Protecting ecological integrity within the balancing function of property law.

The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed.... The substance of the law at any given time pretty nearly corresponds, so far as it goes, with what is then understood to be convenient; but its form and machinery, and the degree to which it is able to work out desired results, depend very much upon its past.(1)

I. INTRODUCTION: THE BALANCING FUNCTION OF PROPERTY LAW

Understanding the process by which property rules are produced and shaped is important, because those rules define what an owner may or may not do with her resources, which is to say that the rules define her property rights.(2) Property law provides society with a means to peacefully resolve a dispute between a resource owner and other persons who may be affected by the owner's use of her resource. In the excerpt quoted above from The Common Law, Justice Holmes shared his insight on the process by which a court interprets property rules.(3) Holmes's description of factors that influence the process includes "[t]he felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men."(4) Judges are not the only property rule makers who are influenced by such considerations when they create, interpret, or apply property rules. Legislators and regulators are influenced by the same factors when they create or apply property rules within their own domains.

Legislatures, courts, and administrative agencies must be guided by principles in the process of creating, interpreting, and applying rules to resolve property disputes. Without guiding principles, the resolutions could appear to be arbitrary--too dependent upon the prejudices which all rule makers share with other people--and the public could lose faith in the legal system as a peaceful forum for dispute resolution. One such guiding principle might be to limit an owner's control over her resources whenever necessary to preserve social order. Another such guiding principle might be to maximize an owner's control over her resources in order to broaden the range of utility-generating choices available to her in the market.(5) When balancing such widely variable and sometimes contradictory principles, property rule makers must be open about the process and try to harmonize the competing principles, to the extent those principles can be reconciled with each other, in order to maximize the legitimacy of the resulting property rules.

This Article is about the balancing process by which legislatures, courts, and administrative agencies create, interpret, and apply property rules, with preservation of ecological integrity as one of the guiding principles in the balance. Recently, property rule makers have begun to recognize the need to protect the integrity of biotic communities upon which we depend for our sustenance as an important principle that should help guide the balancing function of property law.(6) Such rule makers have begun to rely explicitly on natural sciences, such as biology and ecology, along with social sciences, such as economics and philosophy, to inform the "intuitions of public policy, avowed or unconscious,"(7) that help shape our property rules. When the concept of ecological integrity is understood correctly to include human cultural, economic, and political needs within the ecosystems humans inhabit, preserving ecological integrity should be one of the most important guiding principles in the balancing function of property law.

I will review the importance of having principles to guide the balancing process in the remainder of Part I of this Article. I also will review the current debate about private property rights in American law and politics, because this debate illustrates the dangers of ignoring the guiding principles and relying too much on felt necessities of the time, prevalent moral and political theories, intuitions of public policy, and commonly shared prejudices when creating, interpreting, or applying property rules. The private property rights debate also illustrates one of the dangers of not including human needs in considerations of ecological integrity. In Part II of this Article, I will raise three basic questions: 1) who balances competing principles in order to craft a property rule, 2) whose interests does a rule maker consider in the balancing process, and 3) how do various rule makers strike such balances. In Part III of this Article, I will review the eight guiding principles that a property rule maker typically must consider in the balancing process. Finally, I will conclude in Part IV that, by viewing the balancing function from an ecological--or Green perspective--rule makers can gain new insights into the scope of the community that might be affected by an owner's use of his or her property and thereby better appreciate the need to protect the ecological integrity of such a community with property rules.(8) Recognition and appreciation of the importance of ecological integrity should address where humans fit in biological communities and emphasize the harmonization of human interests with the interests of other components of the biotic communities--the same communities upon which humans and other living things depend for their sustenance.

A. The Need for Principles to Guide the Balancing Function

Property rules will more closely reflect prevailing community standards concerning reasonableness of expectations for resource use (and thereby better maintain the confidence of citizens in the legal system) if our property rule making institutions focus more explicitly on the principles that guide the balancing process by which such institutions create, interpret, or apply property rules. When the guiding principles are not clearly the focus of the rule making process, there is too much risk that a rule maker might shape a rule more according to "the prejudices which judges [and other rule makers] share with their fellow-men"(9) than according to community standards of reasonableness. Fears of the influence of such prejudices undermine public confidence in the legal system. Rule makers also must approach the balancing process as a process of harmonizing guiding principles, instead of a process of making all-or-nothing choices between competing interests on the basis of which interest carries the greatest weight.(10)

The first step toward learning to harmonize competing interests is to identify the principles that guide the balancing function of property law. One of those guiding principles emphasizes individual control of resources to protect various freedoms, while other guiding principles emphasize community interests with deep roots in traditional property law. The individual interests include protection of a resource owner's political and economic freedoms, plus protection of those same freedoms for other individuals who may be affected by the owner's use of the resource. The community interests reflected in the guiding principles include protection of a community's need to: 1) preserve social order by fostering public reliance upon the legal system as a means of peacefully resolving disputes, 2) have reliable property rules that encourage adding value to resources through investment of labor and capital, but that also are flexible enough to adapt to new situations or new information, 3) prevent aggressors from confiscating the resources of other members of the community by force, and otherwise protect public health, safety, morals, and welfare, 4) prevent one resource owner from using her resources in a manner that unreasonably interferes with other community members' abilities to use and enjoy their own resources and community-owned resources, 5) prevent a resource owner from using her resources in a manner that unreasonably infringes upon enjoyment of fundamental civil rights by other members of the community, and 6) preserve the integrity of the ecosystem from which the community draws its common resources, such as air and water.(11)

B. The Balancing Function and the Property Rights Debate

In a world of finite resources, the number and complexity of resource-use conflicts grow as population density grows. Increases in population cause demand for consumption of those finite resources to grow correspondingly. "[W]hat is then understood to be convenient" becomes more difficult to determine.(12) Scarcity of resources also seems to sharpen disagreement about "the prevalent moral and political theories" that should be considered by property rule makers.(13) In addition, as we learn to gather and manage more and more information about the consequences of resource consumption, the "felt necessities of the time" and "intuitions of public policy, avowed or unconscious," appear to take on greater importance and even different meanings.(14) The balancing exercise becomes increasingly difficult for all property rule makers as the frequency and intensity of property conflicts grow.

At various periods in our nation's history, major social changes have pushed our property rule making institutions to the limits of their capacity to harmonize principles that guide the rule making process. Rule making institutions have had difficulty adapting property rules fast enough to continue to serve society's new needs at times of rapid social change.(15) When rule making institutions try to introduce new guiding principles to the balancing process, those institutions become especially vulnerable to criticism that new rules, created in accordance with the new principles, give too much weight to some considerations and not enough weight to others. The predictable backlash against such new property rules often takes the form of another rule making institution which reconsiders the same factors but strikes a different balance with a countervailing property rule.

