Seth Davis, ‘Presidential Government and the Law of Property’

Usually we think of property as a right made exclusively, or nearly so, by state courts and legislatures. The Executive Branch may regulate property, but it does not shape property law, or so our usual story goes. That conventional story is error.

This Article introduces presidential government as a property lawmaker. Descriptively, it supplies the missing account of presidential development of the property system. In particular, it argues that the President — given the office’s visibility, rhetorical authority, and centralizing and coordinating functions — is uniquely situated to treat property as a system and not just as a right. This claim forces us to develop a theory of how property law is made that does not focus just upon courts, or simply upon the choice between courts and legislatures. Of course, administrative law scholars have long known that the federal executive can affect property. But we have not recognized that presidents try to make their mark upon the property system. This Article fills that gap.

Normatively, this Article defends presidential governance of property. To evaluate presidential property lawmaking, we need a reasoned elaboration of the link between administrative law’s procedural concerns and property law’s substantive frameworks. The literature does not furnish a ready model. To develop a complete theory of the institutional design of property lawmaking, it is necessary to get beyond thinking of property just as a right. What we need is to explore the structure and function of property law from a systemic perspective. Focusing upon the unfamiliar category of presidential property lawmaking forces us to unpack the link between property’s structure and function on the one hand and institutional choice on the other. This link involves balancing concerns about stability and flexibility and uniformity and diversity within property law with concerns about the quality of decisionmaking regarding property’s structure and function. This balance dictates that presidents should have substantial power to shape the federal law of property. Still, presidentialism has potential vices that require limitations on presidential property lawmaking based upon differences among resources and contexts of ownership. Yet, surprising as it may sound given our conventional understanding of what property law is and how it is made, presidential governance of the property system is a boon, not a bane.

Davis, Seth, Presidential Government and the Law of Property (August 22, 2013).

First posted 2013-08-24 06:16:11

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