The particulars of owning

Ecology Law Quarterly

Volumn 25, Issue 4, 1999, Pages 574-589

  Freyfogle, Eric T ^a  

^a UNIVERSITY OF ILLINOIS AT URBANA CHAMPAIGN   (United States)

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EID: 22644452325     PISSN: 00461121     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (48)

1. The American tendency to focus on rights is thoughtfully assessed in MARY ANN GLENDON, RIGHTS TALK (1991).
2. Locke's theory appears primarily in chapter V of his Second Treatise of Government. JOHN LOCKE, TWO TREATISES OF GOVERNMENT 303-320 (Peter Laslett ed., 1988).
3. Marx's ideas of property appear throughout his writings, particularly his writings on historical materialism. One useful survey is E.K Hunt, Marx's Theory of Property and Alienation, in THEORIES OF PROPERTY: ARISTOTLE TO THE PRESENT (Anthony Parel & Thomas Flanagan eds., 1979).
4. A concise, recent presentation of the Marxist view of property's evolution, written not long before the collapse of the Soviet Union, is MARIA SUVUROVA & BORIS ROMANOV, WHAT IS PROPERTY? 40-50 (1986).
5. Maine's works dealing with property include his ANCIENT LAW (1936);
6. VILLAGE-COMMUNITIES IN THE EAST AND WEST (1974),
7. LECTURES ON THE EARLY HISTORY OF INSTITUTIONS (7th ed. 1966).
8. His views on property are considered in RICHARD SCHLATTER, PRIVATE PROPERTY: THE HISTORY OF AN IDEA 265-69 (1973).
9. The matter is discussed briefly in Eric T. Freyfogle, Ethics, Community, and Private Land, 23 ECOLOGY L.Q. 631, 635-38 (1996).
10. See Douglas Long, Bentham on Property, in THEORIES OF PROPERTY, supra note 3, at 221.
11. See John Gray, John Stuart Mill on the Theory of Property, in THEORIES OF PROPERTY, supra note 3, at 257.
12. RICHARD A. EPSTEIN, TAKINGS: PRIVATE PROPERTY AND THE POWER OF EMINENT DOMAIN (1985).
13. Peter Byrne is one who does. See J. Peter Byrne, Ten Arguments for the Abolition of the Regulatory Takings Doctrine, 22 Ecology L.Q. 89 (1995).
14. An able historical study that concludes that the regulatory takings doctrine is inconsistent with the understanding of the Constitution's drafters is William Michael Treanor, The Original Understanding of the Takings Clause and the Political Process, 95 COLUM. L. REV. 782 (1995).
15. Epstein reaches this conclusion in a two-step process: property as used in the Constitution is defined "from ordinary usage," and ordinary usage in turn means property as understood in "basic legal conceptions" and the "classical common law." Epstein, supra note 8, at vii, 23, passim.
16. The most thorough study is Martin S. Flaherty, History "Lite" in Modern American Constitutionalism, 95 COLUM. L. REV. 523 (1995).
17. Many historical studies of property as an organic, communally responsive institution undercut Epstein's claims about the common law of property. E.g., GREGORY S. ALEXANDER, COMPETING VISIONS OF PROPERTY IN AMERICAN LEGAL THOUGHT 1776-1970 (1997). The historical grounding of the regulatory takings doctrine is challenged in Treanor, supra note 9.
18. For a review of Justice Scalia's decisions, see generally Fred Bosselman, Scalia on Land, in AFTER LUCAS: LAND USE REGULATION AND THE TAKINGS OF PROPERTY WITHOUT COMPENSATION 82 (David Callies ed., 1993),
19. Fred Bosselman, Four Land Ethics: Order, Reform, Responsibility, Opportunity, 24 ENVTL. L. 1439, 1485-1506 (1994).
20. E.g., sources cited supra, note 11; Bruce W. Burton, Regulatory Takings and the Shape of Things to Come: Harbingers of a Takings Clause Reconstellation, 72 OR. L. REV. 603 (1993);
21. Myrl L. Duncan, Property as a Public Conversation, Not a Lockean Soliloquy: A Role for Intellectual and Legal History in Takings Analysis, 26 ENVTL. L. 1095 (1996);
22. Louise A. Halper, Why the Nuisance Knot Can't Undo the Takings Muddle, 28 IND. L. REV. 329 (1995);
23. Louise A. Halper, Tropes of Anxiety and Desire: Metaphor and Metonymy in the Law of Takings, 8 YALE J. L. & HUMAN. 31 (1996);
24. John A. Humbach, Evolving Thresholds of Nuisance and the Takings Clause, 18 COLUM. J. ENVTL. L. 1 (1993).
