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Abstract:
This article, which is the first comprehensive discussion of the American legal concept of home, makes two major contributions. First, the article systematically examines how homes are treated more favorably than other types of property in a wide range of legal contexts, including criminal law and procedure, torts, privacy, landlord-tenant, debtor-creditor, family law, and income taxation. Second, the article considers the normative issue of whether this favorable treatment is justified. The article draws from material on the psychological concept of home and the cultural history of home throughout this analysis, providing insight into the interests at stake in various legal issues involving the home.

The article concludes that homes are different from other types of property and give rise to legal interests deserving of special legal protection, but that these interests can be outweighed by competing interests in particular legal contexts. The result is that in many contexts special legal treatment of homes is justified. In other contexts, for example residential rent control, the strength of competing interests means that the law overprotects the home. In still other contexts, for example eminent domain law as embodied by the Supreme Court's recent decision in Kelo v. New London, the law tends to underprotect the home.

Home, psychology of place, psychology of home, search and seizure, fourth amendment, privacy, castle, self-defence, rent control, landlord-tenant, takings, kelo, eminent domain, public use, just compensation, homestead, mortgage, income tax, equitable distribution, personhood, property, radin

Abstract:
Private property is often defended on the basis that it promotes individual freedom. Discussion of this subject has typically taken place in the context of contentious debates over the legitimacy of government interference with private property, especially government regulation of land use and redistributive taxation. Pro-property, anti-interference advocates tend to suggest that there is a strong relationship between property and freedom. Those on the other side of the debate tend to be more skeptical. The political philosopher G.A. Cohen, for example, has asserted that "the familiar idea that private property and freedom are conceptually connected is an ideological illusion."

In this Essay, I argue against both sides of this intractable debate. Property and freedom are inextricably linked, but a strong relationship between property and freedom does not immunize property from government interference. To support these positions, I shift the discussion of property and freedom away from debates about the inviolability of property, and focus instead on the institutional relationship between property and freedom. Accordingly, I focus on two questions that have often been neglected in the heat of the debate over government interference with property: to what degree does the institution of private property protect individual freedom, and to what degree is individual freedom possible without the institution of private property?

Property as an institution promotes individual freedom in three ways: by creating a zone of individual autonomy and privacy; by distributing power; and by providing access to the resources that people need to be free. The discussion of these institutional connections between property and freedom draws out three important substantive points. First, individual freedom depends, in an institutional sense, on private property. Second, because the relationship between property and freedom is complex, different types of property (e.g., land versus money) and different aspects of property ownership (e.g., the ability to exclude others versus the ability to transfer to another owner) promote freedom in different ways. Third, and most importantly, the relationship between property and freedom in this context may be used to support, rather than oppose, arguments for the redistribution of property. Indeed, a strong connection between property and freedom can be maintained without any reference whatsoever to libertarian or other theories that hold that property rights should be immune from state interference.

Using these relationships between property and freedom, I then critique two of John Rawls's positions on property. Rawls asserted that the basic liberties protected by his First Principle of Justice include the right to hold personal property, but not productive property; and that either a property-owning democracy or a liberal socialist regime could comport with his two principles of justice. In my critique of Rawls, I first explain why the concept of freedom embodied by the First Principle of Justice provides a better defense of private property than the inequality allowed by the so-called difference principle in the Second Principle of Justice. I then use the connections between property and freedom discussed earlier in the Essay, and Rawls's own positions on freedom, to argue that Rawls's positions on property are wrong, that the First Principle must include the right to hold productive property, and that therefore only a property-owning democracy would satisfy the requirements of the two principles of justice.

property, freedom, rawls, liberty, redistribution

Abstract:
This short essay discusses the Supreme Court's recent decision in Lingle v. Chevron and its potential long-term impact on the Court's regulatory takings doctrine. Lingle involved a narrow (though important) issue of takings law, and on the surface it appears to be a relatively modest case. A deeper look, however, reveals that in its separation of substantive due process and regulatory takings, Lingle has tremendous potential to clarify regulatory takings doctrine. If this potential is fulfilled, Lingle is likely to be far more significant in the long term than Kelo v. City of New London, which has dominated the commentary about the Court's recent takings decisions. Lingle may also have the counter-intuitive effect of helping property-rights advocates (who were the putative losers in the case) by undercutting the precedential value of cases that help the government in takings battles.

