The Property Puzzle
41 Pages Posted: 27 Sep 2007 Last revised: 10 Aug 2008
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The Property Puzzle
Date Written: August 9, 2008
Abstract
This Article constructs a political and institutional model of property, offering an innovative approach for addressing some of property's most puzzling features. The central thesis of this Article is that regardless of our preferred substantive justifications for property, ¿dramatic¿ decisions about the giving or taking of property, such as the full-scale nonconsensual transfer of title and possession in land from one person to another, should be chiefly made by explicit and publicly-reasoned resolutions of governmental entities entrusted with the power and duty of collective decision making - chiefly legislative and administrative bodies - supervised in turn by the institution of judicial review.
In support of this thesis, the Article seeks to refute three prevailing, even if implicit, assumptions that guide much of current property theory: First, that governmental interventions with property are categorically more legitimate when they seek to redistribute preexisting property entitlements ¿downwards,¿ i.e. from the better-off to the less well-off. Second, that judicial review of legislative or regulatory decisions about property entrusts the reviewing court with substantially weaker powers than the court would have in adjudication of private disputes. Third, that the normative viability of the above-stated differential construction of property law necessarily hinges upon the feasibility of creating a comprehensive and unambiguous divide between private law and public law.
Keywords: property, jurisprudence, private law, public law, judicial review, Rawls, Kant, takings, eminent domain, legislation, constitution
JEL Classification: K11, K41
Suggested Citation: Suggested Citation