Brigham-Kanner Property Rights Conference Journal, Volume 4 William & Mary Law School
Total Page:16
File Type:pdf, Size:1020Kb
College of William & Mary Law School William & Mary Law School Scholarship Repository Brigham-Kanner Property Rights Conference Law School Journals Journal 8-2015 Brigham-Kanner Property Rights Conference Journal, Volume 4 William & Mary Law School Follow this and additional works at: https://scholarship.law.wm.edu/propertyjournal Part of the International Law Commons, and the Property Law and Real Estate Commons Recommended Citation William & Mary Law School, "Brigham-Kanner Property Rights Conference Journal, Volume 4" (2015). Brigham-Kanner Property Rights Conference Journal. 4. https://scholarship.law.wm.edu/propertyjournal/4 Copyright c 2015 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/propertyjournal ÞÎ×ÙØßÓóÕßÒÒÛÎ ÐÎÑÐÛÎÌÇ Î×ÙØÌÍ ÝÑÒÚÛÎÛÒÝÛ ÖÑËÎÒßÔ Ê±´«³» ì ß«¹«•¬ îðïë ÜÛÚ×Ò×ÒÙÌØÛ ÎÛßÝØ ÑÚ ÐÎÑÐÛÎÌÇ Ñ½¬±¾»® íðíïô îðïì ÝÑÒÚÛÎÛÒÝÛ ßËÌØÑÎÍ ÞÎ×ÙØßÓóÕßÒÒÛÎ ÐÎÑÐÛÎÌÇ Î×ÙØÌÍ ÐÎ×ÆÛ É×ÒÒÛÎÍ Ó·½¸¿»´ Óò Þ»®¹»® Ö¿³»•ÉòÛ´§ô Ö®ò η½¸¿®¼ ßò Û°•¬»·² ÐßÒÛÔ×ÍÌÍ Ü¿²¿ Þ»®´·²»® Ö¿³»• Íò Þ«®´·²¹ Ü¿ª·¼ Ôò Ý¿´´·»• ú ׿²É»•´»§óͳ·¬¸ ͬ»ª»² Öò Û¿¹´» Ö¿²»¬ Þ«•¸ Ø¿²¼§ ß ÐËÞÔ×ÝßÌ×ÑÒ ÑÚ ÌØÛ ÐÎÑÐÛÎÌÇ Î×ÙØÌÍ ÐÎÑÖÛÝÌ ÑÚ BRIGHAM-KANNER PROPERTY RIGHTS CONFERENCE JOURNAL Volume 4 2015 Cite as: 4 BRIGHAM-KANNER PROPERTY RIGHTS CONF. J. ___ (2015) A PUBLICATION OF THE PROPERTY RIGHTS PROJECT OF WILLIAM & MARY LAW SCHOOL COLLEGE OF WILLIAM & MARY POST OFFICE BOX 8795 WILLIAMSBURG, VIRGINIA 23187-8795 The Brigham-Kanner Property Rights Conference Journal [ISSN Number: 2326-7437] is published by the Property Rights Project of William & Mary Law School. Our mailing address is Brigham-Kanner Property Rights Conference Journal, William & Mary Law School, College of William & Mary, Post Office Box 8795, Williamsburg, Virginia 23187-8795. E-mail address: mnwyatt @wm.edu. The views expressed in the Journal are those of the authors and do not necessarily reflect the policies or opinions of the Brigham-Kanner Property Rights Conference Journal, its editors and staff, or the College of William & Mary. History of the William & Mary Law School Chartered in 1693 by Queen Mary II and King William III of England, the College of William & Mary is the second oldest insti- tution of higher learning in the United States. The Chair of Law at William & Mary was created in 1779 by the Board of Visitors at the request of Thomas Jefferson, and was the first established in the United States. The first occupant of the Chair was George Wythe, in whose offices studied Thomas Jefferson, John Marshall, James Monroe, and Henry Clay. The growth of the law school was halted by the beginning of the Civil War in 1861. Sixty years later, the study of law was revived in a modern program that attracts students from all regions of the nation. Copyright Notice The College of William & Mary retains the copyright to all issues of the Brigham-Kanner Property Rights Conference Journal, printed by Western Newspaper Publishing Co., Inc., Indianapolis, Indiana. Except as otherwise provided, the author of each article in this issue has granted permission for copies of that article to be made available for classroom use, provided that (1) copies are dis- tributed at or below cost, (2) the author and the Brigham-Kanner Property Rights Conference Journal are identified, (3) proper notice of the copyright is affixed to each copy, and (4) the Brigham-Kanner Property Rights Conference Journal is notified of the use. Subscriptions The Brigham-Kanner Property Rights Conference Journal is published once a year by the Property Rights Project of William & Mary Law School. Subscriptions to the Journal are considered to be continuous and, absent receipt of notice to the contrary, will be renewed automatically each year. The subscription price is $15.00 per issue. Correspondence related to subscriptions should be addressed to: Megan Wyatt, Assistant Editor, Brigham-Kanner Property Rights Conference Journal, William & Mary Law School, College of William & Mary, Post Office Box 8795, Williamsburg, Virginia 23187-8795. BRIGHAM-KANNER PROPERTY RIGHTS CONFERENCE JOURNAL VOLUME 4 AUGUST 2015 CONFERENCE JOURNAL ADVISORY COMMITTEE BOARD DEAN DAVISON M. DOUGLAS JOSHUA E. BAKER LYNDA L. BUTLER LYNDA L. BUTLER JOSEPH T. WALDO CHRISTI A. CASSEL JAMES W. ELY, JR. CONFERENCE ADVISORY BOARD ALAN T. ACKERMAN STEPHANIE H. AUTRY ANDREW P. BRIGHAM STEPHEN J. CLARKE MARK (THOR) HEARNE, II JEREMY P. HOPKINS JOSEPH V. SHERMAN ROBERT H. THOMAS JOURNAL STAFF Editor LYNDA L. BUTLER Assistant Editor MEGAN WYATT BRIGHAM-KANNER PROPERTY RIGHTS CONFERENCE JOURNAL VOLUME 4 AUGUST 2015 DEFINING THE REACH OF PROPERTY OCTOBER 3031, 2014 PANEL 1: THE ROLE OF THE ADVOCATE IN DEFINING PROPERTY STRONG AND INFORMED ADVOCACY CAN SHAPE THE LAW: A PERSONAL JOURNEY