Affirmative Constitutional Commitments: The State's Obligations to Property Owners

Brigham-Kanner Property Rights Conference Journal, Forthcoming

Brooklyn Law School, Legal Studies Paper No. 326

23 Pages Posted: 5 Feb 2013 Last revised: 25 Feb 2013

Date Written: February 4, 2013

Abstract

This Essay, prepared for the 2012 Brigham-Kanner Property Rights Conference, argues that social obligation theories in property generate previously unrecognized obligations on the State. Leading property scholars, like Hanoch Dagan, Greg Alexander, and Eduardo Peñalver, have argued that the institution of property contains affirmative duties to the community as well as negative rights. This Essay argues that those affirmative duties are two-way streets, and that moral bases for social obligations also generate reciprocal obligations on the State to protect property owners. The social obligation theories rely upon a dynamic not static vision of property rights. The community’s needs change, the conditions of ownership change, and the appropriate allocation of benefits and burdens within a society changes over time. Therefore, a legal obligation that is justified and permissible at the time it is enacted because it is consistent with moral obligations may become impermissible over time, even if the content of the legal obligation does not change. At the extreme, the State’s failure to respond to certain kinds of changes in the world can lead to a regulatory taking.

Keywords: property theory, takings, moral theory, Constitutional theory, affirmative obligations, social obligation norm

Suggested Citation

Serkin, Christopher, Affirmative Constitutional Commitments: The State's Obligations to Property Owners (February 4, 2013). Brigham-Kanner Property Rights Conference Journal, Forthcoming; Brooklyn Law School, Legal Studies Paper No. 326. Available at SSRN: https://ssrn.com/abstract=2211619

Christopher Serkin (Contact Author)

Vanderbilt Law School ( email )

131 21st Avenue South
Nashville, TN 37203
United States
615-343-6131 (Phone)

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