Volume 4: Defining the Reach of Property

October 30–31

Board of Advisors and Journal Staff
Table of Contents

Strong and Informed Advocacy Can Shape the Law: A Personal Journey

Michael M. Berger

Without advocacy, there are no rights. Nice words on paper, perhaps, but not rights. Rights need to be enforced to be meaningful. As the United States Supreme Court has said repeatedly, economic advantages do not become “rights” until “they have the law back of them” and when courts preclude others from interfering with those rights. (read more)

4 BRIGHAM-KANNER PROPERTY RIGHTS CONF. J. 1 (2015)

Michael M. Berger—A Career Devoted to Property Rights

Dana Berliner

2014 marks the first time a practitioner has won this award, and it is fitting that it goes to Mike Berger. Advocates do much to shape the law of property. Good advocates carefully select their cases to present issues directly and sympathetically. They identify the questions presented on appeal and, of course, at the Supreme Court. They formulate the theories and identify the lines of cases that they suggest the Court follow or reject. They introduce the evidence that either is or is not sufficient to prove their client’s side of the story. All of these decisions then have a direct role in shaping the outcomes of cases. (read more)

4 BRIGHAM-KANNER PROPERTY RIGHTS CONF. J. 23 (2015)

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. (read more)

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

Novel Takings Theories: Testing the Boundaries of Property Rights Claims

James S. Burling

In the past seventy-five years, property rights litigation has transformed from a constitutional afterthought to a major force in the defense of a fundamental right. It did not happen overnight, and it did not happen without some very heavy lifting, fortuitous circumstances, and an intellectual revival in the Academy. (read more)

4 BRIGHAM-KANNER PROPERTY RIGHTS CONF. J. 39 (2015)

On Engineering Urban Densification

Steven J. Eagle

City planning in America began as a Progressive Era exercise intended to preserve property values and implicitly incorporate the social norms of officials and planners. Over time, rigid zoning was replaced by flexibility accompanied by opaque bargaining between localities and developers. Still, even in vibrant large cities, homeowner preferences for low density largely prevailed over attempts to enhance agglomeration through increasing density. The effect is to reduce economic opportunity for individuals and make cities less prosperous. (read more)

4 BRIGHAM-KANNER PROPERTY RIGHTS CONF. J. 73 (2015)

The Bundling Problem in Takings Law: Where the Exaction Process Goes off the Rails

Richard A. Epstien

Thank you very much for having me speak at this conference, and congratulations to you, Michael, for having done so much work in this area for the past forty years. My job on this occasion is to explain why it is necessary to examine the exaction question from the ground up in order to reach a principled solution to what has become a confused body of legal doctrine about an ever-more common legal practice. (read more)

4 BRIGHAM-KANNER PROPERTY RIGHTS CONF. J. 133 (2015)

Beyond Blackstone: The Modern Emergence of Customary Law

David L. Callies & Ian Wesley-Smith

Modern laws are normally enacted by a legislature or developed by a judiciary. However, there has been another traditional source of social order throughout history—customs, which are “popular, normative pattern[s] that reflect the common understandings of valid, compulsory rights and obligations.” (read more)

4 BRIGHAM-KANNER PROPERTY RIGHTS CONF. J. 151 (2015)

The Contract Clause: Origins and Early Development

James W. Ely, Jr.

Forrest McDonald remarked that the adoption of the contract clause at the constitutional convention “is shrouded in mystery.” To unravel this mystery, one must start by considering the economic changes experienced by the American colonies during the eighteenth century. (read more)

4 BRIGHAM-KANNER PROPERTY RIGHTS CONF. J. 199 (2015)

Panel 3 Q&A: Discussion on Balancing Private Property and Community Rights

Dana Berliner, James S. Burling, Steven J. Eagle, Richard A. Epstein, Gideon Kanner, James E. Krier, Thomas W. Merrill, & Marc Poirier

EPSTEIN. I want to make some observations about what Marc said about the relationship of process to property rights. One of the key consequences of his position is that the just compensation element simply disappears from the equation. (read more)

4 BRIGHAM-KANNER PROPERTY RIGHTS CONF. J. 229 (2015)