Property-as-Society

Authors

Timothy M. Mulvaney, Texas A&M University School of LawFollow

Document Type

Article

Publication Date

10-2018

Journal Title

Wisconsin Law Review

ISSN

0043-650X

Abstract

Modern regulatory takings disputes present a key battleground for competing conceptions of property. This Article offers the following account of the three leading theories: a libertarian view sees property as creating a sphere of individual freedom and control (property-as-liberty); a pecuniary view sees property as a tool of economic investment (property-as-investment); and a progressive view sees property as serving a wide range of evolving communal values that include, but are not limited to, those advanced under both the libertarian and pecuniary conceptions (property-as-society). Against this backdrop, the Article offers two contentions. First, on normative grounds, it asserts that the conception of property-as-society presents a more useful structure for assessing whether an allocative choice is fair and just absent compensation than the conceptions of property-as-liberty and property-as-investment. Second, on doctrinal grounds, it suggests that the property-as-liberty conception has fallen from grace in takings jurisprudence since its peak in Lucas v. South Carolina Coastal Council in 1992; moreover, while the property-as-investment understanding remains of some force, the property-as-society conception has ascended to a position of jurisprudential prominence, as most recently evidenced in both the majority and the dissenting opinions in the 2017 matter of Murr v. Wisconsin.

First Page

911

Last Page

970

Num Pages

60

Volume Number

2018

Issue Number

5

Publisher

University of Wisconsin Law School

Recommended Citation

Timothy M. Mulvaney, Property-as-Society, 2018 Wis. L. Rev. 911 (2018).
Available at: https://scholarship.law.tamu.edu/facscholar/1291

File Type

PDF