front cover of American Pentimento
American Pentimento
The Invention of Indians and the Pursuit of Riches
Patricia Seed
University of Minnesota Press, 2001

front cover of American Property
American Property
A History of How, Why, and What We Own
Stuart Banner
Harvard University Press, 2011

In America, we are eager to claim ownership: our homes, our ideas, our organs, even our own celebrity. But beneath our nation’s proprietary longing looms a troublesome question: what does it mean to own something? More simply: what is property?

The question is at the heart of many contemporary controversies, including disputes over who owns everything from genetic material to indigenous culture to music and film on the Internet. To decide if and when genes or culture or digits are a kind of property that can be possessed, we must grapple with the nature of property itself. How does it originate? What purposes does it serve? Is it a natural right or one created by law?

Accessible and mercifully free of legal jargon, American Property reveals the perpetual challenge of answering these questions, as new forms of property have emerged in response to technological and cultural change, and as ideas about the appropriate scope of government regulation have shifted. This first comprehensive history of property in the United States is a masterly guided tour through a contested human institution that touches all aspects of our lives and desires.

Stuart Banner shows that property exists to serve a broad set of purposes, constantly in flux, that render the idea of property itself inconstant. Despite our ideals of ownership, property has always been a means toward other ends. What property signifies and what property is, we come to see, has consistently changed to match the world we want to acquire.

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Chinese State Enterprises
A Regional Property Rights Analysis
David Granick
University of Chicago Press, 1990
"We are indebted to David Granick for his thoughtful, careful, empirically documented study of the Chinese state industrial enterprise that not only provides a rarely attained comparative analysis but also possesses an explanatory power in suggesting how this system might evolve in the future."—Jeanne L. Wilson, Business Horizons
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The City after Property
Abandonment and Repair in Postindustrial Detroit
Sara Safransky
Duke University Press, 2023
In The City after Property, Sara Safransky examines how postindustrial decline generates new forms of urban land politics. In the 2010s, Detroit government officials classified a staggering 150,000 lots—more than a third of the city—as “vacant” or “abandoned.” Analyzing subsequent efforts to shrink the Motor City’s footprint and budget, Safransky presents a new way of conceptualizing urban abandonment. She challenges popular myths that cast Detroit as empty along with narratives that reduce its historical decline to capital and white flight. In connecting contemporary debates over neoliberal urbanism to Cold War histories and the lasting political legacies of global movements for decolonization and Black liberation, she foregrounds how the making of—and challenges to—modern property regimes have shaped urban policy and politics. Drawing on critical geographical theory and community-based ethnography, Safransky shows how private property functions as a racialized construct, an ideology, and a moral force that shapes selves and worlds. By thinking the city “after property,” Safransky illuminates alternative ways of imagining and organizing urban life.
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Colonial Lives of Property
Law, Land, and Racial Regimes of Ownership
Brenna Bhandar
Duke University Press, 2018
In Colonial Lives of Property Brenna Bhandar examines how modern property law contributes to the formation of racial subjects in settler colonies and to the development of racial capitalism. Examining both historical cases and ongoing processes of settler colonialism in Canada, Australia, and Israel and Palestine, Bhandar shows how the colonial appropriation of indigenous lands depends upon ideologies of European racial superiority as well as upon legal narratives that equate civilized life with English concepts of property. In this way, property law legitimates and rationalizes settler colonial practices while it racializes those deemed unfit to own property. The solution to these enduring racial and economic inequities, Bhandar demonstrates, requires developing a new political imaginary of property in which freedom is connected to shared practices of use and community rather than individual possession.
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Culture and the Question of Rights
Forests, Coasts, and Seas in Southeast Asia
Charles Zerner, ed.
Duke University Press, 2003
This collection of ethnographic and interpretive essays fundamentally alters the debate over indigenous land claims in Southeast Asia and beyond. Based on fieldwork conducted in Malaysia and Indonesia during the 1980s and 1990s, these studies explore new terrain at the intersection of environmental justice, nature conservation, cultural performance, and the politics of making and interpreting claims.
Calling for radical redefinitions of development and ownership and for new understandings of the translation of culture and rights in politically dangerous contexts—natural resource frontiers—this volume links social injustice and the degradation of Southeast Asian environments. Charles Zerner and his colleagues show how geographical areas once viewed as wild and undeveloped are actually cultural artifacts shaped by complex interactions with human societies. Drawing on richly varied sources of evidence and interpretation—from trance dances, court proceedings, tree planting patterns, marine and forest rituals, erotic poems, and codifications of customary law, Culture and the Question of Rights reveals the ironies, complexities, and histories of contemporary communities’ struggles to retain their gardens, forests, fishing territories, and graveyards. The contributors examine how these cultural activities work to both construct and to lay claim to nature. These essays open up new avenues for negotiating indigenous rights against a background of violence, proliferating markets, and global ideas of biodiversity and threatened habitat.

