What is private property? James Madison called it “that dominion which one man claims and exercises over the external things of the world, in exclusion of every other individual.” The Constitution’s Takings Clause doesn’t define it; it simply prohibits the taking of private property for public use without just compensation.
In this academic workshop – to be held in November 2025 – Pacific Legal Foundation seeks scholarly papers exploring the other sources of private property and how they should be used to define private property rights protected by the Takings Clause.
The U.S. Supreme Court has recently re-explored what property rights are protected under the Constitution in Tyler v. Hennepin County, where the Court unanimously held that home equity was a property right protected by the Takings Clause. Since the Constitution does not define private property, the Court explained, in Tyler, that private property can be defined by “draw[ing] on existing rules or understandings about property rights.”
What sources do courts draw upon to define property rights? In Tyler, the Court identified state law as “one important source,” but importantly, not the only one.
Property rights are often analogized to a “bundle of sticks,” an idiom likely derived from a 1928 treatise authored by then-New York Court of Appeals Judge Benjamin Cardozo, Paradoxes of Legal Science. As Judge Cardozo explained, the “bundle of power and privileges to which we give the name of ownership” embodies property rights. Since at least 1979 in Kaiser Aetna v. United States, the Supreme Court has utilized the “bundle of sticks” analogy to determine whether the government must pay compensation for the seizure or overregulation of what the Court deems “essential sticks.”
But what are those sticks, and from what sources (e.g., common law, Magna Carta) do they originate? Which sticks, if taken by the government, trigger the Fifth Amendment’s mandate that the government compensate the owner? And has the bundle-of-sticks metaphor helped or harmed the protection of private property?
Legal scholars and practitioners are invited to submit a proposal outlining a paper to be presented at the workshop this Fall. Authors of accepted papers will receive an honorarium, plus reimbursement for travel expenses to the workshop, plus invaluable feedback on their papers from property-law experts. The Call for Papers with further information, including ideas for possible topics, is available at Pacific Legal Foundation’s website. Proposals are due by August 15, 2025.