Our shift from a primarily agrarian society for most of the nineteenth century to more of an urban society as we entered the twentieth century prompted our legislative rule making institutions to create zoning laws and subdivision controls to deal with urban crowding. In a political climate shaped by concerns that such centralized control of land use decisions went too far in the direction of "what [was] then understood to be convenient," without enough deference to the "past" emphasis of property law on individual control of privately owned land. Justice Holmes himself articulated a concern that land use regulation sometimes may go "too far" and result in a taking of private property for public use without due compensation.(16) With the majority opinion in Pennsylvania Coal Co. v. Mahon, Justice Holmes gave the doctrine of regulatory takings its beginning as a judicially created constraint on legislated land use controls in the jurisprudence of the United States Supreme Court.

The current property rights debate in American law and politics reflects another backlash against a different subset of property rules: environmental laws. For much of the past three decades, environmental laws have "pretty nearly correspond[ed], so far as it [has] go[ne], with what [has been] understood to be convenient"(17) for preservation of clean air, clean water, uncontaminated soil, public wilderness areas, and biodiversity. However, some judges, legislators, regulators, and property scholars, as well as many business leaders and other private citizens, think the environmental laws of the past three decades give too much weight to guiding principles that protect community interests at the expense of individual resource owners.(18) They object that many environmental laws do not make sense, because the rules do not give enough weight to the needs and comforts of humans,(19) The backlash against environmental laws that do not make sense to such rule makers and scholars, and against the courts which do not always view such environmental laws as being constrained by the doctrine of regulatory takings, has included the introduction of such legislation as the Private Property Protection Act of 1995.(20) The backlash also has included aggressive judicial activism by politically conservative jurists,(21) some degree of resistance to environmental concerns within administrative agencies,(22) and even, allegedly, violence against environmentalists and environmental regulators.(23)

The backlash against environmental law, which has taken the name of the "private property rights movement," took shape and found its voice when its leaders sought to put greater emphasis on a Lockean natural law foundation for the concept of property in "the prevalent moral and political theories" of the past two decades.(24) Rather than viewing property rights as creations of our legal system, neo-Lockean property scholars assert that property rights exist naturally, without law; indeed, neo-Lockeans assert that the legal system was developed to protect pre-existing property rights.(25) When rule makers balance all of the guiding principles for resolving property disputes, subject to the considerations listed by Justice Holmes, the neo-Lockeans want "the prevalent moral and political theories" in the mix to reflect neo-conservative views of the relative importance of individual autonomy and the relative unimportance of community interests.(26)

On the other side of the property rights debate, many who would defend the importance of community interests, as reflected in environmental laws, want "the prevalent moral and political theories" to reflect more of a positivist, Benthamite foundation for the concept of property.(27) Jeremy Bentham asserted that society defines property by reference to community standards. If an individual's community generally will support and enforce her reasonable expectations about what she can do with the resources in her possession, then her rights to do those things are part of her property in that resource.(28) If the community views the individual's expectations as being unreasonable and unsupportable, then she may not claim the right to do those things as part of her property. Law is the mechanism the community uses to protect reasonable expectations as "property," or to discourage unreasonable expectations as "not property." Community standards that distinguish between reasonable and unreasonable expectations become property roles.(29)

The property rights debate, to a great degree, reflects differences about whether modern social discourse concerning property rules, including environmental laws, should begin from a normative definition of property (what should property be?), as favored by neo-Lockeans, or a positive definition of property (what is property?), as favored by neo-Benthamites.(30) Without principles to guide the process by which property rules are created, interpreted, and applied, a rule maker's neo-Lockean or neo-Benthamite philosophy could unduly influence the outcome of the rule making process through consideration of the rule maker's personal perspectives on the felt necessities of the time, moral and political theories, intuitions of public policy, and commonly shared prejudices; the outcome could be a property rule that does not foster public respect for the legal system.(31) Both approaches to the concept of property can be made consistent with the use of principles to guide the rule making process.(32) Further consideration of the property rights debate between natural law proponents and positivists is largely outside the scope of this Article. Instead, with full disclosure that my approach to defining property is positivist, I will proceed with my thesis about the importance of protecting ecological integrity within the balancing function of property law.

II. WHO IDENTIFIES THE INDIVIDUAL AND COMMUNITY INTERESTS TO BE HARMONIZED IN THE BALANCE AND HOW ARE THOSE INTERESTS BALANCED?

A positivist approach to property law ought to provoke at least three questions in very short order. Who is "the community" for purposes of choosing between reasonable and unreasonable expectations? How does a community identify the individual and community interests that must be balanced in order to judge the reasonableness of any given expectation? By what process does the community balance those interests to choose what is reasonable and what is not? To address these three questions, I will review briefly the sources of rules that govern what we can do with our resources as we near the close of the twentieth century--contractual agreements, common law doctrines, statutes, administrative regulations, and constitutional provisions.

A. Contractual Property Rules

Contractual agreements governing the use of possessions include leases, easements, restrictive covenants, and similar voluntary agreements. The desirability of relying upon voluntary agreements to resolve conflicting expectations has been the subject of much examination by some of the most well-respected property scholars of our time.(33) In theory, voluntary agreements allow the owner of a resource and those who might be affected by the owner's use of that resource to define reasonableness of expectations through negotiation, on the basis of whatever competing interests are important to the negotiating parties.(34) The outcome of the negotiations should be a resolution with which each of the parties believes he or she is at least no worse off, or the parties would not resolve their conflicting expectations with a voluntary agreement.(35) A contract-based property rule thus should reflect expectations that all of the negotiating parties agree are reasonable.

One major disadvantage of using contract negotiations to define reasonableness of expectations is that all who may be affected by use of the resource must be a party to the negotiations or else the negotiated rule may shift costs of the transaction (negative externalities in economic terms) to those who are not party to the contract.(36) If a potentially affected party is left out of the negotiations, externalities tend to be shifted to that missing party which may outweigh the aggregate benefits to the contracting parties. The presence of negative externalities of unknown measure might create more disutility than the total utility the transaction creates for the contracting parties, thereby leaving society's aggregate utility diminished by the transaction,(37) In non-economic terms, a resolution that simply shifts a loss to another innocent bystander is not socially desirable.

If negotiations are expanded to include more parties who might be affected by the proposed resource use, the dynamics of the negotiating process become much more complicated, making it harder to reach a result where no party thinks he or she is worse off as a result of negotiated compromises. When a proposed resource use might affect members of the general public, negotiated property rules are possible only when someone represents the common interests of the public. When a proposed resource use might affect members of future generations, negotiated property rules are possible only when someone represents the interests of those future generations, but the guardian ad litem for future generations somehow must make assumptions about what those unborn children might prefer to protect in the contract negotiations.(38)

Another point to keep in mind is that negotiations must take place within the context of a default rule that will apply if no compromise is achieved by negotiation. Such a default rule, which will have great influence on the relative bargaining strengths of the parties, must come from a source external to the bargaining process, such as the common law, statutes, or regulations.(39) Thus, the parties' negotiations will be influenced to some degree by someone else's ideas of reasonableness. Whoever helped create and shape the default rule will indirectly impact the negotiations.

