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Tulane Environmental Law Journal




Is land use planning fundamentally different from other forms of central planning? If so, does that difference suggest that land use planning will succeed where other forms of central planning failed? We conclude that land use planning is not fundamentally different from other forms of economic central planning. Further, the working of the market economy, and the long-term success of America's economy, is intertwined in the clear and certain rights and responsibilities generated by the common law of property. The complexity of the modem world does not diminish the need for private property; indeed, it strengthens its imperative. Returning to a feudal conception of property is bad for personal freedom, bad for civil society, and bad for the environment.

The last part of the foregoing bears particular emphasis. Too often, defense of property rights is linked to a rejection of socially laudatory goals. Protecting property rights does not mean acquiescing in the destruction of the environment, the blighting of urban landscapes, or callous disregard for the suffering of others. Property rights, along with markets and the common law, make up an institution that is quite successful at not only allowing but facilitating such goals and has long been recognized as such. For example, historian Richard Pipes notes that "early [Christian] church theoreticians saw property as 'another disciplinary institution intended to check and counteract the vicious disposition of men." Our argument here is not that rights should be protected to privilege the few, but that the failure to protect property rights will not only impoverish the many but harm the environment as well. Note also that our argument is not simply that planning has been a tool of brutal totalitarian regimes, but that even a pure democratic system run by benevolent wise persons has deep flaws that prevent it from achieving its stated aims.

In Part I we briefly describe the nature of common law property rights rules. In Part II we examine the corrupted form of property rights, which we label "administrative property," developing today through application of the planning model to land use. In Part III we explore how common law property rights work better than the corrupted modern version for resolving the contemporary problems planning attempts to address.

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Tulane University School of Law

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