William and Mary Law School

Volume 1: Comparative Property Rights

Volume 1: Comparative Property Rights               

October 14-15, 2011 

Board of Advisors and Journal Staff

Table of Contents


Introduction

LYNDA L. BUTLER            

Property matters—whenever and wherever complex societies are involved. It may not exist in the same form or in the same situation or provide the same rights and powers, but wherever complex societies exist, their members have found a way to have property rights. Sometimes that way is formal and deliberate and sanctioned. Other times it is informal, arising from customs, cultural norms, or even outlaw behavior. (read more)

1 BRIGHAM-KANNER PROPERTY RIGHTS CONF. J. 1 (2012)

 

The Fifth Amendment Requires the Government to Pay an Owner Interest Equal to What the Owner Could Have Earned Had the Government Paid the Owner the Fair-Market Value of Their Property on the Date the Government Took the Owner’s Property

 MARK F. (THOR) HEARNE, II, STEVEN HASKINS,  & MEGHAN S. LARGENT

In this article, we review how the Fifth Amendment, and the Supreme Court’s jurisprudence applying the Fifth Amendment, require the government to pay a property owner the full fair-market value of property the government has taken, together with interest in an amount sufficient to fairly and fully compensate the owner for the government’s delay in rendering the owner payment for that property which the government took. (read more)  

1 BRIGHAM-KANNER PROPERTY RIGHTS CONF. J. 3 (2012)

 

International Comparative Property Rights: A Cross-Cultural Discipline Comes of Age

PATRICIA E. SALKIN & DANIEL GROSS 

The decision to hold the annual Brigham-Kanner Property Rights Conference in Beijing, China provided an opportunity for academics and practitioners from the United States to consider our notions of property rights in the context of a global economy. The topic is timely as just last year Professor Rachelle Alterman observed in her book, Takings International: A Comparative Perspective on Land Use Regulations and Compensation Rights, “[a]lthough this topic should be a prime target for cross-national research, very little has been published.” (read more)

1 BRIGHAM-KANNER PROPERTY RIGHTS CONF. J. 41 (2012)

 

Incorporation of the Right to Just Compensation: The Fourteenth Amendment vs. The Takings Clause

 ALAN T. ACKERMAN 

The Fourteenth Amendment, the most litigated and arguably important amendment to the U.S. Constitution, was drafted during Reconstruction by a select committee of six senators and nine representatives called the Committee of Fifteen. While the Committee’s secret meetings were not transcribed, a record of their proposals and their votes survived in a clerk’s journal. (read more

1 BRIGHAM-KANNER PROPERTY RIGHTS CONF. J. 95 (2012)

 

Two Cheers for Justice O'Connor 

JAMES W. ELY JR. 

This essay assesses the performance of Justice Sandra Day O’Connor with respect to the constitutional rights of property owners, and argues that her property jurisprudence was an assortment of different and contradictory elements. In short, the O’Connor legacy is more complex than her vigorous dissent in Kelo v. City of New London (2005) might suggest. (read more)

1 BRIGHAM-KANNER PROPERTY RIGHTS CONF. J. 149 (2012)

 

The Property Rights Decisions of Justice Sandra Day O'Connor: When Pragmatic Balancing Is Not Enough

RICHARD A. EPSTEIN 

Any search for two words to characterize Justice Sandra Day O’Connor’s judicial work over her distinguished twenty-five-year Supreme Court career would quickly hone in on “pragmatism” and “balancing.” Justice O’Connor is “pragmatic” not because she displays any trace of personal opportunism, but because of her deep institutional commitment to do what she can to promote the long-term stability of American political institutions under law. (read more

1 BRIGHAM-KANNER PROPERTY RIGHTS CONF. J. 177 (2012)

 

Constitutional Protection for Property Rights and the Reasons Why: Distrust Revisited

 FRANK I. MICHELMAN 

A country’s constitution, its body of “constitutional” or “higher” law, may contain a “bill” or “charter” of “rights”—a compilation of special guarantees respecting named aspects of personal and associational freedom, authority, and social standing. Lists typically include guarantees respecting faith and conscience, communication and expression, political franchise, security and privacy, equality, due process, and so on. By special guarantees respecting such matters, we mean assurances beyond the general ban a constitution may also contain against interference into personal and social life by legislation that is utterly and incontestably void of any credible, public justification. (read more)

1 BRIGHAM-KANNER PROPERTY RIGHTS CONF. J. 217 (2012)

  

Options for Owners and Outlaws

 LEE ANNE FENNELL 

Property rights delegate control to owners and other possessors within a compass that is specified spatially, temporally, and functionally. Within these confines, owners have choices. They can decide where and how to engage in a particular use, and which of the permissible uses to pursue at a given time. (read more)

1 BRIGHAM-KANNER PROPERTY RIGHTS CONF. J. 239 (2012)

 