The answers to my three questions concerning how property rules are created by contractual agreements may be summarized as follows: the party who proposes to use a resource and parties who may be affected by the proposed resource use may negotiate with each other to protect those interests which are of greatest importance to them, possibly at the expense of someone who is not a party to the contract. The community, for purposes of choosing between reasonable and unreasonable expectations, includes all who are party to the contract, but excludes those who are not, except to the extent that this method depends upon externally generated default rules that will take effect if negotiations fail. The individual and community interests the parties balance in determining reasonableness include whatever interests the parties raise in the negotiations, plus whatever interests are reflected in the default rules. Default rules introduce ideas of reasonableness held by those who helped create and shape the default rules, although those ideas of reasonableness found in the default rules were not formed by reference to the instant dispute. This method of rule making by contract may work well to resolve conflicts in expectations among a limited number of identifiable individuals. However, this method loses its efficiency and its effectiveness when conflicting expectations involve large numbers of potentially affected individuals, or individuals who are difficult to identify and include in the bargaining process, such as members of future generations.

B. Common Law Property Rules

Courts create common law property rules when they resolve disputes between resource owners and those who will be affected by resource use. Over the course of time, a court's resolution of two or more similar disputes can be synthesized to deduce a common law doctrine. An example of a common law property rule is the traditional version of the rule against perpetuities.(40)

The creation of property rules through the common law has some theoretical advantages. Chief among these theoretical advantages is that parties seeking standing to litigate a property dispute must have a real problem with real concerns. In these circumstances advocates should be motivated to fully inform the court about their respective clients' concerns and expectations.(41) With real parties having more at stake than the outcome of an amusing intellectual exercise, the fully informed court in turn should take great care to balance the interests of the parties as fairly as possible. The community whose judgments about reasonableness of expectations will help define property in a given case thus includes at least all parties with legally recognized standing and members of the court(s) that will hear the case.

The standing requirement also highlights one of the drawbacks of rule making through litigation. The identities of a resource owner and potentially affected neighbors involved in a property dispute are purely a matter of serendipity. The limited number of parties with standing to participate in litigation may not accurately reflect prevailing community standards of reasonableness. Furthermore, litigation is neither a simple nor inexpensive process. The transaction costs of litigation may present another barrier for many parties who otherwise might have standing to bring their own interests to the attention of judges in the balancing process. When an owner's proposed use of a resource may affect a large number of neighbors, but not affect any single neighbor enough to make the expense of litigation worthwhile, the logistical problems and expenses of coordinating a collective response by the neighbors may discourage the neighbors from participating in the litigation and thereby deprive the court of an opportunity to fully appreciate and consider those parties' interests.(42) As in the case of potentially affected parties who are excluded from contract negotiations, potentially affected parties whose circumstances do not satisfy legal standing requirements, or for whom transaction costs are a barrier to participation in litigation, will not be permitted to make judges aware of competing individual and community interests.(43)

Another theoretical advantage of common law rule making results from common law courts' adherence to the doctrine of stare decisis. This doctrine promotes public confidence in the legal system and allows courts to shape common law doctrines through a series of similar cases decided over a period of time. According to the doctrine, a dispute involving circumstances similar to previously decided cases should prompt a court to use precedential authority in crafting a resolution of the instant dispute. But note how the doctrine of stare decisis expands the "community" whose judgments about reasonableness of expectations will help define property in a given case to include all of the litigants and jurists in the cases selected as precedent by the courts.

There are two anachronisms involved in this delineation of the relevant community. First, the litigants and jurists in precedential cases represented the expectations of past generations of people who, in all likelihood, no longer will be affected by the proposed resource use that gives rise to the instant dispute. This is the same as saying that they would not have legal standing to participate as parties in the instant case.(44) Does it make sense to give "standing" to litigants from an old case, but deny standing to some who might be affected by the rule adopted to resolve the instant case?(45) Second, the function of selecting which cases have value as precedential authority and which cases can be distinguished on factual or other grounds (or selecting persuasive authority and relevant public policies, in rare cases of first impression) introduces another element of subjectivity to the process. A court, influenced by "the prejudices which judges share with their fellow-men,"(46) has an opportunity to be somewhat selective concerning which historic views about reasonableness it includes within the community's current views of reasonableness in common law rule making.(47) Courts warn us that overturning a "rule of property" is serious business to be undertaken by a court only for the "most cogent reasons," yet even this cogent-reasons standard is inherently subjective.(48)

The relative lack of accountability of judges to members of their communities increases the risk that common law property rules might not reflect prevailing community standards of reasonable expectations. Federal judges are appointed for their lifetimes. State judges, who shape property laws a great deal more than most Federal judges do, are more often than not elected. But judicial elections usually are non-partisan, which prevents judicial candidates from campaigning on the basis of how they would decide specific property issues that may come before them in litigation and thus prevents them from having a mandate from their communities on property issues. Elected judges also normally run for reelection at relatively long intervals, thereby making it difficult to provide meaningful community feedback on questions of whether a judge's decisions in property disputes accurately reflect community standards of reasonableness for the expectations of property owners. In the end, relative insulation from accountability allows judges an opportunity to substitute their own judgments about reasonableness for possibly contradictory community standards.(49)

To summarize, the process of making property rules through the common law includes the community (whose judgments about reasonableness of expectations will help define property in a given case), which is limited to include only those who have legally recognizable standing to participate in the instant case. The process also includes those who had standing in old cases selected by the court as precedent but who in all likelihood will not be affected by the proposed resource use in the instant case. And third, the jurists who select the precedents the court will use to resolve the instant case. The nature of the litigation process thus limits the scope of the relevant community, which in turn limits the range of the perspectives on reasonableness that will be considered when the court balances individual and community interests. The perspectives represented in the litigation process may not coincide with the larger community's views on the reasonableness of a resource owner's expectations.

C. Statutory Property Rules

Local zoning ordinances, statewide conveyancing requirements, and federal pollution control laws are examples of statutory property rules. At each level of government a statutory property rule theoretically is adopted only after reflection and deliberation in the legislative process, and then only when a majority of elected representatives (looking out for the best interests of the majority of their constituents) support adoption of the rule. In a representative democracy, the legislative process should provide opportunities for anyone who might be affected by a proposed use of a resource to voice his or her opinion to his or her elected representative concerning the reasonableness of the resource owner's expectations.(50) Thus, the legislative process, in theory, allows a resource owner to define and advocate her individual interests and allows other interested parties to define and advocate their own interests and community interests, through their respective representatives. With competing interests identified by interested parties, legislators should balance those interests openly and explicitly when debating the creation or amendment of a statutory property rule.

