Friday, June 23, 2006
Gregory S. Alexander (Cornell Law School) has posted The Global Debate Over Constitutional Property: Lessons for American Takings Jurisprudence on SSRN. Here's the abstract:
The question whether to include a property clause in a new constitution or charter of entrenched rights has been highly controversial in recent years. Some nations, such as Canada, have decided not to include property as an entrenched rights, while other nations, such as South Africa, have included property clauses in their new constitutions. This book examines the questions of whether and why property should be made the matter of constitutional protection from a comparative perspective. Several insights emerge from this perspective. One is that a society's background legal and political traditions and culture has at least as much effect on the security and stability of property holdings as a constitutional property clause (or the absence of such a clause) has. At the same time, while historical legal traditions and culture exert a strong influence on property, they are not determinative. Constitutional text may matter. One area in which text may matter is the role of the social-obligation aspect of property. Comparing American takings law with its counterparts in other countries, notably Germany and South Africa, suggests the importance of text in the scope and coherence of the social-obligation norm in constitutional property jurisprudence. Comparative analysis further discloses several doctrinal practices that American takings law might borrow from other jurisdictions that have the potential for contributing to the construction of a more coherent and transparent takings jurisprudence.
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