Contributors. Jane Atkinson, Don Brenneis, Stephanie Fried, Nancy Peluso, Marina Roseman, Anna Tsing, Charles Zerner

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Design for Liberty
Private Property, Public Administration, and the Rule of Law
Richard A. Epstein
Harvard University Press, 2011

Following a vast expansion in the twentieth century, government is beginning to creak at the joints under its enormous weight. The signs are clear: a bloated civil service, low approval ratings for Congress and the President, increasing federal-state conflict, rampant distrust of politicians and government officials, record state deficits, and major unrest among public employees.

In this compact, clearly written book, the noted legal scholar Richard Epstein advocates a much smaller federal government, arguing that our over-regulated state allows too much discretion on the part of regulators, which results in arbitrary, unfair decisions, rent-seeking, and other abuses. Epstein bases his classical liberalism on the twin pillars of the rule of law and of private contracts and property rights—an overarching structure that allows private property to keep its form regardless of changes in population, tastes, technology, and wealth. This structure also makes possible a restrained public administration to implement limited objectives. Government continues to play a key role as night-watchman, but with the added flexibility in revenues and expenditures to attend to national defense and infrastructure formation.

Although no legal system can eliminate the need for discretion in the management of both private and public affairs, predictable laws can cabin the zone of discretion and permit arbitrary decisions to be challenged. Joining a set of strong property rights with sound but limited public administration could strengthen the rule of law, with its virtues of neutrality, generality, clarity, consistency, and forward-lookingness, and reverse the contempt and cynicism that have overcome us.

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The Dispossessed
Karl Marx’s Debates on Wood Theft and the Right of the Poor
Daniel Bensaïd
University of Minnesota Press, 2021

Excavating Marx’s early writings to rethink the rights of the poor and the idea of the commons in an era of unprecedented privatization
 

The politics of dispossession are everywhere. Troubling developments in intellectual property, genomics, and biotechnology are undermining established concepts of property, while land appropriation and ecological crises reconfigure basic institutions of ownership. In The Dispossessed, Daniel Bensaïd examines Karl Marx’s early writings to establish a new framework for addressing the rights of the poor, the idea of the commons, and private property as a social institution.

In his series of articles from 1842–43 about Rhineland parliamentary debates over the privatization of public lands and criminalization of poverty under the rubric of the “theft of wood,” Marx identified broader anxieties about customary law, property rights, and capitalist efforts to privatize the commons. Bensaïd studies these writings to interrogate how dispossession continues to function today as a key modality of power. Brilliantly tacking between past and present, The Dispossessed discloses continuity and rupture in our relationships to property and, through that, to one another.

In addition to Bensaïd’s prescient work of political philosophy, The Dispossessed includes new translations of Marx’s original “theft of wood” articles and an introductory essay by Robert Nichols that lucidly contextualizes the essays.

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A Fictional Commons
Natsume Soseki and the Properties of Modern Literature
Michael K. Bourdaghs
Duke University Press, 2021
Modernity arrived in Japan, as elsewhere, through new forms of ownership. In A Fictional Commons, Michael K. Bourdaghs explores how the literary and theoretical works of Natsume Sōseki (1867–1916), widely celebrated as Japan's greatest modern novelist, exploited the contradictions and ambiguities that haunted this new system. Many of his works feature narratives about inheritance, thievery, and the struggle to obtain or preserve material wealth while also imagining alternative ways of owning and sharing. For Sōseki, literature was a means for thinking through—and beyond—private property. Bourdaghs puts Sōseki into dialogue with thinkers from his own era (including William James and Mizuno Rentarō, author of Japan’s first copyright law) and discusses how his work anticipates such theorists as Karatani Kōjin and Franco Moretti. As Bourdaghs shows, Sōseki both appropriated and rejected concepts of ownership and subjectivity in ways that theorized literature as a critical response to the emergence of global capitalism.
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The Global Debate over Constitutional Property
Lessons for American Takings Jurisprudence
Gregory S. Alexander
University of Chicago Press, 2006
Countries around the world are heatedly debating whether property should be a constitutional right. But American lawyers have largely ignored this debate, which is divided into two clear camps: those who believe making property a constitutional right undermines democracy by fostering inequality, and those who believe it provides the security necessary to make democracy possible. In The Global Debate over Constitutional Property, Gregory Alexander recasts this discussion, arguing that both sides overlook a key problem: that constitutional protection, or lack thereof, has little bearing on how a society actually treats property.