Legislators are elected relatively frequently, as compared to judges, so legislators should be more accountable to their constituents for how well they promote their constituents' interests in the balancing process. If they do not effectively communicate their constituents' interests in legislative debates, the legislators can be replaced in the next election. Unlike judges, legislators running for election or reelection are expected to reveal their views on "[t]he felt necessities of the time" and "intuitions of public policy."(51) They even may be expected to confess (cynics might say exploit) "the prejudices which [policy makers] share with their fellowmen."(52) Constituents may vote for a representative who best reflects their own views on these factors, thereby indirectly shaping legislation until the next election. The legislative process thus should provide a reasonable approximation of a community's standards of reasonableness in property rules, if everything works in accordance with theory.

Everything in the legislative process does not always work in accordance with theory though. Efforts to explain the disjunction between political theory and practice have consumed many volumes of academic and popular writing. One currently popular academic effort to explain this disjunction is public choice theory,(53) Public choice scholars attempt to explain the behavior of voters and legislators as rational actors who seek to maximize their own utility with all of the choices they make in the legislative process.(54) Public choice theory has two main branches. The interest group branch of public choice theory seeks to explain why special interest groups often have relatively great political influence, while the social choice branch of public choice theory seeks to explain political outcomes when numerous individual voters with different relative preferences all participate actively in the political process.(55) The interest group branch of public choice theory appears to provide a fairly accurate portrayal of most environmental politics.

The influence of special interest groups in the property rule making process can be illustrated with the story of the adoption of the Mississippi Agriculture and Forestry Activity Act.(56) The Act, which requires payment of compensation to landowners when land use regulation reduces the fair market value of land in many circumstances that courts might not call a regulatory taking, is one of many versions of "private property rights protections" recently enacted by states.(57) The Mississippi statute is somewhat unique in that it extends its "protection" only to agricultural and forestry uses of land.(58) The bill was introduced in the Mississippi Senate at the request of leaders of the Mississippi Farm Bureau Federation.(59) After the bill was passed by the Mississippi Senate, lobbyists from environmental groups met with members of the Mississippi House of Representatives, explained how the proposed legislation could indirectly damage air and water quality, counted votes, and predicted that the bill would be defeated in the House. Shortly before the House vote on the bill, however, the Farm Bureau Federation hosted an evening reception for legislators, after which numerous representatives switched from opposing to supporting the bill. A short time later, after the House passed the bill, several representatives defended their change of position (strictly off the record and not for attribution) by describing not-so-subtle threats by Farm Bureau leaders at the reception. Those leaders promised to vigorously fight reelection of anyone who opposed the private property rights legislation. Of course, Farm Bureau members had as much right to oppose reelection of their political adversaries as Sierra Club members had to do the same thing, so several legislators caught between opposing interest groups did some fast arithmetic and decided that Farm Bureau members were better organized, more likely to act on their threat, and therefore posed a greater threat to reelection.(60) The Mississippi legislators' change of position to protect their own chances of reelection instead of taking a principled, well-reasoned stand on the proposed legislation illustrates how the interest group branch of public choice theory describes legislative behavior? If the public choice description is as accurate in other cases, then balancing the reelection risks of offending one special interest group versus the risks of offending an opposing interest group may take more of a legislator's time and effort than harmonizing perspectives of constituents concerning the reasonableness of expectations for land use or resource consumption.

Special interest groups can play influential roles in campaigns related to public referenda as well, but it is interesting to note that in the two instances where voters were asked to pass judgment on private property rights legislation in direct referenda, the private property rights legislation was defeated both times. A referendum in Arizona in 1994 repealed a private property rights protection act that had been adopted by the Arizona legislature in 1992.(62) Another referendum was held in the State of Washington in 1995, in which Washington's voters rejected an extreme version of private property rights legislation.(63) With public referenda, the variable of reelection of legislators is largely removed from the political calculus and grassroots participation in the political process by citizens is more common, which might change the dynamics of special interest group influence on the outcome of political action.(64) The sampling is too small, though, and too many other variables cloud the picture to infer a definitive conclusion from the Arizona and Washington referenda.(65)

Property rule making by legislation may be summarized as follows. The legislative process of balancing interests to create property rules appears to be open to all members of the political community who care enough about some interest to get involved in the process. Without the standing requirements of litigation and with a built-in structure that makes grassroots participation in politics easier than participation in multi-party contract negotiations, the legislative process has the potential to draw upon a much broader spectrum of the community for purposes of determining whose views on the reasonableness of expectations will be balanced in the rule making process. The theoretical advantages of the legislative approach to property rules break down, though, when citizens do not participate. Without widespread grassroots participation in public policy-making, special interest groups have an opportunity to exert disproportionate influence on the balancing function by appealing to legislators' self-interest. When special interest groups displace widespread citizen participation as the primary influence on legislators, the scope of perspectives on reasonableness of expectations is narrowed considerably to the point where property rules produced by the legislative process may no longer accurately represent community standards of reasonableness.

D. Regulatory Property Rules

An example of a property rule in the form of an administrative regulation is the rule governing lender liability for removal and remediation of petroleum underground storage tanks located on land in which the lender holds a security interest.(66) As would have been the case with the administrative rule making process in every jurisdiction in the United States, the Environmental Protection Agency provided opportunities for input from interested parties to help identify competing individual and community interests before the lender liability rule was put into effect.(67) This input usually comes through public hearings in the early stages of rule formulation, and also includes written public comments on proposed versions of the rule before administrators finalize the rule.

Persons with knowledge of and access to the rule making process may advocate individual or community interests that might be affected by a proposed rule. Administrators then may consider the relative weights to be assigned to the competing interests when balancing those interests to produce a final rule. One major theoretical advantage of rule making by administrative agencies is that at least some of the agency's employees are supposed to have a greater level of expertise in the area of activity regulated by the agency than most members of the general public have.(68) This greater level of expertise should enable the agency to do a better job of harmonizing the competing considerations when formulating a property rule.

Administrative regulations often do a less satisfactory job than legislation, though, with respect to reflecting community standards of reasonableness of expectations in property rules. Regulators have frequent contact with those who they regulate, frequently leading to development of relationships that may influence the regulators' judgment about the relative importance of individual and community interests.(69) This tendency to identify with the regulated activity and regulated actors is known as the "capture phenomenon."(70) The "capture" may be enhanced by the special expertise that administrators share with those who they regulate, to the extent that it gives the administrators another reason to identify more closely with the regulated parties than with members of the general public. In addition, regulators typically are political appointees or career civil servants. In such capacities, regulators are not directly accountable to voting members of the community that will be affected by property rules. If a regulator consistently strikes the balance between individual and community interests in a place that does not reflect prevailing community views of reasonable expectations, members of the community have only an indirect means, at best, to correct the imbalance.

