Condemning the Decisions of the Past: Eminent Domain and Democratic Accountability

This Essay argues that there is a seldom-recognized purpose to eminent domain: preserving the ability of elected representatives to respond to the will of the people. The author proposes that eminent domain allows government to depart from the policy choices of administrations which came before and is therefore a tool for acquiring democratic legitimacy. He explores this theory by examining examples such as breaking up the adult use zones in Times Square and reclaiming New York\u27s waterfront, which had been essentially cut off by highways

Entrenching Environmentalism: Private Conservation Easements over Public Land

This Article examines how local governments can use private law mechanisms to entrench policy in ways that circumvent typical legal limitations. The Article explores in detail a specific example of a town donating conservation easements over property it owns to a third-party not-for-profit conservation organization to ensure that the property would not be developed in the future. This is nearly the functional equivalent of passing an unrepeatable zoning ordinance to restrict development, something existing antientrenchment rules would never permit. The Article discusses the costs and benefits of using such a device. It theorizes generally about the nature of entrenchment outside public law, and identifies anti-entrenchment protections designed to prevent the worst effects. It ultimately argues that eminent domain serves an important role in allowing subsequent governments to escape the precommitments of prior governments and proposes a modest modification in compensation rules to limit the extent to which conservation easements can entrench conservation

Public Entrenchment through Private Law: Binding Local Governments

Anti-entrenchment rules prevent governments from passing unrepeatable legislation and ensure that subsequent governments are free to revisit the policy choices of the past. However, governments—and local governments in particular—have become increasingly adept at using private law mechanisms like contracts and property conveyances to make binding precommitments into the future. Simultaneously, courts and state legislatures in recent years have reduced the availability of core de-entrenching tools, like eminent domain, that have traditionally allowed governments to recapture policymaking authority from the past. These changes threaten to shift democratic power intertempor ally. This Article develops a typology of mechanisms for public entrenchment through private law and private rights, as well as core anti-entrenchment protections embedded in the law. It then develops a framework for evaluating entrenchment concerns, comparing the costs of decreased flexibility against the benefits of increased reliance. Viewed through this framework, some recent changes in the law appear particularly problematic, from restrictions on eminent domain, to the rise of development rights, and creative forms of municipal finance like selling assets instead of incurring debt

From Social Recognition of Property to Political Recognition by the State: Peter Gerhart’s Property Law and Social Morality and the Evolution of Positive Rights

This short response argues that positive property rights—especially in a modern regulatory state—are inherently redistributive. When the State has a choice between different regulatory strategies for achieving public goals, constitutional limits like the Takings Clause should not rely on formal categories but must instead account explicitly for distributive concerns. At the end of the day, the State is an active, not passive, player in the definition of property rights, a role that comes with both constitutional limitations and requirements

The Wicked Problem of Zoning

Zoning is the quintessential wicked problem. Professors Rittel and Webber, writing in the 1970s, identified as “wicked” those problems that technocratic expertise cannot necessarily solve. Wicked problems arise when the very definition of the problem is contested and outcomes are not measured by “right and wrong” but rather by messier contests between winners and losers. This accurately characterizes the state of zoning and land use today. Zoning is under vigorous and sustained attack from all sides. Conservatives have long decried regulatory interference with private development rights. More recently, progressive housing advocates have begun to criticize zoning for making thriving cities unaffordable and for exacerbating racial segregation. Environmentalists argue that zoning is responsible for urban sprawl and for increasing carbon emissions. Economists blame zoning for restricting residential mobility, which limits fluidity in labor markets and thereby reduces the agglomeration surplus that thriving places like New York and San Francisco should be producing. And these are just some of the concerns. The breadth of these criticisms reveals the multiplicity of issues implicated by modern zoning—from the balance of public power and private rights, to distributional concerns, environmental interests, economic efficiency, and externalities along many dimensions. Most do not admit of a single “right” answer. Zoning is a wicked problem, indeed

Penn Central Take Two

Penn Central v. New York City is the most important regulatory takings case of all time. There, the Supreme Court upheld the historic preservation of Grand Central Terminal in part because the City offset the burden of the landmarking with a valuable new property interest—a transferable development right (TDR)—that could be sold to neighboring property. Extraordinarily, 1.2 million square feet of those very same TDRs, still unused for over forty years, are the subject of newly resolved takings litigation. According to the complaint, the TDRs that saved Grand Central were themselves taken by the government, which allegedly wiped out their value by permissively upzoning neighboring property where they could have been used. The litigation is not only a captivating postscript to Penn Central, but also a compelling context for examining the category of regulatory property more generally. Regulatory property—such as TDRs and pollution credits, for example—is increasingly important and valuable, but raises complicated trade-offs between the need for stability in property-based entitlements and policy flexibility in governance. This Article ultimately argues that the creation of regulatory property should not prevent policy changes far into the future

