Comparative Constitutionalism

At the other end of the spectrum, Robert Hale argues that all exchange is merchandise she had ever purchased from the store, within the past five years, despite the fact that she had paid for the majority of the furniture. The court condemned the store's exploitative business practices and held that such contracts were unconscionable and thus unenforceable. coercive by the mere fact that we are forced to bargain for exchange at all. We must bargain because we are in a system in which the state enforces property rights, so the only way to get anything is through exchange. Many proponents of the equitable doctrines define coercion somewhere between the two extremes. They stress that freedom of contract presupposes fairness in opportunity and that imperfections in our society have created inequitable circumstances for many people. Economic coercion is fundamentally unfair because it amplifies the pre-existing inequities of our society and, therefore, freedom of contract is in fact threatened by it.
In the abstract, predominantly private, context of market contracts, the freedom of contract arguments are persuasive. However, where the contracting parties involved are the government and very low-income individuals, and the substance of the bargain involves affordable housing and the constitutional right to be free from unreasonable searches, the equitable arguments gain force.

The convoluted, and often incoherent, nature of takings law has frustrated property owners and regulators alike, particularly in the context of environmental regulation. Property rights legislation is the natural, though misguided, outgrowth of this frustration. Unfortunately, property rights legislation begins with the underlying, but incorrect, premise of regulatory takings law - that the economic impact of a regulation on the regulated property is critical to the outcome  -  and attempts to create bright-line tests that trigger compensation based solely on reductions in value. As the third part of this Article illustrates, the end result is muddled analyses and incorrect outcomes. First, however, an overview of the property rights movement and the types of property rights legislation enacted to date is provided.

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The notion may seem absurd. "The whole idea that the government needs to pay people not to do bad things is ridiculous," says John Humbach, a property-rights expert at Pace University. "The reason the government exists in the first place is to define what is for the common good and what's not." 

Absurd or not, the movement has be come a political force to be reckon with, linked as it is to the powerful notion that landowners should be allowed to do what they want with their property. "People better start taking this movement seriously," says Robert Meltz, a property law expert at the Congressional Research Service. "This isn't just some fringe element anymore." The proof can be found in Congress, where proposed property rights amendments are delaying nearly al major environmental legislation.

At the state level, "takings" bills similar to those in Congress have been introduced in 37 state legislatures in the past two years; nearly all have been defeated. Many of the bills would require taxpayers to "compensate" landowners, including corporations, for property values diminished because of regulation. Such payments could be extremely costly, and the measures could erode state authority to protect public health and safety - as well as wreak havoc on long-established planning tools such as zoning.

For the most part, the new movement is not faring well in the courts either, but it has scored some wins. In one case directly affecting wildlife, last March the U.S. Court of Appeals for the District of Columbia struck down a U.S. Fish and Wildlife Service regulation that prevented private landowners from destroying habitat of federally listed species.

No one disagrees that if the government takes all of a person's property for public use, then just compensation is required. But the new movement pushes the argument a big step further, contending that regulation of landowners' ability to do as they wish with their property is a "taking" as well. The movement was sparked by the 1987 book Takings, by University of Chicago professor Richard Epstein. Epstein argued that the broad definition of a taking "invalidates much of the 20th-century legislation."

Such arguments mask the myriad ways governments increase the value of public property. Partly for this reason, editorial boards at newspapers across the country live condemned property-rights legislation In one April 1994 editorial, The Atlanta Constitution called the demands of property rights forces "pure hypocrisy." As an example, it cited Arizona, "one of the fastest-growing states in the country and a hotbed of property-rights legislation. But its cities and suburbs would still be worthless desert if not for water brought from hundreds of miles away, at huge expense to the federal government."

Other examples: Developers in coastal areas that depend on taxpayer-subsidized insurance and agri-businesses that thrive with federal price support and crop insurance. Property values often exist only because of sewers, roads and other government-paid amenities.

Is this because of an early recognition for a need of monopolies? 

The constitutional safeguards which surround private property in the United States are exceptionally strong. Between confiscation and the multitude stand the state and the federal courts. In Cutting vs. Goddard, decided in 1901, the Supreme Court held that a return of 10.9 per cent on the investment is not unreasonably high and that a return of 5.3 per cent is unreasonably low. In decreeing the dissolution of the Standard Oil and the American Tobacco Companies, the same tribunal left the defendant companies in possession of everything which they had succeeded in amassing by unlawful methods. Nowhere in either of these decisions is there any hint that restitution ought to be made. On the contrary, every precaution necessary to conserve the property which monopoly control had garnered together was scrupulously observed. In the course of the Standard Oil decision, the Chief-Justice remarked "that one of the fundamental purposes of the statute (the Anti-trust Act) is to protect, not to destroy, rights of property." No penalty was inflicted other than dissolution and the prohibition of acts violative of the statute. So far as constitutional guaranties are concerned, the most strenuous advocate of property rights could scarcely ask for anything more.