To go along with their rule making function, administrative agencies also typically perform an adjudication function when regulators apply property rules to possible violations of the regulations they are authorized to enforce. The enforcement function of regulators introduces an opportunity to exercise a certain degree of prosecutorial discretion. The extent to which regulated actors and activities have captured regulators' sympathies could have great influence on the exercise of such prosecutorial discretion in enforcement situations. Administrative law judges often adjudicate disputes concerning possible violations of their agency's regulations. The adjudication function of administrative law shares many advantages and disadvantages with the common law litigation process. One major difference is that administrative law judges are supposed to have greater expertise in their subject area than "generalist" judges. Another major difference is that administrative law judges are civil servants, not elected representatives of their communities, so they are largely insulated from public reproach if their decisions do not reflect prevailing views on the reasonableness of expectations for resource consumption. As is the case with administrative rule making, these differences may serve to lessen the likelihood that application of an agency's rules to a given case will reflect prevailing community standards of reasonable expectations.

To summarize, administrative agencies serve the dual functions of creating some property rules, plus enforcing their own rules and legislated property rules. The special expertise of administrators should help them better understand and evaluate information relating to reasonable expectations for resource use. However, specialization in regulation also means that regulators routinely come in contact with the same familiar regulated actors, with whom the regulators share their special expertise in the regulated activity and with whom the regulators may identify more closely than members of the general public. This regular contact, shared expertise, and shared identification may result in capture of the regulators' sympathies by the regulated actors and activities. In effect, the captured sympathies of regulators are similar to the re-election ambitions of legislators--they both can lead to special interest groups exerting disproportionate influence over the balancing process by which property rules are created and enforced. Unlike the legislative process, the administrative process is not open to widespread grassroots participation that could counteract special interest group influence.

E. Constitutional Property Rules

The Constitution of the United States includes two property rules in the Fifth and Fourteenth Amendments--no person may be deprived of property without due process,(71) and no level of government may take a person's private property for public use without due compensation.(72) State constitutions include versions of the same two rules; some state constitutions include additional property rules.(73) Explicit adoption of a new constitutional property rule is rare at any level of government. However, our system of government gives courts the task of interpreting what a constitutional property rule means as applied to any given situation and courts undertake that task frequently. The process of interpreting what such a rule means as applied to any given situation is very similar to the process of creating or amending common law property rules. Thus, interpretation of constitutional property rules is subject to many of the stone risks as adoption of common law property rules, for the same reasons.(74) Standing barriers, transaction cost barriers, rules of decision-making, and relatively strong insulation from political accountability hamper the abilities of courts to reflect prevailing community standards of reasonable expectations when interpreting constitutional property rules.

One might argue that the whole point of constitutional property rules is to avoid resort to prevailing community standards of reasonable expectations. Constitutional property rules serve a special purpose in property law--to protect property owners from tyranny at the hands of a majority of voting members of the community. Without constitutional limits on property rule making processes, the voting majority of a community could seize and redistribute the property of individuals or small groups in the community.(75) One of the most basic principles of our social contract is reflected in our constitutional property rules: each of us gives up the right to side with a voting majority to tyrannize other property owners, in return for the security of knowing that we will not be tyrannized by the majority should we ever find ourselves in a voting minority.(76) Relatively strong insulation from political accountability helps judges protect property owners from tyranny by the majority. However, that same insulation from accountability raises fears about the tyranny of judicial activism when judges rely too much on "the prejudices which [they] share with their fellow-men."(77)

Judges and legal scholars do not all agree about how constitutional property rules should be interpreted when they apply those rules to resolve a conflict between expectations of a resource owner and expectations of those who will be affected by use or non-use of the owner's resource. Some prefer a fixed conception of property that would define property today the way it was defined when constitutional property rules were adopted.(78) In effect, those who advocate this "original understanding'' of property would have us maintain the balance between individual autonomy and community interests as the authors of the Bill of Rights would have struck that balance in 1791; they would have us define the reasonableness of expectations according to the societal standards of that time. The "original understanding" approach to constitutional property rules, if taken literally and strictly followed, appears to leave little or no room to consider new community interests or new knowledge about the individual and community interests upon which the original balance was based. Adding to my doubts about the wisdom of using the original understanding approach in property cases is the strong possibility that there was no clear consensus among the authors of the Bill of Rights about what the word "property" meant.(79)

Other property scholars, with whom I agree on at least this point, prefer to define property as a flexible, dynamic concept,(80) Our society has adapted property law over many centuries to meet our changing demands by recognizing that the balances to be struck between competing individual and community interests may change, as the relative weights of those interests change over time and as we become aware of new information,(81) Recognition of the dynamic nature of property should prompt us to examine the process of change; the balancing function of property law is the mechanism by which the institution of property law adapts itself to the changing needs of the society that it serves.

Most constitutional rule making in the area of property law takes place within the context of courts interpreting the meaning of constitutional limits on the exercise of eminent domain power, as applied to given situations through takings litigation. Besides including the same barriers that always make it difficult to consider the full range of community views on reasonableness of a resource owner's expectations in litigation, constitutional litigation introduces the opportunity for jurists to choose a mode of constitutional interpretation. The choice of the mode of interpretation in turn provides another opportunity for "the prejudices which [judges] share with their fellow-men"(82) to exert disproportionate influence over the balancing process by which constitutional rules should be shaped and redefined.

III. GUIDING PRINCIPLES TO BE HARMONIZED IN THE BALANCING PROCESS

Debate concerning a property rule may take place before an appellate court, a legislature, an administrative agency, or even a constitutional convention. Regardless of the forum, most individual and community interests raised by parties to such a debate will be reflected in the principles that guide the balancing function of property law. In this portion of the Article, I will identify and describe those guiding principles. Individual interests to be considered in the balancing function typically include protection of political and economic freedoms. Community interests to be considered in the balancing function typically include: 1) stability of the legal system, 2) reliability of a uniform system of rules upon which investment of capital and labor can be based, 3) protection of public health, safety, morals, and welfare, 4) avoidance of unreasonable interference with other peoples' use and enjoyment of their property, 5) avoidance of unreasonable interference with other peoples' enjoyment of legally protected rights, 6) flexibility of property rules to adapt to new challenges and changing conditions, and with increasing frequency, 7) protection of the integrity of the biological communities within which people enjoy all of their other freedoms through ownership of private property.