A society’s traditions and culture, Alexander argues, have a much greater effect on property rights. Laws must aim, then, to change cultural ideas of property, rather than deem whether one has the right to own it. Ultimately, Alexander builds a strong case for improving American takings law by borrowing features from the laws of other countries—particularly those laws based on the idea that owning property not only confers rights, but also entails responsibilities to society as a whole.
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The House in the Rue Saint-Fiacre
A Social History of Property in Revolutionary Paris
H. B. Callaway
Harvard University Press, 2023

A bold account of property reform during the French Revolution, arguing that the lofty democratic ideals enshrined by revolutionary leaders were rarely secured in practice—with lasting consequences.

Property reform was at the heart of the French Revolution. As lawmakers proclaimed at the time, and as historians have long echoed, the Revolution created modern property rights. Under the new regime, property was redefined as an individual right to which all citizens were entitled. Yet as the state seized assets and prepared them for sale, administrators quickly found that realizing the dream of democratic property rights was far more complicated than simply rewriting laws.

H. B. Callaway sifts through records on Parisian émigrés who fled the country during the Revolution, leaving behind property that the state tried to confiscate. Immediately, officials faced difficult questions about what constituted property, how to prove ownership, and how to navigate the complexities of credit arrangements and family lineage. Mothers fought to protect the inheritances of their children, tenants angled to avoid rent payments, and creditors sought their dues. In attempting to execute policy, administrators regularly exercised their own judgment on the validity of claims. Their records reveal far more continuity between the Old Regime and revolutionary practices than the law proclaimed. Property ownership continued to depend on webs of connections beyond the citizen-state relationship, reinforced by customary law and inheritance traditions. The resulting property system was a product of contingent, on-the-ground negotiations as much as revolutionary law.

The House in the Rue Saint-Fiacre takes stock of the contradictions on which modern property rights were founded. As Callaway shows, the property confiscations of Parisian émigrés are a powerful, clarifying lens on the idea of ownership even as it exists today.

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Imperfect Institutions
Possibilities and Limits of Reform
Thráinn Eggertsson
University of Michigan Press, 2005

The emergence of New Institutional Economics toward the end of the twentieth century profoundly changed our ideas about the organization of economic systems and their social and political foundations. Imperfect Institutions explores recent developments in this field and pushes the discussion forward by allowing for incomplete knowledge of social systems and unexpected system dynamics and, above all, by focusing explicitly on institutional policy. Empirical studies extending from Africa to Iceland are cited in support of the theoretical argument.

In Imperfect Institutions Thráinn Eggertsson extends his attempt to integrate and develop the new field that began with his acclaimed Economic Behavior and Institutions (1990), which has been translated into six languages. This latest work analyzes why institutions that create relative economic backwardness emerge and persist and considers the possibilities and limits of institutional reform.

Thráinn Eggertsson is Professor of Economics at the University of Iceland and Global Distinguished Professor of Politics at New York University. Previously published works include Economic Behavior and Institutions (1990) and Empirical Studies in Institutional Change with Lee Alston and Douglass North (1996).

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Institutional Foundations of Impersonal Exchange
Theory and Policy of Contractual Registries
Benito Arruñada
University of Chicago Press, 2012
Governments and development agencies spend considerable resources building property and company registries to protect property rights. When these efforts succeed, owners feel secure enough to invest in their property and banks are able use it as collateral for credit. Similarly, firms prosper when entrepreneurs can transform their firms into legal entities and thus contract more safely. Unfortunately, developing registries is harder than it may seem to observers, especially in developed countries, where registries are often taken for granted. As a result, policies in this area usually disappoint.  

Benito Arruñada aims to avoid such failures by deepening our understanding of both the value of registries and the organizational requirements for constructing them. Presenting a theory of how registries strengthen property rights and reduce transaction costs, he analyzes the major trade-offs and proposes principles for successfully building registries in countries at different stages of development. Arruñada focuses on land and company registries, explaining the difficulties they face, including current challenges like the subprime mortgage crisis in the United States and the dubious efforts made in developing countries toward universal land titling. Broadening the account, he extends his analytical framework to other registries, including intellectual property and organized exchanges of financial derivatives. With its nuanced presentation of the theoretical and practical implications, Institutional Foundations of Impersonal Exchange significantly expands our understanding of how public registries facilitate economic growth.

