Tuesday, April 13, 2010
Vincent Chiappetta (Willamette) has posted The (Practical) Meaning of Property, Willamette Law Review, Vol. 46 (2009). The abstract:
The paper argues that defining property functionally – as a flexible tool for implementing all manner of social decisions allocating control over available resources rather than in terms of fixed attributes or outcomes – substantially clarifies related public policy debate. The approach reveals we should reject characterizations of property as “good or bad” or as a “yes-or-no” proposition to which we react as well as the assumption that those with whom we disagree about its proper deployment are fools badly in need of enlightenment, or worse. These false dichotomies distract us from the core difficulty in property debate – our honestly and strongly held but conflicting beliefs regarding what constitute “just” resource control outcomes; a disagreement we should acknowledge cannot be fully resolved by reason, much less passion. Finally, the functional approach keeps us resolutely focused on the practical effects of our respective normative positions and, in particular, on the consequences if the resulting property rules fail to adequately “deliver the goods” to all concerned. When a society’s property law does not produce “enough and good enough for all” those suffering the adverse effects must ultimately abandon the joint enterprise, a process history shows to be both unpleasant and unpredictable regarding winners and losers (if those terms can be said to apply at all). This practical distributional inquiry does not (and cannot) mandate individual or group action, but it does merit serious consideration every time we find ourselves debating how “best” to use property law to allocate control over increasingly scarce and contested resources.
This blog is an Amazon affiliate. Help support Land Use Prof Blog by making purchases through Amazon links on this site at no cost to you.
- Stephen R. Miller on Why are building inspectors so often on the take?
- Josh Hightree on What makes people leave rural areas, and what makes them stay
- Jessica Shoemaker on What makes people leave rural areas, and what makes them stay
- Jamie Baker Roskie on Why are building inspectors so often on the take?
- Stephen R. Miller on What makes people leave rural areas, and what makes them stay
- Land Use Law-Related Articles Posted on SSRN in February
- March 4-6: Stanford 2015 Rural West Conference: Preservation and Transformation: The Future of the Rural West
- March 3 - J.B. Ruhl to deliver Boehl Distinguished Lecture in Land Use Policy at U Louisville Law
- Is this blog post "advertising"? California's bar proposes bright-line rule for regulating attorney blogs
- Two upcoming RMMLF events: 61st Annual Institute (July 16-18 in Anchorage) and 17th Institute for Natural Resources Law Teachers (May 27-29 at Utah Law)