What Owners Want and Governments Do - Evidence from the Oregon Experiment
In 2004, Oregonians approved ballot Measure 37 by 61% to 39%. The measure answered the calls of critics of contemporary takings jurisprudence by requiring either compensation for losses caused by land use restrictions imposed after acquisition of the property or waivers of the restrictions. Three years later, voters acted to repeal most of Measure 37 by an even greater margin. Together the birth, brief life, and rapid demise of Measure 37 comprise an unusual natural experiment in property law. The results of this experiment go to the heart of debates about regulatory takings in property law and policy. First, the Oregon experience resulted in a sea change in owners’ understandings of property rights. The 2004 vote reflected the popular understanding of land use restrictions as invasions of property rights. Faced with effective repeal of those restrictions, as reflected in passionate testimony before the Oregon legislature, Oregonians came to see the regulations as in fact an important source of property rights. In effect Measure 37 brought the background government and community support on which property rights depend into the foreground of owners’ consciousness. Second, government responses to Measure 37 challenged arguments that compensation will dispel the fiscal illusion under which governments operate and result in more efficient regulation. Rather than weigh costs and benefits, in all but one of thousands of cases, the government waived the regulations rather than compensate. These decisions were made without analysis of the benefits of the regulations waived, and despite predictably negative results. Finally, the thousands of claims and research catalyzed by these claims complicated questions of the compensation to which owners are justly entitled. While limited, therefore, the Oregon experiment provided valuable grounded evidence for the continuing debate about takings law and the ways that property mediates the relationships between individuals, communities, and the state.
The Guardian of Every Other Right: A Constitutional History of Property Rights
Editor's Preface Preface Introduction 1. The Origins of Property Rights: The Colonial Period 2. The Revolutionary Era, 1765-1787 3. "Property Must Be Secured": Establishing a New Constitutional Order 4. The Development of Property Rights in the Antebellum Era, 1791-1861 5. The Gilded Age and the Challenge of Industrialization 6. Progressive Reform and Judicial Conservatism, 1900-1932 7. The New Deal and the Demise of Laissez-Faire Constitutionalism 8. Property Rights and the Regulatory State 9. Epilogue Notes Bibliographical Essay Index of Cases Index
Is Anyone Minding Stonehenge--The Origins of Cultural Property Protection in England
This Article is the second in the author's ongoing series of articles on cultural property protection. In this Article, the author examines the genesis of preservation policies in the United Kingdom. The midto late eighteenth century witnessed a development boom that threatened many of the ancient ruins of England. Sir John Lubbock introduced a bill in Parliament to provide for the preservation of such ancient monuments. The author traces the history of this bill, thoughtfully exploring the origins of the concepts of cultural heritage property. Specifically, Lubbock's goal was responsible stewardship by proprietors and the government, and his views were eventually vindicated in legislation enacted to protect ancient monuments.