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Brigham-Kanner Property Rights Conference Journal, Volume 6 William & Mary Law School College of William & Mary Law School William & Mary Law School Scholarship Repository Brigham-Kanner Property Rights Conference Law School Journals Journal 8-2017 Brigham-Kanner Property Rights Conference Journal, Volume 6 William & Mary Law School Follow this and additional works at: https://scholarship.law.wm.edu/propertyjournal Part of the Property Law and Real Estate Commons Recommended Citation William & Mary Law School, "Brigham-Kanner Property Rights Conference Journal, Volume 6" (2017). Brigham-Kanner Property Rights Conference Journal. 6. https://scholarship.law.wm.edu/propertyjournal/6 Copyright c 2017 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/propertyjournal 294047 WM Mary Property Rights 6 Cover_a 8/31/2017 10:18 AM Page 1 Volume 6 Volume BRIGHAM-KANNER PROPERTY RIGHTS CONFERENCE JOURNAL B RIGHAM Volume 6 August 2017 -K ANNER THE ROLE OF PROPERTY IN SECURE SOCIETIES THE HAGUE, NETHERLANDS P October 19–21, 2016 ROPERTY CONFERENCE AUTHORS BRIGHAM-KANNER PROPERTY RIGHTS PRIZE WINNERS R Hernando de Soto IGHTS Thomas W. Merrill James W. Ely, Jr. C ONFERENCE PANELISTS Benito Arruñada James S. Burling J. Peter Byrne J Sjef van Erp OURNAL Janet B. Handy Heinz Klug Frankie McCarthy Michael Rikon Christopher Serkin A PUBLICATION OF THE PROPERTY RIGHTS PROJECT OF 2017 294047 WM Mary Property Rights 6 Cover_a 8/31/2017 10:18 AM Page 2 Statement of Purpose The Brigham-Kanner Property Rights Conference Journal was established in 2012 to provide a forum for scholarly debate on prop- erty rights issues. The Journal publishes papers presented at the annual Brigham-Kanner Property Rights Conference as well as other papers submitted and selected for publication. Our goal is to extend the debate to a wider audience. Electronic Versions Electronic versions of the Journal are available at http://law.wm .edu/academics/intellectuallife/researchcenters/property-rights- project/conference-journal/index.php. BRIGHAM-KANNER PROPERTY RIGHTS CONFERENCE JOURNAL Volume 6 2017 Cite as: 6 BRIGHAM-KANNER PROPERTY RIGHTS CONF. J. ___ (2017) 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: [email protected]. 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: Ali Trivette, 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 6 AUGUST 2017 CONFERENCE BOARD OF ADVISORS COMMITTEE JOSHUA E. BAKER DEAN DAVISON M. DOUGLAS LYNDA L. BUTLER LYNDA L. BUTLER CHRISTI A. CASSEL JOSEPH T. WALDO JAMES W. ELY, JR. CONFERENCE ADVISORY BOARD ALAN T. ACKERMAN ANDREW P. BRIGHAM STEPHEN J. CLARKE ROBERT DENLOW JILL S. GELINEAU MARK (THOR) HEARNE, II JEREMY P. HOPKINS JOSEPH V. SHERMAN JOSEPH P. SUNTUM ROBERT H. THOMAS JOURNAL STAFF Editor LYNDA L. BUTLER Assistant Editor ALI TRIVETTE Bluebooking Editors KRISTIN ADAMS JONATHAN GONZALEZ ERIC TABOR BRIGHAM-KANNER PROPERTY RIGHTS CONFERENCE JOURNAL VOLUME 6AUGUST 2017 THE ROLE OF PROPERTY IN SECURE SOCIETIES OCTOBER 19–21, 2016 PANEL 1: LAND TITLING, INCLUSION, AND THE ROLE OF PROPERTY RIGHTS IN SECURE SOCIETIES OPENING REMARKS: HOW PROPERTY RIGHTS EVEN STOP WARS Hernando de Soto 1 EXCERPTS FROM THE MYSTERY OF CAPITAL Hernando de Soto 9 HOW TO MAKE LAND TITLING MORE RATIONAL Benito Arruñada 73 FORMALIZATION, POSSESSION, AND OWNERSHIP Thomas W. Merrill 113 PANEL 3: PROPERTY’S ROLE IN THE FUNDAMENTAL POLITICAL STRUCTURE OF NATIONS FREEDOM IN PROPERTY: FROM THE MAGNA CARTA TO LAND REFORM IN JAMAICA Janet Bush Handy 129 PROPERTY’S ROLE IN THE FUNDAMENTAL POLITICAL STRUCTURE OF NATIONS: THE SOUTHERN AFRICAN EXPERIENCE Heinz Klug 145 PANEL 5: EMINENT DOMAIN AND EXPROPRIATION AS WEALTH REDISTRIBUTION TOOLS PRIVATE PROPERTY FOR THE POLITICALLY POWERFUL James Burling 179 ARE EMINENT DOMAIN AND CONFISCATION VEHICLES FOR WEALTH REDISTRIBUTION? A SKEPTICAL VIEW James