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Land of Milk and Money
A Novel
Anthony Barcellos
Tagus Press, 2012
Land of Milk and Money tells the story of the Francisco family, Portuguese immigrants who build a prosperous California dairy farm. With their growing success, plans to return to the Old Country fall by the wayside, and the legacy of the older generation becomes a source of contention among descendants competing to inherit herds of cattle and tracts of farmland. As matriarch, Teresa had devoted her life to keeping the peace in her big family. But when she dies long-simmering resentments and feuds burst into the open—and into the courtroom. Teresa, however, had seen it all coming, and her will contains a few surprises.
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Land Uprising
Native Story Power and the Insurgent Horizons of Latinx Indigeneity
Simón Ventura Trujillo
University of Arizona Press, 2020
Land Uprising reframes Indigenous land reclamation as a horizon to decolonize the settler colonial conditions of literary, intellectual, and activist labor. Simón Ventura Trujillo argues that land provides grounding for rethinking the connection between Native storytelling practices and Latinx racialization across overlapping colonial and nation-state forms.

Trujillo situates his inquiry in the cultural production of La Alianza Federal de Mercedes, a formative yet understudied organization of the Chicanx movement of the 1960s and 1970s. La Alianza sought to recover Mexican and Spanish land grants in New Mexico that had been dispossessed after the Mexican-American War. During graduate school, Trujillo realized that his grandparents were activists in La Alianza. Written in response to this discovery, Land Uprising bridges La Alianza’s insurgency and New Mexican land grant struggles to the writings of Leslie Marmon Silko, Ana Castillo, Simon Ortiz, and the Zapatista Uprising in Chiapas, Mexico. In doing so, the book reveals uncanny connections between Chicanx, Latinx, Latin American, and Native American and Indigenous studies to grapple with Native land reclamation as the future horizon for Chicanx and Latinx indigeneities.
 
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The Land We Share
Private Property And The Common Good
Eric T. Freyfogle
Island Press, 2003

Is private ownership an inviolate right that individuals can wield as they see fit? Or is it better understood in more collective terms, as an institution that communities reshape over time to promote evolving goals? What should it mean to be a private landowner in an age of sprawling growth and declining biological diversity?

These provocative questions lie at the heart of this perceptive and wide-ranging new book by legal scholar and conservationist Eric Freyfogle. Bringing together insights from history, law, philosophy, and ecology, Freyfogle undertakes a fascinating inquiry into the ownership of nature, leading us behind publicized and contentious disputes over open-space regulation, wetlands protection, and wildlife habitat to reveal the foundations of and changing ideas about private ownership in America.

Drawing upon ideas from Thomas Jefferson, Henry George, and Aldo Leopold and interweaving engaging accounts of actual disputes over land-use issues, Freyfogle develops a powerful vision of what private ownership in America could mean—an ownership system, fair to owners and taxpayers alike, that fosters healthy land and healthy economies.

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Legal Reform in Central America
Dispute Resolution and Property Systems
Martha A. Field and William W. Fisher III
Harvard University Press, 2001

The countries of Central America, afflicted for many years by civil strife and economic stagnation, are entering a new era of peace, democracy, and economic development. Now, more than ever, it is necessary for reforms in the legal system to successfully support these changes.

This volume examines two fields of law in which reforms are especially crucial: the improvement of the judicial systems and other mechanisms for resolving noncriminal disputes, and modernization of the laws governing both tangible and "intellectual" property. Among the specific topics addressed in the volume are the debate over "oralidad;" the problem of interlocutory appeals; nonjudicial procedures for resolving disputes (negotiation, mediation, conciliation, and arbitration); land and trademark registration systems; land reform in Nicaragua; the management of genetic resources; online legal databases; and legal education.

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Politics and Property Rights
The Closing of the Open Range in the Postbellum South
Shawn Everett Kantor
University of Chicago Press, 1998
After the American Civil War, agricultural reformers in the South called for an end to unrestricted grazing of livestock on unfenced land. They advocated the stock law, which required livestock owners to fence in their animals, arguing that the existing system (in which farmers built protective fences around crops) was outdated and inhibited economic growth. The reformers steadily won their battles, and by the end of the century the range was on the way to being closed.

In this original study, Kantor uses economic analysis to show that, contrary to traditional historical interpretation, this conflict was centered on anticipated benefits from fencing livestock rather than on class, cultural, or ideological differences. Kantor proves that the stock law brought economic benefits; at the same time, he analyzes why the law's adoption was hindered in many areas where it would have increased wealth. This argument illuminates the dynamics of real-world institutional change, where transactions are often costly and where some inefficient institutions persist while others give way to economic growth.
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Power over Property
The Political Economy of Communist Land Reform in China
Matthew Noellert
University of Michigan Press, 2020
Following the end of World War II in 1945, the Chinese Communist Party (CCP) spent the next three decades carrying out agrarian reform among nearly one-third of the world’s peasants. This book presents a new perspective on the first step of this reform, when the CCP helped redistribute over 40 million hectares of land to over three hundred million impoverished peasants in the nationwide land reform movement. This land reform, the founding myth of the People’s Republic of China (1949–present) and one of the largest redistributions of wealth and power in history, embodies the idea that an equal distribution of property will lead to social and political equality.
 