Nevertheless, the extent to which the Supreme Court conserves the rights of property is easily exaggerated. The Dred Scott decision did not prevent the overthrow of slavery, and moreover without compensation. On the contrary, it hastened its downfall and proved to be the one thing from which the slave power might well have prayed to be delivered. Much comfort was extracted by an influential portion of the property-owning class from the income tax decision in 1895, but the cost of what was gained from that decision has seldom figured properly in the account. Probably no decision of the Supreme Court since the Civil War has excited so much dissatisfaction or fallen so flat. In the opinion of many the court as now constituted would find a way of upholding a similar measure even though the constitution had not been amended. To save the face of the court was the strongest argument for proposing the income-tax amendment. But the decision of 1895 fanned the fires of social discontent. It unmasked the motives of those opposed to an income tax. On the one hand, are those well able to bear the burden of taxation upon whom a properly administered income tax would to a considerable extent rest. On the other hand, are the beneficiaries of protection who fear that an income tax will deprive them of one pretext for the maintenance of the tariff. The glaring injustice of any income tax apportioned among the several states according to population, in conformity with the court's decision, made such a tax impracticable. One effect was to discredit the court itself. Another fact had a similar effect. In its first decision, the court divided evenly on certain of the points at issue. After reargument it stood five to four against the act on these points. Far from conserving the social order, the income-tax decision did quite the reverse.

I believe that the question of complete monopoly or the ultimate effect has nothing whatever to do with it except in so far as it may be evidence of the probable intention of the conspirators at the inception of the combination. It is to me perfectly clear that I may obtain, with one or more associates, an actual, complete, impregnable one hundred per cent monopoly, and yet be perfectly within my law; on the other hand I may combine with two or three or more with the intention of restraining trade, of getting a monopoly, of destroying competitors, and ours will be a criminal combination though we fail in our purpose as rapidly and completely as did some of the earlier trusts, for instance the cordage trust, which only lasted a year or two before it went down in utter smash. If I happen to own, let us say, the only cordage works, at Plymouth, in the State of Massachusetts, except a small concern, let us say, at Newburyport, in the same State, I have a perfect right to buy out my competitor, there being no unfair act committed. I am inclined to think even that I and my competitor may form a consolidated cordage company and, failing evidence to show that we intend then or ever to get a monopoly by fair means or foul, we are within our right; that is to say if our motive is merely that of making a bigger concern or securing a profitable bargain. That motive being perfectly lawful will make our combination lawful. In other words it grows out of the natural relation that I have to my neighbor, whose property I purchased. And this brings me to the third and most modern test, which I mention merely because it is advanced in the most recent textbook, the work of Mr. Cooke of New York -  Combinations, Monopolies and Labor Unions. In his preface he rejects the old test, for which I am still contending, of intention; but it appears from the context that he objects to it principally because it has been repealed by the modern English statute, the Trade Disputes Act of 1906. Now what we may do by statute is one thing. Mr. Gompers has been trying for thirty years to get that English statute and its predecessor, the Conspiracy and Protection of Property Act, 38 and 39 Vict. c. 86, adopted in the United States, but has only succeeded in the States of Maryland, California and Oklahoma. His bill to adopt the English statute has been pigeon-holed in Congress for a generation. However, he is entirely within his rights in leading the agitation, and we may, of course, enact such statute yet if we deem it wise, and if the statute would be constitutional. Fortunately or unfortunately it would not be, for it is the clearest kind of class legislation; and that I take to be forbidden, expressly or impliedly, in every State Constitution in this country, except perhaps that of Oklahoma, as well as by the clear implication of the Fourteenth Amendment.

Most importantly, in comparison how do other countries address property rights?

Historically, Anglo-American law has given great weight to the importance of private property rights. John Locke stressed the critical role that property plays in supporting a capitalist society, arguing that unless individuals can be certain that property rights will be recognized and protected by the law, they will have little incentive to either develop their resources or to engage in trade with others. Protection of private property rights, however, has never been absolute in the U.S. legal system. The law constantly struggles to balance private property rights and public interests, with mixed results.

In the area of copyrights, patents and trademarks legal challenges are rendered complex because of the very ambiguity of the Berne, Paris and other Conventions. Tremendous ambiguities remain within these frameworks and enforcement is sporadic at best. For example, there is no one operative Berne instrument with the result that national case law ends up as the most relevant consideration in adjudicating disputes within a country. What has to take place in the public policy process is that a set of common rules and regulations must be forged that would have worldwide validity. In developing countries the legal protection of private property is generally weak because laws are not stringent and the legal process itself is very slow and complicated, as well as being highly politicized. In terms of time and transaction costs it is not very effective. 

In North America and the European Union, legal approaches to real property disputes are more viable than in developing countries.

Independent of the effect on the freedom of movement, the persistence of propiska does not bode well for the rule of law in post-Soviet Russia. The role of the Constitution, both in terms of civil rights and in the regulation of federal-regional relations, is questionable as long as the Constitutional Court's decisions remain unimplemented. Further, at both national and subnational levels, economic and political realities continue to take precedence over legal norms. Russian citizens know that legal texts, even when they come repeatedly and from a variety of sources, are not dispositive. Authorities can hardly expect law-abiding behavior among the population as long as the government failures to adhere to its own laws.

