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Abstract:
This article examines an apparent paradox in comparative constitutional law. Property rights are not treated as a fundamental right in American constitutional law; they are, however, under the Basic Law (i.e., constitution) of Germany, a social-welfare state that otherwise gives less weight to property. The article uses this apparent paradox as a vehicle for considering the different reasons why constitutions protect property. It explains the difference between the German and American constitutional treatment of property on the basis of the quite different approaches taken in the two systems to the purposes of constitutional protection of property.

Abstract:
Human history is replete with examples of unjustified expropriations of property by conquering states and other transitory regimes. Only in modern times, however, have nations attempted systematically to remedy historical injustices by providing reparations to the dispossessed owners or their successors. From the aboriginal peoples of the Antipodes to the Native Americans of Canada and the U.S. to the European victims of the German and Soviet communism, groups of people who were stripped of their land and possessions by fraud or force are demanding, and in many cases getting, reparations for these injustices. The thesis of this paper is that the case for reparations for such expropriations of property is highly tenuous, both morally and in practical terms. Reparations claims in general face two serious challenges: human irrationality and the effects of time. While these challenges are not necessarily insuperable, they are formidable.

reparations, property, counterfactuals, time

Abstract:
Theories of property presuppose conceptions of community, and of the individual's relationship to community. In contrast to the dominant theories of community at work within most Anglo-American property theorizing, which view community obligations as fundamentally instrumental and contractual, we propose in this paper a theory that views the relationship between the individual and community as constitutive and substantive. Human beings' dependence on others to flourish imposes on political communities and their individual members a shared obligation to foster and contribute to the creation and maintenance of those structures necessary for that flourishing. This obligation in turn qualifies individual rights of property, empowering, and, under the right circumstances, compelling the state to take from some in order to safeguard access to needed resources for others.

Abstract:
This article seeks to provide in property legal theory an alternative to law-and-economics theory, the dominant mode of theorizing about property in contemporary legal scholarship. I call this alternative the social obligation theory.

I argue that American property law, both on the private and public sides, includes a social-obligation norm but that this norm has never been explicitly recognized as such nor systemically developed. I argue that a proper understanding of the social obligation explains a remarkably wide array of existing legal doctrine in American property law, ranging from the power of eminent domain to the modern public trust doctrine. In some cases social obligation reaches the same result as law-and-economics, but in other cases it will not. Even where it reaches the same result as law and economics, social obligation theory provides a superior explanation.

At a normative level I argue that the version of the social-obligation norm that I develop here is morally superior to other candidates for the social-obligation norm. It is so because it best promotes human flourishing, i.e., enabling individuals to live lives worthy of human dignity.

Drawing on Martha Nussbaum's capabilities approach (which itself is based on the Aristotelian notion that the human being is a social and political animal, not self-sufficient alone), the social obligation theory holds that all individuals have an obligation to others in their respective communities to promote the capabilities that are essential to human flourishing (e.g., freedom, practical reasoning). For property owners this has important consequences. If we accept the existence of an obligation to foster the capabilities necessary for human flourishing, and if we understand that obligation as extending to an obligation to share property, at least in surplus resources, in order to enhance the abilities of others to flourish, then it follows that, in the predictable absence of adequate voluntary transfers, the state should be empowered and may even be obligated to step in to compel the wealthy to share their surplus with the poor so that the latter can develop the necessary capabilities. None of this is meant to suggest that the state's power, even as it touches on the facilitation of the capabilities we are discussing, is unbounded. But the limits to the state's proper domain are supplied by the same principles that justify its action: the demands generated by the capabilities that facilitate human flourishing - freedom, practical rationality, and sociality, among others.

Abstract:
The three fascinating papers by Dick Helmholz, Jim Ely, and Mark Tushnet prompt me to ask, why was there so much talk among late 18th and 19th century American lawyers about property as a "natural" right and why has the language persisted today? More specifically, what work is the rhetoric of "natural property rights" intended to do? This is not the proper occasion for developing anything like complete answers to those questions, but I do want to offer three lines of thought that might begin to approach a fuller explanation of the puzzling persistence of natural-property-rights talk.

Abstract:
In this paper we develop two theses. First, we argue that uniform law proposals that ask courts and practitioners to abandon revered legal traditions and ways of thinking about estates and trusts, even when they are intent-furthering proposals, face resistance until in time the glories of the past and the risks of a new legal regime fade in importance in legal thought. Second, we argue that, especially within an environment in which states seek to gain competitive advantage over their counterparts in other states, the glories of the past and the risks of a new legal regime fade fastest when a uniform law proposal limits the effect of intent-defeating rules. Uniform laws tend to fall into three categories: (1) statutes that usurp older statutory-based laws; (2) statutes, typically remedial in nature, that reverse the common law; and (3) statutes that predominantly codify the common law. We look at examples of each to show how the interplay between revered legal traditions and donative freedom affects the reception of uniform law proposals. We also pay particular attention to intent-defeating common law doctrines and the risks that uniform law drafters face when they attempt to codify them in an environment where there is stiff jurisdictional competition for estate planning business.

Abstract:
What would a progressive theory of property look like? Although such a theory might take root within any number of specific normative frameworks, this Statement of Progressive Property outlines several features progressive theories of property should have in common. The Statement argues that we should understand property as both an idea and an institution, that property confers power and shapes community, both in its legal and social dimensions, and that property should be understood as serving plural and incommensurable values whose accommodation is possible through reasoned deliberation and practical judgment.

Property, Property Theory

Abstract:
The question whether to include a property clause in a new constitution or charter of entrenched rights has been highly controversial in recent years. Some nations, such as Canada, have decided not to include property as an entrenched rights, while other nations, such as South Africa, have included property clauses in their new constitutions. This book examines the questions of whether and why property should be made the matter of constitutional protection from a comparative perspective. Several insights emerge from this perspective. One is that a society's background legal and political traditions and culture have at least as much effect on the security and stability of property holdings as a constitutional property clause (or the absence of such a clause) has. At the same time, while historical legal traditions and culture exert a strong influence on property, they are not determinative. Constitutional text may matter. One area in which text may matter is the role of the social-obligation aspect of property. Comparing American takings law with its counterparts in other countries, notably Germany and South Africa, suggests the importance of text in the scope and coherence of the social-obligation norm in constitutional property jurisprudence. Comparative analysis further discloses several doctrinal practices that American takings law might borrow from other jurisdictions that have the potential for contributing to the construction of a more coherent and transparent takings jurisprudence.

Abstract:
Law-and-economics scholars have argued that there is nothing unique about fiduciary relationships. These scholars make two claims. First, they argue that, analytically, fiduciary relationships are simply contractual arrangements with unusually high transaction costs. Second, they contend that courts in fact apply the same analysis to fiduciary relationships as they do to non-fiduciary contractual relationships. This paper addresses the second, behavioral claims. Accepting for the sake of argument the analytical claim, the paper contends that cognitive biases lead courts to apply a different mode of analysis to fiduciary relationships than they do to contractual relationships. In cases involving alleged breaches of fiduciary duties, courts apply a "top-down" mode of cognitive analysis, in contrast with the "bottom-up," data-driven cognitive mode that characterizes judicial analysis of breach of contract claims. The essay's hypothesis is that fiduciaries are more apt to be found liable of breach of fiduciary duties than are contract parties who are alleged to have violated some contractual duty.