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Brigham-Kanner Property Rights Conference Journal, Volume 5 William & Mary Law School

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Brigham-Kanner Property Rights Conference Journal, Volume 5 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 6-2016 Brigham-Kanner Property Rights Conference Journal, Volume 5 William & Mary Law School Follow this and additional works at: https://scholarship.law.wm.edu/propertyjournal Part of the Constitutional Law Commons, and the Property Law and Real Estate Commons Recommended Citation William & Mary Law School, "Brigham-Kanner Property Rights Conference Journal, Volume 5" (2016). Brigham-Kanner Property Rights Conference Journal. 5. https://scholarship.law.wm.edu/propertyjournal/5 Copyright c 2016 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/propertyjournal BRIGHAM-KANNER PROPERTY RIGHTS CONFERENCE JOURNAL Volume 5 June 2016 PROPERTY AS A FORM OF GOVERNANCE October 1–2, 2015 CONFERENCE AUTHORS BRIGHAM -K ANNER PROPERTY RIGHTS PRIZE WINNERS Frank I. Michelman Michael M. Berger Joseph William Singer PANELISTS Jan G. Laitos Peter S. Menell Laura S. Underkuffler A P UBLICATION OF THE PROPERTY RIGHTS PROJECT OF Statement of Purpose The Brigham-Kanner Property Rights Conference Journal was established in 2012 to provide a forum for scholarly debate on property rights issues. The Journal publishes papers presented at the annual Brigham-Kanner Property ights 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 -K ANNER PROPERTY RIGHTS CONFERENCE JOURNAL Volume 5 2016 Cite as: 5 B RIGHAM -K ANNER PROPERTY RIGHTS CONF . J. ___ (2016) 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 5 J UNE 2016 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 STEPHANIE H. AUTRY ANDREW P. BRIGHAM STEPHEN J. CLARKE MARK (T HOR ) 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 5 J UNE 2016 PROPERTY AS A FORM OF GOVERNANCE OCTOBER 1–2, 2015 PANEL 1: PROPERTY AS A FORM OF GOVERNANCE SHOULD WE CALL AHEAD ? PROPERTY , DEMOCRACY , & THE RULE OF LAW Joseph William Singer 1 GOOD GOVERNMENT , CORE LIBERTIES , AND CONSTITUTIONAL PROPERTY : AN ESSAY FOR JOE SINGER Frank I. Michelman 27 PROPERTY , DEMOCRACY , & THE CONSTITUTION Michael M. Berger 45 WHAT DOES THE CONSTITUTIONAL PROTECTION OF PROPERTY MEAN ? Laura S. Underkuffler 109 PANEL 3: OF PIPELINES , DRILLING , & THE USE OF EMINENT DOMAIN THE STRANGE CAREER OF PRIVATE TAKINGS OF PRIVATE PROPERTY FOR PRIVATE USE Jan G. Laitos 125 PANEL 4: PROPERTY RIGHTS IN THE DIGITAL AGE PROPERTY , INTELLECTUAL PROPERTY , AND SOCIAL JUSTICE : MAPPING THE NEXT FRONTIER Peter S. Menell 147 SHOULD WE CALL AHEAD? PROPERTY, DEMOCRACY, & THE RULE OF LAW † JOSEPH WILLIAM SINGER* Some in my band are gay & we have 2 gigs in your state next month. Should we call ahead to make sure the hotel accepts us all? Or maybe I should fire my gay band members just to be on the safe side.1 Audra McDonald Discrimination is not simply dollars and cents, hamburgers and movies; it is the humiliation, frustration, and embarrassment that a person must surely feel when he is told that he is unac- ceptable as a member of the public because of his race or color.2 Justice Arthur Goldberg Americans hate regulation. We don’t like being told what to do. We value our freedom, and regulations stop us from doing things we want to do. When you are subject to a regulation, you feel anything but free. But if we hate regulation so much, why do we have so many of them? Why don’t we just get rid of them all? That is a puzzle. Maybe we don’t hate regulation as much as it seems. Maybe we have regulations because we want them. How crazy is that? But when you † © 2016 Joseph William Singer. * Bussey Professor of Law, Harvard Law School. This Article is a revised version of the Kormendy Lecture delivered on April 27, 2015 at Claude W. Pettit College of Law at Ohio Northern University. That lecture explained the path that led me to write the accompanying article that will be published in the ONU Law Review: Joseph William Singer, Justifying Regulatory Takings, 41 OHIO N.U. L. REV. 601 (2015). I want to thank Harvard Law School for supporting the research that went into this Article. Thanks and affection go to Martha Minow, Mira Singer, and Lila Singer for their comments and suggestions and unflagging sup- port. Finally, I want to express my deep gratitude to the William & Mary Property Rights Proj- ect for honoring me with the twelfth Brigham-Kanner Property Rights Prize and for the panel participants at the 2015 conference that commented on this Article and on my other work. 1. Michael Paulson, Audra McDonald Takes to Twitter to Criticize Indiana Law, N.Y. TIMES, Mar. 27, 2015, http://artsbeat.blogs.nytimes.com/2015/03/27/audra-mcdonald-takes-to -twitter-to-criticize-indiana-law/?_r=0. 2. Heart of Atlanta Motel v. United States, 379 U.S. 241, 292 (1964) (Goldberg, J., concurring). 1 2 PROPERTY RIGHTS CONFERENCE JOURNAL [Vol. 5:001 think about it, regulations are just laws, aren’t they? Do we really hate law? There’s the rub. Americans may claim to hate regulation, but we seem to like the rule of law. But if regulation is just another word for law, then what do we want, really? Do we have some sophisti- cated distinction between regulation and law, or are we just really, really confused? We are a free and democratic society that aspires to treat each person with equal concern and respect. Doing that requires us to have law. Legal rules make everyday life possible. Law is necessary to make our lives comfortable and safe. More than that, law is what allows us to exercise our liberties in a manner compatible with a like liberty for others. Regulation may limit our options, but it also en- larges them. John Locke tells that “where there is no Law, there is no Freedom.”3 Locke is a libertarian hero, but he was a big fan of law. And if regulation is just another word for law, then according to Locke, regulation is what makes us free.4 Here is another puzzle. Americans value free markets and private property—and I am not talking only about conservatives or libertar- ians. Contrary to popular belief, liberals are not enemies of free mar- kets; we just want them to be fair. Nor are liberals enemies of private property. During the McCarthy era, liberal economist Robert Mont- gomery was called before the Texas legislature and asked if he fa- vored private property.
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