Power Over Property argues that in practice, however, the opposite occurred: the redistribution of political power led to a more equal distribution of property. China’s land reform was accomplished not only through the state’s power to define the distribution of resources, but also through village communities prioritizing political entitlements above property rights. Through the systematic analysis of never-before studied micro-level data on practices of land reform in over five hundred villages, Power Over Property demonstrates how land reform primarily involved the removal of former power holders, the mobilization of mass political participation, and the creation of a new social-political hierarchy. Only after accomplishing all of this was it possible to redistribute land. This redistribution, moreover, was determined by political relations to a new structure of power, not just economic relations to the means of production.
 
The experience of China’s land reform complicates our understanding of the relations between economic, social, and political equality. On the one hand, social equality in China was achieved through political, not economic means. On the other hand, the fundamental solution was a more effective hierarchy of fair entitlements, not equal rights. This book ultimately suggests that focusing on economic equality alone may obscure more important social and political dynamics in the development of the modern world.
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Private Property and the Endangered Species Act
Saving Habitats, Protecting Homes
Edited by Jason F. Shogren
University of Texas Press, 1998

Our whole nation benefits from the preservation of natural habitats and their diversity of animal and plant species—yet small groups of private landowners often bear most of the costs of setting land aside for conservation purposes. This imbalance has generated many conflicts since the passage of the Endangered Species Act in 1973 and remains one of the most controversial issues to be resolved as the ESA makes its way through Congress for reauthorization.

To provide policy makers, landowners, and other stakeholders in the ESA debates with impartial baseline information, this book offers multidisciplinary perspectives on the role that private property plays in protecting endangered species in the United States. The opening chapter traces the evolution of the ESA and set forth the parameters of the debate over regulation of private property. Four subsequent chapters explore the judicial and economic implications of ESA and suggest how issues of scale and diversity affect the implementation of the ESA on private property. The volume concludes with eight principles to help frame the ongoing ESA reauthorization debate, developed by the University of Wyoming's Institute for Environment and Natural Resources Policy Board, the sponsor of the research presented in this book.

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Private Property and the Limits of American Constitutionalism
The Madisonian Framework and Its Legacy
Jennifer Nedelsky
University of Chicago Press, 1990
The United States Constitution was designed to secure the rights of individuals and minorities from the tyranny of the majority—or was it? Jennifer Nedelsky's provocative study places this claim in an utterly new light, tracing its origins to the Framers' preoccupation with the protection of private property. She argues that this formative focus on property has shaped our institutions, our political system, and our very understanding of limited government.
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The Progressive Assault on Laissez Faire
Robert Hale and the First Law and Economics Movement
Barbara H. Fried
Harvard University Press, 1998

Law and economics is the leading intellectual movement in law today. This book examines the first great law and economics movement in the early part of the twentieth century through the work of one of its most original thinkers, Robert Hale. Beginning in the 1890s and continuing through the 1930s, progressive academics in law and economics mounted parallel assaults on free-market economic principles. They showed first that "private," unregulated economic relations were in fact determined by a state-imposed regime of property and contract rights. Second, they showed that the particular regime of rights that existed at that time was hard to square with any common-sense notions of social justice.

Today, Hale is best known among contemporary legal academics and philosophers for his groundbreaking writings on coercion and consent in market relations. The bulk of his writing, however, consisted of a critique of natural property rights. Taken together, these writings on coercion and property rights offer one of the most profound and elaborated critiques of libertarianism, far outshining the better-known efforts of Richard Ely and John R. Commons. In his writings on public utility regulation, Hale also made important contributions to a theory of just, market-based distribution.

This first, full-length study of Hale's work should be of interest to legal, economic, and intellectual historians.