Lingle, Chevron, Kelo, takings, just compensation, Mahon, substantive due process

Abstract:
This Essay draws on the Supreme Court's conference notes in Berman v. Parker and Hawaii Housing Authority v. Midkiff to contest Justice O'Connor's assertion in her Kelo v. City of New London dissent that there is a sense in which this troubling result [in Kelo] follows from errant language in Berman and Midkiff. The conference notes in those cases in fact reveal that the Court used broad language intentionally (in Berman) and was aware of the risk of broad language (in Midkiff). Further, the broad language that O'Connor found objectionable was essential to the Court's holdings in Berman and Midkiff, and the cases could not have been decided on narrower grounds. Justice O'Connor's suggestion that the broad language in Berman and Midkiff was the result of a judicial slip of the pen therefore is incorrect.

The Court's decisions in Berman and Midkiff consciously avoided the hard questions presented by the issue of public use and deferred those questions to the legislature. The intentional abdication of the judicial role in reviewing issues of public use reflected in the Berman and Midkiff conference notes reinforce the position that Kelo is entirely consistent with the Supreme Court's public use precedents. A more compelling dissent by Justice O'Connor therefore would have argued not that Berman and Midkiff contained loose language, but that with the benefit of hindsight Berman and Midkiff's deference to the legislature was a mistake that should be corrected by overruling the prior cases.

kelo, takings, public use, conference notes, O'Connor, Berman, Midkiff, Urban renewal

Abstract:
Recent social science research has found that in many scenarios, increases in group size and diversity have a negative impact on cooperation and other prosocial behavior. A related study by the political scientist Robert Putnam has created a firestorm of debate within the past few months about the negative effects of diversity on the social fabric.

This essay addresses a subset of this larger debate. It looks to recent social science research to explore how and why group size and diversity impact cooperation and other prosocial behaviors. It then considers how to take the results of this research into account in designing legal structures, either by placing people into contexts that foster cooperation or by taking affirmative steps to mitigate the negative impacts of increases in group size or diversity. Increases of group size and diversity tend to undercut the informal mechanisms that communities use to encourage cooperation, and in many circumstances these mechanisms can be replaced by legal structures. To illustrate the potential for using the design of legal structures to encourage prosocial behavior, the essay draws on examples including residential community organizations, the management of natural resources, corporate boards, and the private microlending groups organized by the Nobel-Peace-Prize-winning Grameen Bank.

Putnam, group size, heterogeneity, diversity, common interest community, residence, corporate board, corporate governance, Grameen, microlending, natural resources, cooperation, prosocial behavior, helping

Abstract:
One of the more enduring puzzles in constitutional law is the problem of regulatory takings, and it has become something of a ritual to begin articles on the issue by noting the widespread confusion that the doctrine has caused. This Article seeks to clarify the regulatory takings debate by examining the scope and nature of the police power and discussing its relationship with the Just Compensation Clause.

The recent increase in federal regulation notwithstanding, the regulatory takings doctrine is primarily the product of challenges to state police power regulations. But despite the centrality of the police power to the problem of regulatory takings, an observation made nearly one hundred years ago still holds true today: No phrase is more frequently used and at the same time less understood. Contemporary regulatory takings jurisprudence is plagued by misunderstandings about the police power, in part because no one has seriously attempted to analyze or define the police power since 1907 - fifteen years before the landmark regulatory takings case Pennsylvania Coal v. Mahon was decided by the United States Supreme Court.

The uncertainty and confusion over the police power, however, is unnecessary. The term police power was introduced and defined by the Supreme Court, and has a clear meaning as a concept of American constitutional law - though one that unfortunately has been ignored in contemporary takings jurisprudence. The purpose of this Article is to explore the precise nature of the police power and its lessons for clarifying the regulatory takings debate.

Part I of this Article addresses the question: What is the police power? It begins by discussing the early federalism cases in which the Supreme Court introduced and defined the phrase police power to be synonymous with the entirety of the states' sovereign power. It then examines the practical development of police regulations in the state courts, including the landmark decision Commonwealth v. Alger and the evolution from community-based common-law regulation toward the modern regulatory state. Finally, it discusses various attempts to limit the scope of the police power, from Lochner-era substantive due process to various academic definitions of the police power based on political theory. Part I concludes that the police power, as a concept of American constitutional law, is synonymous with the entirety of the sovereign power of the states that remained after the constitutional grant of limited powers to the federal government.

Part II discusses the interaction between the police power and the Just Compensation Clause. It begins with the ambiguous foundation of modern regulatory takings, Justice Holmes's cryptic opinion in Pennsylvania Coal v. Mahon. Placing the holding in Mahon in the context of Holmes's prior writings on the police power and his substantive due process dissents shows that Holmes understood the broad scope of the police power while at the same time rejected the formalistic rule that exercises of the police power could never be takings. Part II then examines the historical record and text of the Just Compensation Clause, and concludes that the central holding in Mahon - that exercises of the police power can in some circumstances be takings - is correct when an exercise of the police power renders the property in question valueless, but not when the exercise of the police power results in a lesser diminution of the property's value.