If one goes beyond Western culture, the contrast is even more stark. Islamic cultures, which stretch from Morocco to Indonesia and account for over a quarter of the world's population, articulate a coherent, sophisticated and distinctively non-Western view of property rights. Buddhism also possesses a long and nuanced tradition regarding economic justice and property.

Conveyancers from the common law world tend to reason according to mental habits descended from the medieval law of property, as depicted by Littleton as early as the fifteenth century. This makes the common law path far different from the civil law. In civil law, the ideology of the French revolution has expelled most of the residues of the feudal structures from modern property law content as well as taxonomy. This surviving feudal subtradition in property law characterizes the greatest part of the differences between the civil law and its common law counterpart. Other subtraditions within common law have been identified which render the term "property" rich in meanings, making comprehension and comparison particularly difficult in this area.

For example, the opposition between free and unfree tenure is still important and encompasses within the domain of the common law of property a large number of transactions that in civil law are purely contractual. The feudal lord could decide not to infeudate the land, but instead have a peasant take care of it to plow and grow crops. This other kind of property, the unfree tenure (villeinage or copyhold), developed outside of the feudal schemes of real property. Free tenure, with its feudal origin, always coexisted alongside other proprietary arrangements of different origin.

The estates theory is only conceivable in relation to real property (freehold). Today, freehold exists alongside nonfreehold, or leasehold (with which copyhold should not be confused). Leasehold is the modern relationship between a landlord to a tenant. It constitutes a contractual relationship in the civilian law and is a branch of the law of property in the common law. Leasehold origins date back to commercial practice which aimed at evading anti-usury laws. Historically, it was not protected by a real action, and therefore was not classified as real property but instead as personal property. However, the action of ejectment subsequently gave the tenant a remedy to recover the property so that leaseholds were at odds within the category of personal property (also known as chattels). Today, leaseholds are ambiguously contained in the ad hoc category of "chattels real," sharing some of the two main branches of property law.

Personal property covers several categories and is divided into several subcategories. The major dichotomy occurs between "choses in possession" (chose in law French, the language of the classic common law, means "thing") and "choses in action"; the former are movable goods capable of control and physical enjoyment, such as a book. For a civil lawyer, on the other hand, the latter (a bank account, a bond, an insurance policy, etc.) have contractual nature.

The comparison of property law between civil law and common law is rendered more complex by the number of subtraditions developed in common law countries alongside the aforementioned technical ones. Such traditions are more common in the Western legal tradition and result from transnational circulation of legal and philosophical ideas. Alongside this technical, strictly professional meaning developed within the legal profession at Westminster Hall, the term "property" is used within the modern constitutional tradition (relevant mainly in the United States), where the natural law ideology, reflected in the French revolution and originally rooted in the civil law, becomes "enacted" in the common law. Furthermore, analytical jurisprudence, a leading paradigm of Anglo-American property theory, speaks of property within a notion derived from German legal positivism. Today, in the property-theory literature, both in the civil law and in the common law a much more uniform language than the one used by practical lawyers is spoken.

Some have sxplicit, other do not.  What are the advantages and idsadvantages exemplified by both systems?

Professor Richard Epstein's pathbreaking 1985 book, Takings: Private Property and the Power of Eminent Domain, is widely viewed as the theoretical foundation for the property rights movement and, indeed, the movement reflects in many ways Epstein's strong libertarian bent. Property rights advocates espouse two objectives: 1) to minimize regulation that reduces the value of private property or restricts its use; and 2) to ensure that property owners will be compensated when regulation does reduce a property's value or restrict its use. Interestingly, property rights advocates seldom argue that government regulation is not important; rather, they argue that when regulation is necessary, the government must pay for any and all costs imposed upon property owners by those laws.

Critics of property rights legislation, on the other hand, argue that the legislation simply responds to the strident demands of a small and selfish minority who wish to gain the right to pollute at the expense of the general public and that the costs attached to such legislation could prove disastrous to local and state governments. They argue that land use regulation is necessary to force individual property owners to internalize the costs associated with their actions and to prevent such owners from forcing the public to bear the costs associated with decisions that may benefit the individual but harm the public.

 

Opponents of property rights legislation have come from various segments of society, though environmentalists and land use planners are among the most organized and vocal of the anti-legislation movement. It is unclear to what extent such legislation enjoys popular support. Property rights statutes enacted by the Arizona and Washington legislatures were overturned by popular referenda.

Whether property rights legislation is the outgrowth of pressure from self-interested private property owners or some larger ideological rejection of the role of modern government in the economy, the end result has been a continuing (but so far unsuccessful) series of proposals for legislative reform at the federal level, and a growing number of enacted state measures. Property rights legislation has been proposed in every state since 1991 and over one-half of the states have enacted property rights protection measures of one type or another.

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