Tuesday, September 4, 2007

Lehavi on the Property Puzzle

Amnon Lehavi (Interdisciplinary Center Herzliyah - Radzyner School of Law) has posted The Property Puzzle on SSRN.  Here's the abstract:

This Essay constructs a political and institutional model of property, offering an innovative approach for addressing some of property's most puzzling features. The central thesis of this Essay is that regardless of our preferred substantive justifications for property, “dramatic” decisions about the giving or taking of property, such as the full-scale nonconsensual transfer of title and possession in land from one person to another, should be chiefly made by explicit and publicly-reasoned resolutions of governmental entities entrusted with the power and duty of collective decisionmaking - chiefly legislative and administrative bodies - supervised in turn by the institution of judicial review.

In support of this thesis, the Essay seeks to refute three prevailing, even if implicit, assumptions that guide much of current property theory: First, that governmental interventions with property are categorically more legitimate when they seek to redistribute preexisting property entitlements “downwards,” i.e. from the better-off to the less well-off. Second, that judicial review of legislative or regulatory decisions about property entrusts the reviewing court with substantially weaker powers than the court would have in adjudication of private disputes. Third, that the normative viability of the above-stated differential construction of property law necessarily hinges upon the feasibility of creating a comprehensive and unambiguous divide between private law and public law.

Ben Barros

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