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Article
Property-as-Society
Wisconsin Law Review
  • Timothy M. Mulvaney, Texas A&M University School of Law
Document Type
Article
Publication Year
2018
Abstract

Modern regulatory takings disputes present a key battleground for competing conceptions of property. This Article offers the following account of the three leading theories: a libertarian view sees property as creating a sphere of individual freedom and control (property-as-liberty); a pecuniary view sees property as a tool of economic investment (property-as-investment); and a progressive view sees property as serving a wide range of evolving communal values that include, but are not limited to, those advanced under both the libertarian and pecuniary conceptions (property-as-society). Against this backdrop, the Article offers two contentions. First, on normative grounds, it asserts that the conception of property-as-society presents a more useful structure for assessing whether an allocative choice is fair and just absent compensation than the conceptions of property-as-liberty and property-as-investment. Second, on doctrinal grounds, it suggests that the property-as-liberty conception has fallen from grace in takings jurisprudence since its peak in Lucas v. South Carolina Coastal Council in 1992; moreover, while the property-as-investment understanding remains of some force, the property-as-society conception has ascended to a position of jurisprudential prominence, as most recently evidenced in both the majority and the dissenting opinions in the 2017 matter of Murr v. Wisconsin.

Num Pages
60
FIle Type
PDF
Citation Information
Timothy M. Mulvaney. "Property-as-Society" Wisconsin Law Review Vol. 2018 Iss. 5 (2018) p. 911 - 970
Available at: http://works.bepress.com/timothy_mulvaney/53/