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Property and Values
Alternatives To Public And Private Ownership
Edited by Charles Geisler and Gail Daneker
Island Press, 2000

Property and Values offers a fresh look at property rights issues, bringing together scholars, attorneys, government officials, community development practitioners, and environmental advocates to consider new and more socially equitable forms of ownership. Based on a Harvard Law School conference organized by the Equity Trust, Inc., in cooperation with the American Bar Association's Commission on Homelessness and Poverty, the book:

  • explains ownership as an evolving concept, determined by social processes and changing social relations
  • challenges conventional public-private ownership categories
  • surveys recent studies on the implications of public policy on property values
  • offers examples from other cultures of ownership realities unfamiliar or forgotten in the United States
  • compares experiments in ownership/equity allocation affecting social welfare and environmental conservation
The book synthesizes much innovative thinking on ownership in land and housing, and signals how that thinking might be used across America. Contributors – including David Abromowitz, Darby Bradley, Teresa Duclos, Sally Fairfax, Margaret Grossman, C. Ford Runge, William Singer and others – call for balance between property rights and responsibilities, between private and public rights in property, and between individual and societal interests in land.

Property and Values is a thought-provoking contribution to the literature on property for planners, lawyers, government officials, resource economists, environmental managers, and social scientists as well as for students of planning, environmental law, geography, or public policy.

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Prosperity without Greed
How to Save Ourselves from Capitalism
Sahra Wagenknecht
Campus Verlag, 2016
It is time to leave capitalism behind. In Prosperity without Greed, Sahra Wagenknecht shows that we live in a system of economic feudalism that has nothing to do with a free market economy, where the innovations we require to solve myriad important societal problems are not forthcoming. How can it be, Wagenknecht asks, that technological developments financed by the taxpayer end up enriching private companies even if those companies’ activities violate public interests? Through clear analysis and concrete proposals, Wagenknecht suggestss new forms of ownership and sketches the outlines of an innovative and just economy that instead promotes and rewards talent, real performance, and start-ups with groundbreaking ideas.
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Regulatory Takings
Law, Economics, and Politics
William A. Fischel
Harvard University Press, 1995

Are rent controls and zoning regulations unconstitutional? Should the Supreme Court strike down the Endangered Species Act when its administration interferes with the use of private property? These questions are currently debated under the doctrine of regulatory takings, and William Fischel’s book offers a new perspective on the issue.

Regulatory Takings argues that the issue is not so much about the details of property law as it is about the fairness of politics. The book employs jurisprudential theories, economic analysis, historical investigation, and political science to show why local land use regulations, such as zoning and rent control, deserve a higher degree of judicial scrutiny than national regulations. Unlike other books on this topic, Regulatory Takings goes beyond case law to buttress its arguments. Its reality checks range from reviews of statistical evidence to local inquiries about famous takings cases such as Pennsylvania Coal v. Mahon and Lucas v. South Carolina Coastal Commission. The gap between legal theory and on-the-ground practice is one reason that Fischel investigates alternative means of protecting property rights.

Local governments are often deterred from unfairly regulating portable assets by their owners’ threat of “exit” from the jurisdiction. State and federal government regulations are disciplined by property-owner coalitions whose “voice” is clearly audible in the statehouses and in Congress.

Constitutional courts need to preserve their resources for use in areas in which politics is loaded against the property owner. Regulatory Takings advances an economic standard to decide when a local regulation crosses the border from legitimate police power to a taking that requires just compensation for owners who are adversely affected.

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Rights to Nature
Ecological, Economic, Cultural, and Political Principles of Institutions for the Environment
Edited by Susan S. Hanna, Carl Folke, and Karl-Goran Maler; Foreword by Kenneth Arrow
Island Press, 1996

Property rights are a tool humans use in regulating their use of natural resources. Understanding how rights to resources are assigned and how they are controlled is critical to designing and implementing effective strategies for environmental management and conservation.

Rights to Nature is a nontechnical, interdisciplinary introduction to the systems of rights, rules, and responsibilities that guide and control human use of the environment. Following a brief overview of the relationship between property rights and the natural environment, chapters consider:

  • ecological systems and how they function
  • the effects of culture, values, and social organization on the use of natural resources
  • the design and development of property rights regimes and the costs of their operation
  • cultural factors that affect the design and implementation of property rights systems
  • coordination across geographic and jurisdictional boundaries
The book provides a valuable synthesis of information on how property rights develop, why they develop in certain ways, and the ways in which they function. Representing a unique integration of natural and social science, it addresses the full range of ecological, economic, cultural, and political factors that affect natural resource management and use, and provides valuable insight into the role of property rights regimes in establishing societies that are equitable, efficient, and sustainable.
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The Shackles of Modernity
Women, Property, and the Transition from the Ottoman Empire to the Greek State, 1750–1850
Evdoxios Doxiadis
Harvard University Press, 2011

This book explores the relationship between women and property in the Greek lands and their broader social position in the century that culminated with the establishment of the national Greek state (1750–1850). Evdoxios Doxiadis focuses on the status and rights of Greek women in the later Ottoman period, the decade-long Greek War of Independence, and the first decades of the Greek state, seeking to reveal the impact that the pursuit of modernization by the early Greek governments had on women. Through the systematic examination of numerous legal documents in notarial archives from four distinct regions (Naxos, Mykonos, Athens, and Leonidio), the position of women in Greek societies of the period is illuminated in all its complexity and regional diversity. Special emphasis is placed on women’s ability in some areas to defend their property rights and be active economic agents.

