Saturday, May 18, 2013
Mark Edwards (William Mitchell) has posted The Paradoxes of Restitution, forthcoming in the West Virginia Law Review. The abstract:
Restitution following mass dispossession is often considered both ideal and impossible. Why? This article identifies two previously unnamed paradoxes that undermine the possibility of restitution.
First, both dispossession and restitution depend on the social construction of rights-worthiness. Over time, people once considered unworthy of property rights ‘become’ worthy of them. However, time also corrodes the practicality and moral weight of restitution claims. By the time the dispossessed ‘become’ worthy of property rights, restitution claims are no longer practically or morally viable. This is the time-unworthiness paradox.
Second, restitution claims are undermined by the concept of collective responsibility. People are sometimes dispossessed because collective responsibility is unjustly imposed on them for wrongs committed by a few members of a group. But restitution may require the dispossession of innocent current occupiers of land – thus imposing a type of collective responsibility on them. Therefore, restitution can be seen as committing the very wrong it purports to right. This is the collective responsibility paradox.
Both paradoxes can be overcome, but only if we recognize the rights-worthiness of others before time fatally corrodes the viability of restitution. We must also draw a careful distinction between the imposition of collective rights-unworthiness, which results in the mass dispossession of others, and the voluntary acceptance of collective responsibility, which results in the restitution of others.
After developing these ideas, the article examines them in the context of a particularly difficult and intractable case of dispossession and restitution. It draws upon interviews with restitution claimants whose stories reveal the paradoxes of restitution.
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
- 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)
- First Principles for Regulating the Sharing Economy