W. Ely, Jr. 211 PANEL 6: DEFINING AND PROTECTING PROPERTY RIGHTS IN INTANGIBLE ASSETS OWNERSHIP OF DATA: THE NUMERUS CLAUSUS OF LEGAL OBJECTS Sjef van Erp 235 PANEL 7: RISING SEAS AND PRIVATE PROPERTY: ADVOCATES AND ACADEMICS IN DEBATE FORMAT PROPERTY IN THE ANTHROPOCENE J. Peter Byrne 259 THE MISSING RUNG: CHALLENGING REGULATORY BARRIERS TO PROPERTY ACQUISITION Christopher Serkin 275 PANEL 8: PROPERTY RIGHTS AS DEFINED AND PROTECTED BY INTERNATIONAL COURTS PROTECTION OF PROPERTY AND THE EUROPEAN CONVENTION ON HUMAN RIGHTS Frankie McCarthy 299 PROPERTY RIGHTS AS DEFINED AND PROTECTED BY INTERNATIONAL COURTS Michael Rikon 329 OPENING REMARKS: HOW PROPERTY RIGHTS EVEN STOP WARS HERNANDO DE SOTO* From the rural farmer in Latin America who is struggling to pro- tect his family and his possessions to the street vendor in Tunisia whose wares are confiscated, the desire for property and property rights is universal. While many scholars take a theoretical approach to property rights, discussing and proposing what should be, I have devoted my career to finding out what is and use that knowledge to help bring peace, security, and stability. My research has taken me around the world, consulting with governments in an effort to bring stability. Time after time, I have discovered that property—in par- ticular the legal protection of property—has been the key to unlock- ing the value of people’s labor and creating economic, political, and social stability. As we consider the reality of the global terrorism originating from the Arab world today, it is most often thought of as a religious issue involving radical Islam to be solved by traditional warfare.1 But I have consulted with seven heads of state in the Middle East, and time and again my research has found that this is not an issue of religion, it is an issue of property.2 When Mohamed Bouazizi self-immolated in Tunisia at the end of 2010, he didn’t do so because of religion—he did so because of property * President, Institute for Liberty and Democracy, Lima, Peru and recipient of the 2016 Brigham-Kanner Property Rights Prize. This article is a summary of Mr. de Soto’s remarks presented at the 2016 Brigham-Kanner Property Rights Conference held in The Hague on October 19–21, 2016. As the president of the Institute for Liberty and Democracy, Mr. de Soto has made significant changes to the laws and the economic system of Peru and has influenced similar economic programs in nations around the world. He is the author of several works in- cluding The Mystery of Capital (2000) and The Other Path (1989). 1. See Hernando de Soto, This is How We Can Win the War on Terror, WORLD ECON. F. (Jan. 15, 2016), https://www.weforum.org/agenda/2016/01/this-is-how-we-can-win-the-war-on -terror/?utm_content=buffer6ec7d&utm_medium=social&utm_source=twitter.com&utm_cam paign=buffer (noting the West’s traditional attempts to fight terrorism and its failure to create and protect property rights in the Middle East). 2. Hernando de Soto, The Secret to Reviving the Arab Spring’s Promise: Property Rights, DAILY NEWS EGYPT (Apr. 20, 2013), http://www.dailynewsegypt.com/2013/04/20/the-secret-to -reviving-the-arab-springs-promise-property-rights/ (noting that the Arab Spring “was rooted in a desire for . a market-based economy”). 1 2 PROPERTY RIGHTS CONFERENCE JOURNAL [Vol. 6:001 rights.3 He was a street vendor whose cart was confiscated by the po- lice, and when the government refused to listen to him, he set him- self on fire.4 That was the beginning of the Arab Spring—millions of people went out into the streets, demonstrating for more freedom and more rights, and four governments fell.5 In order to understand the true cause of this uprising, I need to take you back to when I first became interested in property rights, in my home country of Peru.
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