Last year, we posted about the Brigham-Kanner Conference, the annual meeting at William and Mary Law School where we talk all things property rights and award the Brigham-Kanner Property Rights Prize. (By the way, this year's conference will be held in The Hague, The Netherlands in October. But more on that soon, in a separate post.)
What we are posting today is a follow-up about Mike Berger's presentation at the 2015 conference. His article -- then only in draft form -- is a critique of the theories of the 2015 Brigham-Kanner prizewinner, Harvard lawprof Joseph Singer. Recall that Berger was presented with the prize in 2014 -- the first and thus far only practitioner to receive the award -- which makes this article even more important.
Berger's article is now finalized, and has been published by the Brigham-Kanner Property Rights Conference Journal: "Property, Democracy, & The Constitution," 5 Brigham-Kanner Prop. Rts. Conf. J. 45 (2016).
Here's a taste, from the Introduction:
I am troubled by Professor Singer’s view of takings law. He writes well and in a breezy style, so he is able to make it sound as though he is simply laying out a rational summary of takings law as it has been developed. But I don’t think so. I think that Professor Singer would like to wipe the slate pretty clean and start anew, establishing what he views as property “norms” that would retroactively substitute his progressive notions for traditional property law concepts. Rather than accept his thesis at face value, I suggest we deconstruct and analyze it to see how it actually comports with the property and liberty norms that a free society and the Supreme Court have already written on this constitutional slate. Those are the norms that have been deemed essential for a minimal degree of stability in a society that is governed by persuasion rather than by governmental fiat. What is essential in our system of private property, free enterprise, and constitutional protection of individuals is that people be able to know what their rights and liabilities are without years (or even decades, as too many of the regulatory takings cases illustrate) of litigation. Given a choice between making the existing system work as designed or shifting to Professor Singer’s progressive norms, I have no problem opting for the former.
We recommend you read the entire article.