Property Rights, The Market, and Environmental Change in Twentieth-Century America

Abstract:     
In this wide-ranging interpretive essay, Professor Eric Freyfogle surveys the dominant trends over the past-century in the laws governing private land ownership in the United States. Late in the nineteenth century, he contends, property law had
come close to embracing an image of land chiefly as market asset, with ownership rights clearly defined, secure against governmental interference, and freely transferable. It also embraced a perspective in which landowners could use their lands intensively, in ways that generated harms, to neighbors and surrounding communities, that would not have been allowed a century earlier. That system of ownership, Freyfogle argues, generated substantial ill effects, and property law over the past century has gradually responded to them, in the process reshaping land ownership in ways quite different from simple, land-as-asset models. He distills six major themes or trends, including (i) the tailoring of rights to the land's natural features and the increasing protection of sensitive land uses, (ii) increasing recognition of private and public interests in all lands, without regard to nominal ownership, (iii) continued protection of existing land uses but decreasing protection for development rights, (iv) land-use planning at larger spatial scales and more ecologically oriented, and (v) increasing involvement of all levels of government in insisting that land-use practices not frustrate community needs. The end result is an ownership scheme reflecting both market and communal interests, with ownership rights subject to controls to protect the collective good from unbridled market forces.

Accepted Paper Series