Although the Greek revolutionaries and the Greek state did not curtail the rights of women with respect to property, the very institutions that were fundamental in the creation of the Greek state transformed the established relationship between women and property. Doxiadis shows that modernization proved to be an oppressive force for Greek women—though in a much more clandestine fashion than perhaps expected in other European states.

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The Takings Issue
Constitutional Limits On Land Use Control And Environmental Regulation
Robert Meltz, Dwight H. Merriam, and Richard M. Frank; Foreword by Fred Bosselman David Callies John Banta
Island Press, 1999
As challenges to land use and environmental controls by landowners and the property-rights movement have become more frequent, the concept of "takings" -- government action that excessively limits a property-owner's use of private land -- has become both increasingly familiar to the public, and increasingly problematic for planners, local officials, and anyone involved with making day-to-day decisions about land use. A vast and diverse body of case law has come into existence over the past several decades, and the controversy generated by recent legal decisions has resulted in a significant level of ideological bias in much of what has been written on the topic.This volume is an objective and authoritative examination that considers all aspects of the takings issue. It is a much-needed guide and overview that introduces and explains issues surrounding regulatory takings on the local, state, and federal level for anyone involved with private land and government limitation of its permissible use. The authors describe where the law is now, predict where it might go in the future, and review conflict-reducing solutions to a variety of situations. They condense an immense amount of information into a clear and accesible format, making the book equally valuable for lawyers and non-lawyers alike.The Takings Issue addresses procedural hurdles involved in getting a takings issue heard by a court, examines what does and does not constitute a taking, and considers the remedies available to landowners involved in takings actions. It treats concerns such as zoning, dedications and exactions, subdivision platting, and other local issues in some detail, and also considers state and federal issues involving industrial site approval, endangered species and wetlands protection, restrictions on access to resources on federal lands, and other topics.The book is an essential reference for planners, land use lawyers, developers, and students of planning and law, as well as for policymakers and citizens involved with takings issues.
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Takings
Private Property and the Power of Eminent Domain
Richard A. Epstein
Harvard University Press, 1985

If legal scholar Richard Epstein is right, then the New Deal is wrong, if not unconstitutional. Epstein reaches this sweeping conclusion after making a detailed analysis of the eminent domain, or takings, clause of the Constitution, which states that private property shall not be taken for public use without just compensation. In contrast to the other guarantees in the Bill of Rights, the eminent domain clause has been interpreted narrowly. It has been invoked to force the government to compensate a citizen when his land is taken to build a post office, but not when its value is diminished by a comprehensive zoning ordinance.

Epstein argues that this narrow interpretation is inconsistent with the language of the takings clause and the political theory that animates it. He develops a coherent normative theory that permits us to distinguish between permissible takings for public use and impermissible ones. He then examines a wide range of government regulations and taxes under a single comprehensive theory. He asks four questions: What constitutes a taking of private property? When is that taking justified without compensation under the police power? When is a taking for public use? And when is a taking compensated, in cash or in kind?

Zoning, rent control, progressive and special taxes, workers’ compensation, and bankruptcy are only a few of the programs analyzed within this framework. Epstein’s theory casts doubt upon the established view today that the redistribution of wealth is a proper function of government. Throughout the book he uses recent developments in law and economics and the theory of collective choice to find in the eminent domain clause a theory of political obligation that he claims is superior to any of its modern rivals.