Part II then looks to the nature and scope of the police power, and the history and text of the Just Compensation Clause, to make a few observations that help to clarify the regulatory takings problem. Much of the confusion in regulatory takings is due to a misunderstanding of the nature and scope of the police power, which has led to the regulatory takings question being framed in incorrect terms. Most significantly, recognition that the broad scope of the police power is not tied to the prevention of harm helps demonstrate that the character of the government act in question should have no place in the regulatory takings inquiry, and that its central role in contemporary regulatory takings cases is misplaced. When properly stated, the regulatory takings question should simply ask whether the government act has rendered the property in question valueless - if the answer is yes, then compensation is due. Finally, Part II concludes that despite their analytical incoherence, the Supreme Court's contemporary takings cases have reached results that are consistent with both the historical record and text of the Just Compensation Clause.

Takings, police power, mahon, holmes, just compensation, substantive due process, lochner, alger, freund, teideman

Abstract:
This testimony was given to the Pennsylvania House of Representatives State Government Committee at a public hearing held to consider a proposed legislative response to the Supreme Court's decision in Kelo v. New London. The testimony suggests that legislators consider giving homes more protection than other types of property in the eminent domain context. It also suggests a number of steps the legislature could take to protect private property from eminent domain abuse while maintaining local governments' ability to use eminent domain to further legitimate public interests. Similar suggestions were made in a more academic context in my article "Home as a Legal Concept," also available on SSRN (http://ssrn.com/abstract=801245).

Kelo, eminent domain, home, takings, just compensation

Abstract:
The American law of estates and future interests is tremendously complex. This complexity is unjustifiable because it serves no modern purpose. Many of the distinctions between types of interests in the current system of ownership are vestiges of ancient English feudal concepts and owe their place in the law solely to historical accident. This article develops a proposed model law designed to simplify and modernize the basic property ownership system. The proposals made here differ substantially from prior suggestions for legislative reform, and reflect issues of enactability and retroactivity that previously have been neglected in the literature. The article both builds on and critiques the recently-released preliminary draft of Division VII of the Restatement Third, Property (Wills and Other Donative Transfers), and explains why a model law will be more effective than a Restatement in achieving modernization and reform of the estates and future interests system.

property, future interests, donative transfers, estates, Restatement Third, Property

Abstract:
This short encyclopedia entry discusses Hadacheck v. Sebastian and its relevance to contemporary regulatory takings jurisprudence. The entry describes the Hadacheck litigation and the treatment of Hadacheck in the Supreme Court's more recent regulatory takings cases. It notes four reasons why caution should be used before applying Hadacheck to contemporary regulatory takings issues: (1) the case is ambiguous about the diminution in value actually suffered by the plaintiff; (2) Hadacheck was decided before Pennsylvania Coal v. Mahon, which arguably marked a shift in regulatory takings law; (3) the Court's holding in Lucas v. South Carolina Coastal Council that a total diminution in value is a per se taking undercuts one possible reading of Hadacheck; and (4) that the Court's recent decision in Lingle v. Chevron suggests that the substantive due process analysis in early cases like Hadacheck should not be a part of the regulatory takings analysis.

takings, just compensation, hadacheck, mahon, lucas, penn central

Abstract:
Intuitions often play a significant role in shaping debate about legal issues. This is particularly the case when homes and homeownership are involved, because the experience of everyday life gives lawyers and legal scholars a foundation for intuitive judgment. Intuitions, however, can be unreliable and misleading. They therefore provide a shaky basis for legal decisionmaking.

This brief essay, published as part of a special issue on Property and Psychology, begins by suggesting that the legal academy should follow the lead of the Experimental Philosophy movement and actively solicit empirical research on human behavior relevant to legal issues. It then describes a series of legal issues relating to the home that could benefit from this type of research, and concludes by suggesting that researchers interested in the psychology of home seek collaborators within the legal academy to develop legally-informed empirical studies.

home, experimental philosophy, eminent domain, foreclosure

Abstract:
Skipper and Millstein (2005) argued that existing conceptions of mechanisms failed to "get at" natural selection, but left open the possibility that a refined conception of mechanisms could resolve the problems that they identified. I respond to Skipper and Millstein, and argue that while many of their points have merit, their objections can be overcome and that natural selection can be characterized as a mechanism. In making this argument, I discuss the role of regularity in mechanisms, and develop an account of stochastic (i.e., probabilistic) mechanisms. Explaining the phenomenon of adaptation through the mechanism of natural selection illustrates the power and flexibility of using mechanistic strategies to explain natural phenomena.

Natural selection, mechanism, explanation