Lawprof Steven J. Eagle (Geo. Mason), author of the treatise Regulatory Takings, has a forthcoming article The Really New Property: A Skeptical Appraisal:
Thisarticle reviews recent scholarship invoking the prophetic tradition in Americanjurisprudence and calling for the transformation of property law. It contrastsimposed top-down social change with Burkean and Oakeshottian gradual changederived from conversation within our legal and cultural tradition. The work ofRobert Ellickson is presented as illustrating the development of property lawin the Burkean tradition. Transformative property scholarship, on the otherhand, largely reflects Osborne and Gaebler’s view that government should steer andprivate actors row, reinforced by Thaler and Sunstein’s call for softpaternalism. The article asserts, however, that Kant and Berlin’s admonitionthat all of humankind is “crooked timber” precludes officials from a privilegedposition, a postulate well supported by public choice theory.
Thearticle views the change in conceptual thinking from Hohfeldian property toHeller’s anticommons and assertions of disintegration and entropy of property.These set the stage, for instance, for advocacy of “rightsizing,” through theshrinking private parcels through smart growth and densification, and thesupersizing of government-controlled land through condemnation for urbanredevelop.
Othertopics discussed are regionalism, new governance, and the creation of affordablehousing, through, among other things, the rearrangement of traditionallandlord-tenant relationships. The article expresses skepticism that flawsinherent in the top-down transformation of property would permit outcomes thatare coherent and effective, and could withstand capture by affected interestgroups.
Will this article help you win your next condemnation case? Probably not. But it is still worth reading for its insight into the theories of property. The article is available on SSRN here.