Property-as-Society

59 Pages Posted: 14 Nov 2018

Date Written: November 1, 2018

Abstract

Modern regulatory takings disputes present a key battleground for competing conceptions of property. This Article offers the following account of the three leading theories: a libertarian view sees property as creating a sphere of individual freedom and control (property-as-liberty); a pecuniary view sees property as a tool of economic investment (property-as-investment); and a progressive view sees property as serving a wide range of evolving communal values that include, but are not limited to, those advanced under both the libertarian and pecuniary conceptions (property-as-society). Against this backdrop, the Article offers two contentions. First, on normative grounds, it asserts that the conception of property-as-society presents a more useful structure for assessing whether an allocative choice is fair and just absent compensation than the conceptions of property-as-liberty and property-as-investment. Second, on doctrinal grounds, it suggests that the property-as-liberty conception has fallen from grace in takings jurisprudence since its peak in Lucas v. South Carolina Coastal Council in 1992; moreover, while the property-as-investment understanding remains of some force, the property-as-society conception has ascended to a position of jurisprudential prominence, as most recently evidenced in both the majority and the dissenting opinions in the 2017 matter of Murr v. Wisconsin.

Keywords: property, property theory, progressive property, property-as-society, property-as-liberty, property-as-investment, eminent domain, takings, regulatory takings, inverse condemnation, Lucas, Murr

JEL Classification: K10, K11

Suggested Citation

Mulvaney, Timothy M., Property-as-Society (November 1, 2018). Wisconsin Law Review, Vol. 2019, Forthcoming; Texas A&M University School of Law Legal Studies Research Paper No. 18-57. Available at SSRN: https://ssrn.com/abstract=3283953

Timothy M. Mulvaney (Contact Author)

Texas A&M University School of Law ( email )

1515 Commerce St.
Fort Worth, TX 76102
United States

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