Thursday, November 4, 2010
Craig Anthony (Tony) Arnold (Louisville) has posted Legal Castles in the Sand: The Evolution of Property Law, Culture, and Ecology in Coastal Lands, forthcoming in Syracuse Law Review, Vol. 61, No. 2 (2010-11). The abstract:
U.S. society frequently turns to property law to mediate the various social and ecological dynamics of complex and evolving environments like coastal areas, which are places of transition subject to both natural and human changes. Furthermore, U.S. society frequently turns to constitutional takings doctrines to mediate the dynamics of property law. However, property law and takings cases can be maladaptive to the evolutionary dynamics of coastal lands when they fail to contemplate the ecological and social conditions and dynamics of the objects of property rights and takings claims. In particular, legal abstractions, such as the metaphor of property as a “bundle of rights,” disconnect property and takings law from its context and real-world functions.
An example of three maladaptive responses to coastal land management can be found in the three opinions of the U.S. Supreme Court in Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection. In the case, all eight participating Justices agreed that the Florida Supreme Court’s validation of the State of Florida’s establishment of a boundary-fixing “erosion control line” was not a radical departure from Florida precedent on coastal land ownership rights. However, the Court split 4-4 over whether the Takings Clause of the U.S. Constitution creates a potential claim of a “judicial taking,” producing three different opinions about judicial takings and the relationships of federal courts to state judicial changes in property law. In each of the three opinions in Stop the Beach Renourishment, the Justices have built “legal castles in the sand”: artificial constructs that will not stand up to the inevitability of change. Each opinion is poorly suited for mediating property issues in coastal lands because it is built on a legal-centric abstraction mismatched to the complex realities of coastal land use.
This article argues that courts should shape property doctrines and decide takings cases with regard for the concrete context in which those doctrines and cases arise, particularly ecological and socio-cultural dynamics. A strong theory of judicial takings, just like many sweeping and aggressive protections of private property autonomy and power, is likely to over-protect private property. However, a weak theory of judicial takings, just like many sweeping and aggressive protections of government or public authority and power, is likely to under-protect private property. In both cases, serious harms to both ecological health and integrity and socio-cultural health and integrity are likely, even if the specific harms vary. The issue is not resistance to change versus unconstrained and rapid change. Instead, the issue is about identifying and facilitating change that is right for and adaptive to the particular evolving context in which the tensions over property interests, land uses, and legal institutions arise. In particular, the object-regarding and context-considering concept of property as a “web of interests” is likely to be more adaptive to change within complex and interconnected ecological and social systems, particularly in sensitive environments like coastal lands, than property concepts that rely on legal-centric abstractions.