The Future of Natural Property Law: Comments on Eric Claeys\u27s Natural Property Rights

Professor Eric Claeys is among the most thoughtful modern proponents of natural property rights. His new book, provided to conference participants in draft form, is typical of his rigorously analytical approach. It is an impressive articulation of a natural rights-based account of property. It significantly advances the debate over natural rights and should be taken seriously even by those who do not find it entirely convincing. There are real-world political stakes in abstract-seeming questions of property theory because natural rights are often deployed to limit government regulation of property. Natural rights contrast with positivist accounts that locate the content of property rights in the substance of positive law. Where property rights come from the State, the State has broad authority to reconfigure those rights. Natural rights theorists, like Claeys, want property to be a bulwark against regulation and so insist that property has a pre-political core. That core is deeply contested, however. For rights to be natural, they must apply widely, if not universally, accepted, or at least be derivable in the abstract. To operate at this level, they generally underdetermine the substantive content of property law. Reasoning from natural rights, therefore, often devolves into contingent consequentialist or utilitarian arguments that look anything but natural. Often, natural law is deployed to rationalize existing legal doctrines and rights. But this can sometimes feel like a bit of a failure of imagination, assuming aspects of law are necessary or inherent when in fact, they may be quite contingent. If natural law reasoning can defend even dramatically different substantive property rights, it becomes worryingly thin as a justificatory enterprise. It risks sliding into outcome-driven and conclusory analyses

\u3cem\u3ePenn Central\u3c/em\u3e Take Two

Penn Central v. New York City is the most important regulatory takings case of all time. There, the Supreme Court upheld the historic preservation of Grand Central Terminal in part because the City offset the burden of the landmarking with a valuable new property interest—a transferable development right (TDR)—that could be sold to neighboring property. Extraordinarily, 1.2 million square feet of those very same TDRs, still unused for over forty years, are the subject of newly resolved takings litigation. According to the complaint, the TDRs that saved Grand Central were themselves taken by the government, which allegedly wiped out their value by permissively upzoning neighboring property where they could have been used. The litigation is not only a captivating postscript to Penn Central, but also a compelling context for examining the category of regulatory property more generally. Regulatory property—such as TDRs and pollution credits, for example—is increasingly important and valuable, but raises complicated trade-offs between the need for stability in property-based entitlements and policy flexibility in governance. This Article ultimately argues that the creation of regulatory property should not prevent policy changes far into the future

Passive Takings in Action

Nearly ten years ago, I argued that government inaction in certain cases can violate the Fifth Amendment Takings Clause.1 I dubbed these “passive takings.” This category of liability, if recognized, would mean that the government can violate the Constitution by failing to act.2 Or, to put it even more provocatively, it would mean that the Constitution does not confer exclusively negative rights against the government but at least sometimes compels the government to act to protect private property.3 The motivating example was sea level rise, and I pointed out the perversity of the conventional rule that the government can be liable only if it acts, even if doing nothing is the costliest choice of all.4 While passive takings seemed like a radical extension of the Takings Clause, I argued that these claims follow surprisingly naturally from existing takings doctrine and theory.5 Moreover, I predicted that they could generate broad judicial and political support.6 Conservative champions of property rights would embrace expanding takings liability, while progressives would welcome the legal leverage to compel the government to address pressing problems like sea level rise. Under this theory, the Takings Clause is so protective of private property rights that it sometimes requires the government to regulate its protection. Unfortunately, courts so far have not agreed.7 While the issue of takings liability for government inaction has now been raised in a number of cases, every appellate court to consider the question has quite resoundingly rejected the very idea of passive takings liability. In these cases—some high profile and important—courts have held that some government action is a prerequisite to a regulatory takings claim.

What Property Does

For centuries, scholars have wrestled with seemingly intractable problems about the nature of property. This Article offers a different approach. Instead of asking what property is, it asks what property does. And it argues that property protects people’s reliance on resources by moderating the pace of change. Modern scholarly accounts emphasize voluntary transactions as the source and purpose of reliance in property. Such “transactional reliance” implies strong, stable, and enduring rights. This Article argues that property law also reflects a very different source of reliance on resources, one that rises and falls simply with the passage of time. This new category of “evolutionary reliance” is at the heart of core property doctrines like adverse possession, waste, and the rule against perpetuities. Focusing on evolutionary reliance reveals a new vision of property, not as a bundle of sticks or a bare right to exclude, but instead as a nexus of competing and dynamic reliance interests that can change over time. This new vision has important conceptual and doctrinal consequences for common law doctrines and the Takings Clause, and it highlights the surprising dynamism and change in property