25. For the leading study of property in American legal thought, a study that roundly undercuts Justice Scalia's view of property, see Alexander, supra note 11. Another study more focused on regulation during the first half of the nineteenth century also presents a far different view of property. See WILLIAM J. NOVAK, THE PEOPLE'S WELFARE: LAW AND REGULATION IN NINETEENTH-CENTURY AMERICA (1996).
26. The rich colonial tradition of land use regulation, overlooked by Justice Scalia, is surveyed in John F. Hart, Colonial Land Use Law and Its Significance for Modern Takings Doctrine, 109 HARV. L. REV. 1252 (1996).
27. An earlier work that looks at ideas about property, also showing vastly more variety and dynamism than Justice Scalia admits, is WILLIAM B. SCOTT, IN PURSUIT OF HAPPINESS: AMERICAN CONCEPTIONS OF PROPERTY FROM THE SEVENTEENTH TO THE TWENTIETH CENTURY (1977).
28. See J. BAIRD CALLICOTT, IN DEFENSE OF THE LAND ETHIC: ESSAYS IN ENVIRONMENTAL PHILOSOPHY 117-27 (1989) (considering the dichotomy in the environmental land use context).
29. See Eric T. Freyfogle, The Owning and Taking of Sensitive Lands, 43 UCLA L. REV. 77, 103-06 (1995).
30. See Eric T. Freyfogle, The Construction of Ownership, 1996 U. ILL. L. REV. 173, 178-80.
31. E.g., Erazim V. Kohák, Possessing, Owning, Belonging, in BEYOND THE WELFARE STATE 155-71 (Irving Howe ed., 1982).
32. The relationship between owning and belonging is particularly clear in common-property regimes. See ELINOR OSTROM, GOVERNING THE COMMONS: THE EVOLUTION OF INSTITUTIONS FOR COLLECTIVE ACTION (James E. Alt & Douglass C. North eds., 1990).
33. Two recent contributions on the essential social origins of ownership norms are Jeanne L. Schroeder, Never Jam To-Day: On the Impossibility of Takings Jurisprudence, 84 GEO. L. J. 1531 (1996),
34. Joseph W. Singer & Jack M. Beerman, The Social Origins of Property, 6 CANAD. J. L. & JURIS. 217 (1993).
35. The main ideas of Wendell Berry are considered in Eric T. Freyfogle, The Dilemma of Wendell Berry, 1994 U. ILL. L. REV. 363.
36. Some of the problems are considered in W. WILLIAM WEEKS, BEYOND THE ARK: TOOLS FOR AN ECOSYSTEM APPROACH TO CONSERVATION (1997);
37. Symposium, The Ecosystem Approach: New Departures for Land and Water, 24 ECOLOGY L.Q. 619 (1997);
38. Oliver A. Houck, On the Law of Biodiversity and Ecosystem Management, 81 MINN. L. REV. 869 (1997);
39. Lee P. Breckenridge, Reweaving the Landscape: The Institutional Challenges of Ecosystem Management for Lands in Private Ownership, 19 VT. L. REV. 363 (1995).
40. The history is considered in Alexander, supra note 11; MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW 1780-1860 (1977);
41. JAMES WILLARD HURST, LAW AND THE CONDITIONS OF FREEDOM IN THE NINETEENTH-CENTURY UNITED STATES (1956).
42. The anti-environmental "wise use" movement is considered in LET THE PEOPLE JUDGE: WISE USE AND THE PRIVATE PROPERIY RIGHTS MOVEMENT (John D. Echeverria & Raymond Booth Eby eds., 1995).
43. The question of how TDRs fit together with private property rights was presented to the Supreme Court in Suitum v. Tahoe Regional Planning Agency, 520 U.S. 725 (1997). While deciding the case on ripeness grounds, the Court intimated that TDRs were a legitimate reformulation of a landowner's rights, rather than part of the compensation paid to an owner whose rights had been taken. The background of the case is thoughtfully considered in Richard J. Lazarus, Litigating Suitum v. Tahoe Regional Planning Agency in the United States Supreme Court, 12 J. LAND USE & ENVTL. L. 179 (1997).
44. I comment on the unfairness of the first in time rule and the need to remedy that unfairness in Eric T. Freyfogle, The Owning and Taking of Sensitive Lands, supra note 15, at 132-35.
45. See 4 BRUCE M. KRAMER & PATRICK H. MARTIN, THE LAW OF POOLING & UNITIZATION § 30 (3d ed. 1983).
46. See Beacham v. Lake Zurich Property Owners Ass'n., 123 Ill.2d 227, 526 N.E.2d 154 (1988) (embracing the rule).
47. See generally HORWITZ, supra note 20; Alexander, supra note 11; NOVAK, supra note 13.
48. WES JACKSON, BECOMING NATIVE TO THIS PLACE 3 (1994).