Michael M. Berger 1 MICHAEL M. BERGERA CAREER DEVOTED TO PROPERTY RIGHTS Dana Berliner 23 MICHAEL M. BERGERA PATH TO FAIRNESS Janet Bush Handy 31 PANEL 3: BALANCING PRIVATE PROPERTY AND COMMUNITY RIGHTS NOVEL TAKINGS THEORIES: TESTING THE BOUNDARIES OF PROPERTY RIGHTS CLAIMS James S. Burling 39 ON ENGINEERING URBAN DENSIFICATION Steven J. Eagle 73 THE BUNDLING PROBLEM IN TAKINGS LAW: WHERE THE EXACTION PROCESS GOES OFF THE RAILS Richard A. Epstein 133 PANEL 4: PROPERTY RIGHTS IN DEVELOPING AND TRANSITIONAL COUNTRIES BEYOND BLACKSTONE: THE MODERN EMERGENCE OF CUSTOMARY LAW David L. Callies Ian Wesley-Smith 151 THE CONTRACT CLAUSE: ORIGINS AND EARLY DEVELOPMENT James W. Ely, Jr. 199 PANEL 3 Q&A: DISCUSSION ON BALANCING PRIVATE PROPERTY AND COMMUNITY RIGHTS Dana Berliner James S. Burling Steven J. Eagle Richard A. Epstein Gideon Kanner James E. Krier Thomas W. Merrill Marc Poirier 229 STRONG AND INFORMED ADVOCACY CAN SHAPE THE LAW: A PERSONAL JOURNEY MICHAEL M. BERGER* INTRODUCTION Without advocacy, there are no rights. Nice words on paper, perhaps, but not rights. Rights need to be enforced to be meaning- ful. As the United States Supreme Court has said repeatedly, eco- nomic advantages do not become rights until they have the law back of them and when courts preclude others from interfering with those rights.1 Enforcement of such rights is done by advocates, because courts are not self-starters. Someone has to bring cases to themlawyers. In the realm of protected rights, the rights of property owners were for many years strangely orphaned creaturespoor relations, as the Supreme Court once noted.2 Ensconced in the Bill of Rights along- side the rights to life and liberty, property rights found few defend- ers. Those who were interested in property at all seemed to come at it from the other side. The Sierra Club, for example, has been around since 1892, but its interest in property is restraining private use, not enhancing or protecting it. And dont get me started on the ACLU either. Organizations with a dedication toward protecting the rights of private property owners did not come into being until quite a bit later. The Institute for Justice, for example, was founded in 1991; the Cato Institute and the Washington Legal Foundation were both estab- lished in 1977; the Pacific Legal Foundation came into being in 1973. And I graduated from law school in 1967. Thus, while it is not unusual today for us to see one or more of those recently formed organizations filing suit to protect the rights of private property owners, that occurrence is a current phenomenon. * Partner and co-Chair of the Appellate Practice Group, Manatt, Phelps & Phillips (Los Angeles office). 1. E.g., Kaiser Aetna v. United States, 444 U.S. 164, 178 (1979) (quoting with approval United States v. Willow River Power Co., 324 U.S. 499, 502 (1945)). 2. Dolan v. City of Tigard, 512 U.S. 374 (1994). 1 2 PROPERTY RIGHTS CONFERENCE JOURNAL [Vol. 4:001 In 1967, there was just me and the small firm I practiced law with and a few other hardy individuals, including some academics who were prior honorees at this conference. Specialized practice helps. It allows lawyers to become familiar with the ins and outs and complications of a particular field. Tak- ings has always been a complicated area of the law and a difficult one to fathom. As Justice Stevens once put it, even the wisest of lawyers would have to acknowledge great uncertainty about the scope of this Courts takings jurisprudence.3 When seeking to push and shape the contours of the law, it be- hooves one to actually have a firm grasp on the field. I have repeatedly urged that friends dont let friends file takings claims. I was not kid- ding. My concern is that too many lawyers tend to view a takings claim as simply some sort of catchall to add as a tag line at the end of a multicount complaint (which may or may not have a valid claim at its core ab initio). Bad idea. It leads to cases in which lawyers make all sorts of wild claims, irritating judges (who may, in any event, be hear- ing their first takings cases4) and making bad law by continuing to make judges think that takings law is not a legitimate subject. Claims like these: that a phone call made by a police officer during an arrest was a taking;5 that forcing exotic dancers to stay four feet away from customers was a taking of the bar owners interest in the four- foot circle of property surrounding each dancer;6 that precluding a murderer from collecting on a life insurance policy on his victim was 3. Nollan v. California Coastal Commn., 483 U.S. 825, 866 (1987) (Stevens, J., dissenting). That was actually putting it mildly. Professor Van Alstyne described takings law as a mass of obtuse decisional law. Arvo Van Alstyne, Modernizing Inverse Condemnation: A Legislative Prospectus, 8 SANTA CLARA L.