A. The Stability Principle

If any one of the guiding principles takes priority over all others, it is the need to maintain social order. Rules that undermine public confidence in the legal system may encourage people to use extra-legal methods to resolve their property disputes. Violent, self-help remedies are more consistent with anarchy than with ordered liberty. On the other hand, rules that promote public confidence in the legal system encourage people to continue using peaceful, legal methods to resolve their property disputes. Our desire to maintain social order by encouraging public confidence in the fairness and equality of our legal system for dispute resolution motivates our adherence to the doctrine of stare decisis. I will refer to the guiding principle that produces rules maintaining social order as "the stability principle" in the discussion that follows.

Perhaps the most familiar example of the stability principle to students and teachers of property law is found in Johnson v. M'Intosh.(83) In Johnson, different people claimed title to the same land, worth approximately $2,000.00 in 1823. William M'Intosh founded his claim upon a patent from the United States that dated to July 20, 1818. The United States claimed title to the land by virtue of a 1784 conveyance from the State of Virginia, which in turn claimed title as the successor to the Colony of Virginia when Virginia declared its independence from England in 1776.(84) The Colony of Virginia had claimed title to the land as part of a grant from James I, in whose name the land had been "discovered and conquered."(85) On the other side of the dispute, Joshua Johnson and his nephew, Thomas J. Graham, claimed title by inheritance from Joshua's father, Thomas Johnson, Jr., who had been one of a group of investors who foresaw the westward expansion of the American frontier and positioned themselves to profit from that expansion.(86) An agent of the investors met with the leaders of the American Indian tribes who controlled a large area of land in what is now the State of Illinois. The meetings culminated in two agreements, dated in 1773 and 1775, by which the Indians exchanged control over some of their land for large cash payments from the investors. The parties observed the ceremonial requirements of both cultures with respect to transfer of control over the land, signing and sealing written documents to satisfy the investors.(87)

When M'Intosh entered the land he had purchased from the government, Joshua Johnson and Thomas J. Graham sought a writ of ejectment against M'Intosh from the U.S. District Court of Illinois.(88) The District Court found in favor of M'Intosh, so Johnson and Graham appealed to the United States Supreme Court.(89) In choosing between M'Intosh's claim and Johnson's claim, the United States Supreme Court had to harmonize several guiding principles. The Court probably recognized that allowing parties to exchange property pursuant to freely negotiated contracts was an important component of protecting the parties' economic and political liberty, at least with respect to the investors.(90) I will refer to this as "the individual liberty principle" and discuss it in greater detail below. However the Court also recognized that any market for interests in the subject land required a reliable system for keeping track: of ownership claims.(91) This need for a stable land title system illustrates what I will call "the reliability principle," also to be discussed in greater detail below. Finally, the Court was well aware of what would happen to social order and the fledgling nation's land title system if it validated Johnson's claim to title acquired directly from the Illinois and Piankeshaw nations.(92) Problems with states making their own agreements with American Indian tribes had been a major flaw of the Articles of Confederation, leading to adoption of the provision in the United States Constitution for the Federal government's exclusive treaty power.(93) What greater mischief could the Court do if it effectively recognized individual rights to make agreements with American Indian tribes? Maintenance of social order required the Court to honor M'Intosh's claim over Johnson's claim, despite any concerns about protecting the freedom of the investors to contract for transfer of title to property. The stability principle, supported by the reliability principle, trumped the individual liberty principle in the balancing process by which the Court resolved the conflicting claims. M'Intosh won?(94)

When a question arises about whether some new set of expectations should be recognized as property, property rule makers must balance the stability principle with what I call "the flexibility principle" as they search for an answer to the basic question.(95) The news media regularly includes stories illustrating how scientific and technological innovations present new challenges to the institution of property law. Advances in reproductive technology, for example, now make it possible to store human eggs, sperm, and even embryos outside of the human body; if a custody dispute arises between the humans from whom the gametes were extracted, who (if anyone) should be given the right to possess, use, possibly destroy, or transfer the stored gametes or embryos?(96) Who will control use of genetic material from a cloned animal after multiple clones of that animal are in existence?(97) How will we deal with new electronic ways of packaging information, made possible only by technological innovations?(98) Should a girl, who was conceived by in vitro fertilization with the sperm of her mother's deceased husband, be recognized as the sperm donor's daughter, and can she be eligible for social security benefits as his survivor?(99) Each of these issues, to a greater or lesser degree, could have far reaching affects on our social order, depending upon how we answer these questions. Preserving social order must be one of the principles that guides the rule making process in these cases, along with the flexibility principle. Other principles sometimes may conflict with the stability principle, but the flexibility principle presents the greatest challenge to property rule makers as they seek to protect the stability principle in the balancing function of property law.

B. The Reliability Principle

Very closely related to the stability principle, but serving a different purpose, is the reliability principle. The New Mexico Supreme court explained the distinction between the two principles as follows:

The especial importance of stare decisis in cases involving a rule of

property is twofold. First, and more generally, the anti-majoritarian

nature of the judicial system makes adherence to precedent essential to

promote public confidence in the law and its administration .... Second,

and more specific to rules affecting property or commercial transactions,

adherence to precedent is necessary to the stability of land titles and

commercial transactions entered into in reliance on the settled nature of

the law.(100)

Apart from promoting stability of the social order, the chief purpose of the reliability principle is to encourage the investment of labor and capital in resources. Any investment involves risk of loss. One function of property law is to minimize that risk so that owners will add value to their resources.

The real estate finance system in the United States illustrates the importance of the reliability principle in property law. Buying land or adding improvements to land can be a very expensive proposition. In an average transaction, a landowner does not have enough cash available to pay for the land or the improvements herself. Instead, she turns to a lender who provides the cash in return for the landowner's promise to repay the loan with interest. To decrease the risk that the loan will not be repaid, the lender asks for some type of security interest in the land. The mechanism by which state law supplies that security interest may vary, depending upon whether the state property law follows a "lien theory" or a "title theory."(101) In both lien theory and title theory states, though, the basic idea is the same. The security interest allows the lender to force a sale of the land and improvements, if necessary, to raise money for repayment of the loan.

When a lender is asked to make a loan secured by real property, the lender not only makes a judgment about the loan applicant's creditworthiness, the lender also evaluates the risks that it will be taking if it makes the loan and the borrower stops making loan payments. In such a default scenario, will the lender be able to force a sale of the property to raise funds for repaying the loan? How long will the forced-sale process take? How can the lender protect the value of the property dining the time leading up to the sale? Will any other creditor of the borrower be able to claim any of the sale proceeds before the loan is fully repaid? The lender needs reliable answers to each of these questions before it can make a rational decision about the loan application. Those answers come from property rules covering, respectively: the process of foreclosure, the period of time during which the borrower may redeem her equity in the property by repaying the loan in full, the conditions under which the lender might have a receiver appointed to preserve the value of the property prior to the foreclosure sale, and the recording statutes as they apply to establish priority of claims against the title to the property.