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front cover of Titles, Conflict, and Land Use
Titles, Conflict, and Land Use
The Development of Property Rights and Land Reform on the Brazilian Amazon Frontier
Lee J. Alston, Gary D. Libecap, and Bernardo Mueller
University of Michigan Press, 1999
The Amazon, the world's largest rain forest, is the last frontier in Brazil. The settlement of large and small farmers, squatters, miners, and loggers in this frontier during the past thirty years has given rise to violent conflicts over land as well as environmental duress. Titles, Conflict, and Land Use examines the institutional development involved in the process of land use and ownership in the Amazon and shows how this phenomenon affects the behavior of the economic actors. It explores the way in which the absence of well-defined property rights in the Amazon has led to both economic and social problems, including lost investment opportunities, high costs in protecting claims, and violence. The relationship between land reform and violence is given special attention.
The book offers an important application of the New Institutional Economics by examining a rare instance where institutional change can be empirically observed. This allows the authors to study property rights as they emerge and evolve and to analyze the effects of Amazon development on the economy. In doing so they illustrate well the point that often the evolution of economic institutions will not lead to efficient outcomes.
This book will be important not only to economists but also to Latin Americanists, political scientists, anthropologists, and scholars in disciplines concerned with the environment.
Lee Alston is Professor of Economics, University of Illinois, and Research Associate for the National Bureau of Economic Research. Gary Libecap is Professor of Economics and Law, University of Arizona, and Research Associate for the National Bureau of Economic Research. Bernardo Mueller is Assistant Professor, Universidade de Brasilia.
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Trespassing
An Inquiry into the Private Ownership of Land
John Hanson Mitchell
University Press of New England, 2015
Trespassing, “a thoughtful, beautifully written addition to environmental and regional literature” (Kirkus Reviews), is a historical survey of the evolution of private ownership of land, concentrating on the various land uses of a 500-acre tract of land over a 350-year period. What began as wild land controlled periodically by various Native American tribes became British crown land after 1654, then private property under US law, and finally common land again in the late twentieth century. Mitchell considers every aspect of the important issue of land ownership and explores how our attitudes toward land have changed over the centuries.
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Water, Community, and the Culture of Owning
Eric T. Freyfogle
University of Utah Press, 2018
In this timely work, Eric Freyfogle probes the long-simmering struggles in the American West to address water-related problem. The big challenge is to resolve water shortages and meet high-valued water needs while also improving river ecosystems. These water conflicts, he suggests, have less to do with our contentious political differences than they do with longstanding core elements of American culture—inherited, shared ways of understanding our place in nature that no longer make good sense. Particularly troublesome are the ways we fragment it, valuing its parts as discrete commodities. Also at play is our cultural inability to think clearly about how best to draw the line between the legitimate use of nature and the abuse of it. 
 
Building on these cultural critiques, Freyfogle takes up the issue of private property rights, highlighting the longstanding flexibility of this key American institution as well as the moral imperative to ensure that property rights aren’t used in ways that harm communities. Outdated understandings about private property, he concludes, have further confused our understanding and made sensible solutions to water problems even harder to imagine. Water-policy reform won’t happen, Freyfogle argues, until we reconsider how we understand nature and take charge of the institution of ownership, recasting it so as to increase the benefits it generates for everyone. If we can do that, solutions to water troubles could prove easier than we expect. The work concludes with an original, sweeping policy proposal to resolve the West’s water shortages and meet environmental needs in ways fair to all.
 
This lecture was presented on March 22, 2017, at the 22nd annual symposium sponsored by the Wallace Stegner Center for Land, Resources and the Environment at the S. J. Quinney College of Law, University of Utah.
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Who Owns America?
Social Conflict over Property Rights
Edited by Harvey M. Jacobs
University of Wisconsin Press, 1998

Land ownership by individual citizens is a cornerstone of American heritage and a centerpiece of the American dream. Thomas Jefferson called it the key to our success as a democracy. Yet the question of who owns America not only remains unanswered but is central to a fundamental conflict that can pit private property rights advocates against government policymakers and environmentalists.
    Land use authority Harvey M. Jacobs has gathered a provocative collection of perspectives from eighteen contributors in the fields of law, history, anthropology, economics, sociology, forestry, and environmental studies. Who Owns America? begins with the popular view of land ownership as seen though the television show Bonanza! It examines public regulation of private land; public land management; the roles culture and ethnic values play in land use; and concludes with Jacobs’ title essay.
    Who Owns America? is a powerful and illuminating exploration of the very terrain that makes us Americans. Its broad set of theoretical and historical perspectives will fascinate historians, environmental activists, policy makers, and all who care deeply about the land we share.

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front cover of Wildlife as Property Owners
Wildlife as Property Owners
A New Conception of Animal Rights
Karen Bradshaw
University of Chicago Press, 2020
Humankind coexists with every other living thing. People drink the same water, breathe the same air, and share the same land as other animals. Yet, property law reflects a general assumption that only people can own land. The effects of this presumption are disastrous for wildlife and humans alike. The alarm bells ringing about biodiversity loss are growing louder, and the possibility of mass extinction is real. Anthropocentric property is a key driver of biodiversity loss, a silent killer of species worldwide. But as law and sustainability scholar Karen Bradshaw shows, if excluding animals from a legal right to own land is causing their destruction, extending the legal right to own property to wildlife may prove its salvation. Wildlife as Property Owners advocates for folding animals into our existing system of property law, giving them the opportunity to own land just as humans do—to the betterment of all.
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