Informal Institutions and Property Rights

LAN CAO 

In recent years, the call for strong and clear property rights has grown in law and development circles. In the landmark book The Mystery of Capital: Why Capitalism Triumphs in the West and Fails Everywhere Else, de Soto put forth the claim that “strong and clear” property rights, formalized rather than informal, are necessary for economic efficiency and for the protection of the poor, who occupy through squatting, for example, property that they do not own. De Soto believes that for capitalism to work in poor countries, as it does in the West, poor countries must establish a system in which individual property rights are protected and formally titled. (read more

1 BRIGHAM-KANNER PROPERTY RIGHTS CONF. J. 263 (2012)

 

The Costs of Complex Land Titles: Two Examples from China

 ROBERT C. ELLICKSON 

For thousands of years, Chinese customs and law typically have directed an owner of land, when transferring it, to retain a right to reclaim it in the future. Prior to the Communist Revolution of 1949, the pertinent rules were provided by the custom of dian, which emerged in ancient China and was formally recognized in legal codes as early as the Ming Dynasty (1368–1644).  (read more

1 BRIGHAM-KANNER PROPERTY RIGHTS CONF. J. 281 (2012)

 

Governing the Post-Socialist Transitional Commons: A Case from Rural China

 SHITONG QIAO 

We do not have permission to make this article available online.

 

Property Law with Chinese Characteristics: An Economic and Comparative Analysis

 YUN-CHIEN CHANG 

Commentators have contended that China’s Property Law of 2007 (“CPL”) demonstrates “Chinese characteristics”; yet only the most obvious ones have been spelled out. Whether the unique features of the CPL increase or decrease welfare has not been explored either. In this article, I use comparative and economic approaches to analyze this important enactment that presumably will lead socialistic China closer to capitalism. (read more

1 BRIGHAM-KANNER PROPERTY RIGHTS CONF. J. 345 (2012)

 

The Use and Abuse of Property Rights in Saving the Environment

 JAMES S. BURLING 

While freedom and property may be inseparable, the temptation to sacrifice one or the other to seemingly more critical societal goals is ever present. And when either one is threatened, so is the other. Yet, the temptation to yield either is an inexorable imperative of those who govern.  (read more

1 BRIGHAM-KANNER PROPERTY RIGHTS CONF. J. 373 (2012)

 

Property and Emerging Environmental Issues—The Optimists vs. The Pessimists

 CAROL M. ROSE 

Over the last generation, market-based or property-based mechanisms have been much discussed as a means to deal with environmental problems. A turning point in this discussion came with the United States’ acid rain control legislation of 1990, a cap-and-trade program that has been widely heralded as a model for other kinds of market-based environmental programs. (read more

1 BRIGHAM-KANNER PROPERTY RIGHTS CONF. J. 405 (2012)

 

Reconciling Property Rights and the Environment: A Review of the Chinese Property Law

 LÜ ZHONGMEI 

The Property Law of the People’s Republic of China, adopted in the fifth session of the Tenth National People’s Congress on March 16, 2007, made a useful exploration into integrating environmental protection into property law. The Property Law established the principle of comprehensive decision-making, integrating environment and development, enlarging the definition and scope of property by accepting as new forms of property rights the right to spaces and the right to use resources exclusively owned by the State, defining the obligation to protect public interests when acquiring and exercising property rights, and providing the adjoining owner’s right to environmental protection. (read more)

1 BRIGHAM-KANNER PROPERTY RIGHTS CONF. J. 421 (2012)

 

On the Legislation of Environmental Rights: Relationship Between Environmental Rights and Property Rights

 ZHOU KE & XU YA 

At present, environmental legislation and jurisdiction, as well as the difficulties inherent in protecting the environment, all call for the legal confirmation of environmental rights. However, due to the uncertainty, multi-properties, and antagonism related to environmental rights, future legislation faces a bottleneck. One effective path to solve all aforementioned problems is to make the ownership of environment distinct through a reference to the bundle of rights theory of property, as well as through an imitation of the rights of condominium owners. (read more)

1 BRIGHAM-KANNER PROPERTY RIGHTS CONF. J. 439 (2012)

 

Environmental Protection and the Rule of Law in China's Energy Sector

 LIBIN ZHANG 

The future of China’s energy industry will include market-oriented reforms. Property rights are a fundamental right in a market economy, and the protection of property rights is a cornerstone of a market economy. The definition and protection of the energy industry’s property rights include the precondition that any enterprise, including various State-owned enterprises (“SOEs”), the three major State-owned oil companies, as well as privately owned and foreign-invested enterprises, can enter the energy industry. (read more)

1 BRIGHAM-KANNER PROPERTY RIGHTS CONF. J. 467 (2012)

 

Differential Treatments of Investments in the Contractual Right to Land Management

 WENJUN WANG & SHUXIN ZHU 

In practice, there are two basic ways to invest in the contractual right to the contractual land management for equity interest. The first involves the dynamic equity system, which complies with the “voluntary joint investment with the land contract and operation right on a voluntary basis to engage in cooperation agriculture production,” provided under the Law on Land Contract in Rural Areas. The other is to invest such a right as the contribution for the establishment of a company or a cooperative. (read more

1 BRIGHAM-KANNER PROPERTY RIGHTS CONF. J. 495 (2012)