Greetings from the William and Mary Law School in (rainy) Williamsburg, Virginia, where we're speaking at the 12th Annual Brigham-Kanner Property Rights Conference.
This year's B-K Prize winner is Harvard Law's Joseph Singer, who we wrote is "an interesting choice, given his theory that a 'robust regulatory structure' goes hand-in-hand with property rights, liberty, and the free market. Robust regulation isn't exactly what you might think of when you think property rights, is it?" As another lawprof noted about Professor Singer, he "is such a believer in private property that he thinks everyone should have some."
If that quote doesn't quite compute for you -- it's a nice thought, for sure, but how do you get from here to there is what we want to know -- you are not alone. Last year's B-K Prize winner, Michael Berger spoke during the first morning session, and submitted this piece for forthcoming publication in the Brigham-Kanner Property Conference Journal, in which he writes:
This year’s Brigham-Kanner honoree has, in the fashion of academics, produced a prodigious body of work dealing with property in general and takings law in particular. While there is much that is useful in his analysis, I believe that some of its central tenets are mistaken and lead to erroneous conclusions about takings law’s function and where that law is and should be going. Moreover, and without explanation, Professor Singer’s analysis ignores all of the Supreme Court’s decisions since 2010, comprising at least half a dozen important takings opinions.. . .
Cutting to the chase, I am troubled by Professor Singer’s view of takings law. He writes breezily and well, 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 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 taking cases illustrate) of litigation. Given a choice between working to make the existing system work as designed and shifting to Professor Singer’s progressive norms, I have no problem opting for the former.
The fundamental problem with Professor Singer’s concept of “property as the law of democracy” is that it seeks to overwrite the slate on which our Constitution is already written. In doing so, he overlooks the reality that it is societies that have evolved reliable property rules, protected by the rule of law, that also enjoy a high degree of personal and political freedom while others have not.
Michael Berger, Property, Democracy & the Constitution, 5 Brigham-Kanner Property Rights Conf. J. ___ (forthcoming 2016) (footnotes omitted). The discussion that followed was spirited, and highlighted the differences between those of us who have come to the conclusion that property rights are the guardian of every other right, and those who view regulation and the "rights" of the majority as more compelling than the rights of the individual.
We moderated a discussion about property rights and civil forfeiture laws, and we'll upload a summary of that in our next post.
