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Abstract:
The bogeyman of institutions and theories that make a place for community in property law is the "Blackstonian conception" of property, based on Blackstone's famous identification of property with "that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe."

Yet, as anyone who has even skimmed Blackstone's Commentaries quickly realizes, it is clear that the great expositor of the common law did not believe that this absolutist and individualist conception squared with the actual institution of property found in English law. Replete with descriptions and justifications of doctrines that recognized and enforced a complex web of individual and community interests in land and other resources, Blackstone's account seems much closer to the "bundle of rights" approach popularized by the American legal realists than to the "absolute dominion" view associated with his name. Why has exclusive dominion as a model for property, then, come to be associated with Blackstone, of all people?

This Article seeks, first of all, to explain why Blackstone would first characterize property as "sole and despotic dominion," and then go on to illustrate, over several hundred pages, the falsity of this definition. The primary goal of the paper, though, is to examine the ways in which Blackstone was invoked by later jurists as authority for property-law propositions. In particular, the Article examines how Blackstone has been cited by English and American courts and writers, whether in connection with the "sole and despotic dominion view" or rather in support of doctrines more in keeping with a more complex view of property. Finally, it proposes an answer to the question set out in the title, identifying the historical context and motivations for the identification of the absolute, individualistic view of property with Blackstone in particular.

Blackstone, property, private property, absolute dominion, sole and despotic dominion, bundle of rights

Abstract:
Contemporary debates over the worldwide trend toward privatization of water systems and supplies have a historical precedent in the controversies that raged in Gilded Age America over the control of irrigation-canal systems by eastern- and foreign-owned corporations. This Article shows how the law developed in Colorado in this period advanced the agrarian ideal of wide distribution of property in water by carrying forward the principles of the appropriation doctrine.

The involvement of corporations funded by outside capital in Western water projects was seen as a threat to the contemporary yeoman ideal of small, family farms, an ideal that many hoped would solve the social and economic ills of the time. This Article discusses several concrete legal issues that arose in Colorado in the 1880s and '90s, demonstrating how the principle of public ownership of water and the use requirement were applied to curtail the power of water corporations and preserve the profits of irrigated agriculture for small-scale farmers.

In conclusion, the Article discusses several implications of this early western water-corporation law. First, it calls into question the view of Gilded Age law as primarily serving the interests of the wealthy and powerful. Second, it challenges the common typology of property, in which private property is opposed with public, demonstrating that these two ideas can be in harmony, with the more important dichotomy dividing widespread, diffuse ownership from concentrated ownership. Finally, the Article briefly points to several implications of this history for today's water-privatization controversies.

water law, prior appropriation, privatization, water corporations, property law, natural resources, irrigation, corporate regulation, Gilded Age, western frontier, environmental law

Abstract:
The water-law doctrine of prior appropriation, developed in Colorado in the late 1800s, has received much scholarly attention, due to the claimed efficiency advantages of the system of private property rights it is supposed to have instituted. Supporters and critics alike have associated the doctrine with values such as the preference for private over common property, the privatization of the public domain, and the facilitation of markets in natural resources.

This article relies on analysis of previously unexamined historical sources to demonstrate that the appropriation doctrine actually was intended to express contemporary radical, agrarian ideals of broadly distributed property and antimonopolism. The unofficial codes of the Colorado mining districts, conventionally thought to be the source of the doctrine's first in time, first in right principle, focused primarily on rules designed to ensure wide distribution of property. Similarly, the statutes of the Colorado Territory, the water-rights provisions of the state constitution of 1876, and early judicial decisions culminating in the leading case of Coffin v. Left Hand Ditch Co., were mainly concerned to prevent control of water by capitalists, and did so by breaking the common-law monopoly of riparian owners and opening access to the resource to all bona fide users.

This historical analysis raises the broader question of whether distributive justice has been adequately considered, alongside efficiency and public choice, as a factor in explaining the evolution of property-rights regimes.

water law, prior appropriation, first possession, miners' laws, agrarianism, distributive justice, property theory

Abstract:
This comment on an article by Ron Harris and Michael Crystal argues that on the theoretical as well as the historical level, there is no reason to assume that a legal system, like a sort of organism, wishes to replicate itself or propogate its genes, nor that it will typically do so, even in the supposedly hospitable environment of colonial relations. While legal transplantation in the British Empire was rampant, it was also multidirectional, with jurisdictions from around the world borrowing freely from each other, from the legal systems of other imperial territories as well as from outside the empire. More generally, the inherent complexity of legislating, even in the colonial context, makes harmonization an unlikely prospect in any empire.

legal transplants, harmonization, colonial law, British Empire

Abstract:
What is the connection between the property regime under which the law allocates water, and the degree of protection afforded by the law to public, “instream uses” of water‘ More concretely, to what extent is it true that a system of water law based on private property tends to impede protection of water-related natural values, while public ownership facilitates such conservation‘

This paper addresses these questions through a comparative study of water law in Israel, where water is the property of the state, and the western United States, where water law is based on private property rights. The law of the western United States is shown to have certain advantages over its Israeli counterpart, due to the judicial development of doctrines which recognize “private” rights owned by the public. The ultimate conclusion is that the public/private property distinction is of little significance if protection of instream uses is the goal; either type of property can be used for public-regarding purposes or turned to advancing private interest exclusively.

water, prior appropriation, private property, public property, Israel, reserved rights, public trust, instream flow

Abstract:
This draft chapter for a collection of essays on Israeli environmental history argues that the shape and structure of Israeli environmental law, particularly its relative lack of uniform “command and control” emissions or technology standards, is directly traceable to the country’s past as a territory of the British Empire. Even much supposedly modern Israeli legislation is actually based on models inherited from the Palestine Mandate, including a reliance on nuisance law, Continental-style ad-hoc licensing of pollution, and ambitious centralized planning of land and water use. Moreover, even contemporary developments in Israeli environmental law, such as the turn to economic instruments, can be understood as deriving from the country’s colonial past. Comments and suggestions are welcome!

environmental law, history of environmental law, Israel, Palestine, command and control, nuisance, British, British Empire, licensing, centralized planning, overrides, colonial, postcolonial, economic tools, environmental enforcement