph into new and useful forms - forms that not only can aid wide-ranging negotiations but also enhance respect and understanding among the participating persons and groups.

property, indigenous claims, intellectual property, public lands

Abstract:
Environmental issues, including global ones, are often analyzed as commons problems, soluble, according to Garrett Hardin and his successors, only by private property or governmental intervention. Having seen the expense and rigidity of governmental command- and-control regimes, many scholars have turned to what seems to be a private-property alternative, tradeable environmental allowances (TEAs), alone the model provide by the United States' acid rain reduction program. Some now inquire whether TEAs might be deployed in the international arena. Meanwhile, many institutional economists have disputed Hardin's assertion that only government or private property can solve commons problems, and they have demonstrated that an intermediate model of common property regimes (CPRs) have historically served to manage many traditional common resources, as in fisheries, grazing areas, and small-scale irrigation works. Although these community-based management regimes seem doubtful models for large- scale environmental issues, they may be useful insofar as global problems can be broken down into many smaller commons--local forests, fisheries etc.

This article compares and contrasts TEAs to CPRs as management techniques for globally-significant environmental problems. It takes up their respective approaches to setting overall limits on resource use, as well as their respective methods of defining, allocating and enforcing individual entitlements; it explores, among other things, how each type of regime copes with dynamic natural processes as well as changes in human demand for resources. The article argues that these very different strategies for environmental management show strengths and weaknesses that are in many respects mirror images, and it concludes with some examples of ways in which the two strategies can be combined.