Because the dollar amount of most real estate loans is so large in relation to the borrower's income, the borrower may need fifteen to thirty years to repay the loan with interest. The lender needs to know that the answers to the key questions will not change appreciably during that repayment period. If the answers to the key questions are not clear enough to suit the lender, the lender may charge a premium on the interest rate, or deeply discount the principal amount it is willing to risk on the loan. Either response to uncertainty may make it impractical for the borrower to accept the loan. The extra costs attributable to uncertain rules thus could prevent a transaction that otherwise would add value to resources and increase social welfare.(102) If the risk of not being repaid is too great, or if the answers to the key questions are too unclear, the lender might decide that it can generate greater utility for itself by investing the funds in a different transaction. Neither the lender nor the borrower can evaluate the risks of a proposed loan transaction rationally unless they have reliable answers to each of their questions.

The real estate finance market's need for long-term, reliable rules to encourage capital investment has increased in the past two decades with the rise of the secondary mortgage market. In a typical secondary market transaction, a lender pools a number of different loans which it has originated and sells that pool of loans to an investor. The investor generally seeks a long-term, stable source of cash flow from loan payments with low risk of default and a reasonable rate of return on the investment. The lender is able to make new loans with the money raised by selling the pool of old loans, plus the lender usually agrees to continue to service the loans in the pool in return for payment of fees by the investor. Minimizing risks for the investor means, among other things, standardizing the underwriting procedures and requirements used by lenders and makes reliability of the real estate finance laws even more important.

In his classic history of American law, Lawrence Friedman reaches back to a different era of real estate finance for a story about one instance of what could have happened if courts ignored the reliability principle and allowed real estate finance rules to become too uncertain for lenders' comfort.(103) In the early to mid-1850s, Wisconsin farmers invested heavily in shares of local railroad corporations, expecting those railroads to provide cheap transportation of grain to markets in the East.(104) For a short period of time, grain shipments to Milwaukee by rail actually were less expensive than other forms of transportation and the volume of grain shipped eastward through the Port of Milwaukee from farmers in Iowa, Minnesota, and Wisconsin grew dramatically as a result.(105) The cash-poor farmers promised to pay their capital contributions to the railroad corporations in the future, in the form of bonds secured by mortgages on the farmer-investors' farms. The railroads then sold the bonds and mortgages to Eastern banks and other investors, to raise the cash needed for development of the railroads. The farmers expected to make required principal and interest payments on their bonds with cash dividends from their shares of railroad stock. However, most of the railroads failed a few years after the nationwide Panic of 1857.(106) With no dividend income with which to make bond payments, many Wisconsin farmers faced foreclosure of the mortgages on their farms, leading to personal financial ruin. Using their considerable political influence, the farmers persuaded the Wisconsin legislature to pass a series of fourteen laws designed to impede the Eastern bondholders' collection of the debts due to them between 1858 and 1863.(107) The Wisconsin Supreme Court declared ten of those fourteen laws unconstitutional, relying mainly upon contract clause analysis.(108) "The court felt that the bite of foreclosure was bitter, but not half so bitter as a policy that would dry up the money market and choke off investment in the state."(109)

Fears of drying up the money market and choking off investment are the main

motivating factors behind rule making institutions' strong emphasis on the

reliability principle in real estate finance laws. The reliability principle

also plays a strong role in other title-related areas of property law,

including: 1) titles to motor vehicles and boats; 2) ownership of patents,

trademarks, and copyrights; and 3) ownership of corporate shares as

reflected in the books kept by corporate officials. Each of these systems

for keeping track of title involves carefully kept records of title, upon

which potential purchasers and creditors alike can rely. Such title systems

serve the purposes of creditors, who need an orderly system for prioritizing

claims in order to evaluate the risks of secured lending, as well as serving

the needs of prospective purchasers. The importance of reliability sometimes

even leads courts to make such statements as "when contractual rights are

at issue, `where it can reasonably be assumed that settled rules are

necessary and necessarily relied upon, stability and adherence to

precedent are generally more important than a better or even a "correct"

rule of law...'"(110)

Or, stated another way:

... decisions long acquiesced in, which constitute rules of property or

trade or upon which important rights are based, should not be disturbed,

even though a different conclusion might have been reached if the question

presented were an open one, inasmuch as uniformity and certainty in rules of

property are often more important and desirable than technical

correctness.(111)

Reliability of property rules allows market participants to be more rational in the choices they make to maximize their personal utility in the marketplace.(112) Thus, one should not be surprised to see utilitarians favoring clear, bright-line, unchanging property rules. This tendency may explain why Justice Scalia was so determined in Lucas v. South Carolina Coastal Council to categorize total-diminution-in-value cases as always being per se regulatory takings requiring compensation to the property owners.(113) The felt necessities, prevailing political theories, intuitions of public policy, and common prejudices that favor emphasis on the reliability principle for utilitarian purposes also are consistent with the goal of maximizing social welfare through emphasis on the individual liberty principle.

C. The Individual Liberty Principle

The notion that property ownership promotes and protects individual liberty is strong in our nation's history, even if the causal connection between property ownership and protection of liberty has not always been clear.(114) When feudalism was a fresher memory in our collective consciousness, many Americans saw ownership of private property as a means to sustenance and political independence, without having to depend on an overlord who would demand political allegiance in return for providing a place to live and other essentials.(115) Whether a man's property was land on which he could grow crops and raise livestock, or tools with which he could practice a trade, or capital which he could invest to generate interest or dividends, or a patent on an invention which he could market for licensing fees, property allowed him to earn an income and provide for himself and his family, thereby maintaining his political independence.(116) Property ownership also was closely linked to voting rights in many states, which strengthened the connection between property ownership and political independence.(117) At a later point in our history, Justice John M. Harlan wrote in his dissent in the Civil Rights Cases that "the... right to... inherit, purchase, lease, sell, and convey property" is one of "those fundamental rights which are the essence of civil freedom," for purposes of drawing an "essential distinction between freedom and slavery." (118)

A different connection between property ownership and liberty is more prevalent in modem use of the individual liberty principle in property law. If a resource owner is free to utilize her resource as she wishes (including the freedom to occupy or possess the resource, exclude others from occupancy or possession, use her resource as she wishes, profit from her use of the resource, modify or segment the resource as she wishes, and dispose of her interest in the resource as she wishes, all as incidents of property ownership)(119) then she may utilize that resource to produce the greatest possible happiness, or utility, for herself.(120) If all resource owners use their resources or exchange them in the free market for the greatest possible personal utility, and if we total the utility from each of those uses and exchanges, then by definition we should achieve the maximum aggregate social utility possible.(121) By allowing resource owners the freedom to exchange some or all of their property for other property that they value even more, we also allow all property eventually to reach the person who will value it more than anyone else does, thereby putting the property to its most efficient use. This microeconomic approach to the bond between property ownership and economic freedom emphasizes maximizing individual control over the incidents of property ownership in order to maximize aggregate social utility (or social welfare). The individual liberty principle thus promotes maximization of both individual and social welfare as a guiding principle in the balancing function of modern property law.(122)

The importance of the individual liberty principle is highlighted in recent Supreme Court takings jurisprudence. The conservative political views of a majority of the current Court's members are consistent with elevating the importance of the individual liberty principle when it conflicts with a government's exercise of its police power. If a local government must pay compensation to a landowner for the privilege of regulating her land use, the individual may lose some ability to use her land for sustenance, but she still will have the compensation payment to help provide for her sustenance, or to exchange for other land or goods that will give her more utility than cash. Beyond influencing the rhetoric concerning the link between property and liberty,(123) the individual liberty principle has had great impact on two evolving issues in takings jurisprudence.

