ABSTRACT
Property rights are, I argue, the single largest legal limitation on our ability to respond effectively to the climate change crisis. This is because our understanding of the scope of property rights shapes and limits legal concepts such as regulatory takings, land use law, common law tort and property claims, and statutory environmental regulation. Property sets our cultural norms about how much the government can or should control the uses of land. The goals of this Article are to (1) historically demonstrate the failures of socially-oriented property theory as they are represented in the analytical framework of doctrines such as social utility and (2) advance a sustainable theory of property whose usefulness is demonstrated by that historical examination.
From a common law model of property based on near complete control by private landowners, property theory evolved to a model of viewing property as a vehicle for managing the competing interests of the individual owner and the larger society. From this model of competing interests, modem property theory weighed in on the side of society, reframing property interests largely in terms of the community and social relationships. I argue that the social relations and community approaches as they have developed in the case law have environmentally failed us …
Jill Fraley, Climate Change, Sustainability, and the Failure of Modern Property Theory, 104 Marquette Law Review 93 (2020).
First posted 2021-03-21 13:00:30
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