Volume 4

Michael M. Berger—a Path to Fairness

Janet Bush Handy

The awarding of the 2014 Brigham-Kanner Property Rights Prize during the Eleventh Annual Brigham-Kanner Property Rights Conference at William & Mary Law School to Michael Berger provided the opportunity to recognize that the path which he followed to reshape our country’s property rights jurisprudence was set in his seminal law review article, To Regulate, or Not to Regulate—Is That the Question? Reflections on the Supposed Dilemma between Environmental Protection and Private Property Rights.1 After writing this article Mr. Berger spent the next forty years working on the cases that would provide the path to an understanding that the only valid understanding of constitutional property rights must recognize the concept of fairness. The themes that he would repeat to the Supreme Court in both winning and losing cases were well established and explained in the 1975 Reflections. Those themes continue to resonate in constantly evolving jurisprudence of property rights.

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4 BRIGHAM-KANNER PROPERTY RIGHTS CONF. J. 31 (2015)