First, concerns about possible erosion of individual liberty and possible tyranny of the majority have led the Court toward increasing the level of scrutiny with which it analyzes certain governmental actions affecting landowners. In Dolan v. City of Tigard,(124) the Court required that an exaction demanded by a local government in return for permission to do something otherwise forbidden on an owner's land should be roughly proportional in value to the benefits flowing from the permission granted in return.(125) This "rough proportionality test" for the nexus between the exaction and regulation in question requires more than the minimal level of scrutiny with which courts traditionally have reviewed police power regulations.(126) The Court also shifted the burden of proof in Dolan. Instead of requiring Mrs. Dolan to prove that an exaction was not roughly proportional to, or rationally connected to, the City of Tigard's permission to make an otherwise forbidden use of her land, the Court required the City to prove the existence of both the rational nexus and the rough proportionality.(127) Observers are curious to see if the Court will raise the level of scrutiny and shift the burden of proof used in other variations of takings claims.

The theoretical fungibility of cash and other forms of property for purposes of providing sustenance and as a medium of exchange in the marketplace, which underlies much of the Court's recent takings jurisprudence, is illustrated by Lucas v. South Carolina Coastal Council.(128) In Lucas, Justice Scalia repeated Sir Edward Coke's rhetorical question, "[f]or what is land but the profits thereof?."(129) The Lucas opinion is best known for its pronouncement that a total diminution in the value of property due to regulation is a per se taking, requiring compensation to the property owner, unless the regulation merely confirms a pre-existing common law limitation on the owner's control of her resource, i.e., unless the regulated activity was not part of her property in the first place.(130) The second evolving issue of takings jurisprudence is highlighted in footnote seven of the Lucas opinion, where Justice Scalia appeared to suggest that fractionalization or segmentation of an owner's parcel of land may be permitted for purposes of determining whether a total diminution in value has resulted in a regulatory taking.(131) A landowner's ability to segment her parcel of land would give her the freedom to keep only so much of the land as she values most, while transferring the excess segments to others who value those segments of land more highly than she does. In other words, a rule allowing segmentation would help maximize both the landowner's personal utility and social welfare, as long as we assume that segmentation produces no negative externalities that would detract from social welfare. It also encourages more efficient use of property. However, allowing segmentation and the related technique of conceptual severance(132) in the context of takings jurisprudence it defines a regulated parcel or property in such a fashion as to always produce a conclusion of "total diminution in value," requiring compensation for all degrees of land use regulation.(133) "Government hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law."(134) The Supreme Court appeared to have rejected conceptual severance and segmentation in the earlier case of Penn Central Transportation Co. v. City of New York(135) and appears to have confirmed its Penn Central position more recently in Concrete Pipe and Products of California, Inc. v. Construction Laborers Pension Trust for Southern California.(136) However, the Court of Federal Claims, where most takings claims against the federal government are brought, has hinted that it might allow segmentation in takings claims, based on footnote seven of Lucas.(137) The segmentation issue still looms large over current land use regulation law.

Outside the area of takings jurisprudence, we also see the influence of the individual liberty principle in many instances where statutes or common law doctrines provide only default rules to govern the relations of parties in the absence of an agreement to the contrary. The grantor of title to land, for example, will be presumed to convey all of his estate or interest in the title, unless he expressly limits the grant to something less with the language of his conveyance.(138) From a very simplistic economic perspective, the grantor is allowed to rebut the presumption by limiting the conveyance to less than a fee simple, if limiting the conveyance would give him greater utility than conveying a fee simple absolute.(139) Co-owners of land also are free to establish the rules which will govern their relationship by contract, in the absence of which the common law will provide rules to resolve co-ownership disputes.(140) Landlord-tenant law is replete with examples of the influence of the individual liberty principle on the balancing process by which property roles are created or shaped. For instance, a commercial tenant may waive in advance certain tort claims against a landlord and such a waiver usually will be enforceable, assuming that the tenant is able to gain other concessions from the landlord in return for the "exculpatory clause."(141)

Another area of property law in which we see the influence of the individual liberty principle is in the area of donative transfers. Here the principle often is phrased in terms of "giving effect to the intent of the donor," or "giving effect to the intent of the testator or testatrix," in the case of testamentary transfers.(142) Why worry about the donor's intent, when courts also need to protect the public's welfare from fraud and promote the reliability of title with firm, clear rules? We try to honor the donor's intent, because the donor's intent is the clue to what gave the donor the greatest utility from disposing of her property. By protecting the donor's right to maximize her own utility, as reflected in her attempt to dispose of her property by gift, a court also protects her economic freedom and may help maximize social welfare.

Giving effect to the donor's or testator's intent may be a relatively important principle when it is balanced with police power concerns about preventing fraud and undue influence. The balancing process becomes much more complicated, though, when the effect of the gift or devise (or, for that matter, a conveyance of any kind) is to give the donor, testator, or grantor some residual control over the real property after the conveyance. The grantor may exercise that control through limitations on how the land can be used by the grantee, or by establishing conditions that will determine who will be entitled to possession of the land at various times in the future. This attempt by the granter to control events in the future gives the community some interest in the transaction. From the community's viewpoint, limitations on land use or conditions that must be satisfied to entitle parties to future possession create doubt and uncertainty about land titles. Uncertain land titles discourage investment that otherwise could add value to the land and increase social welfare. Thus, protecting the individual liberty of the grantor to create future interests, if that gives her greater utility than simply conveying a fee simple absolute, collides with the reliability principle in the balancing process. And, the residual control retained by the grantor directly diminishes the control that a grantee may exercise over the transferred land, thereby creating a conflict between protecting the grantor's individual liberty and protecting the grantee's individual liberty.

The law of future interests includes several rules that limit a grantor's ability to create future interests. These rules reflect the balance society has chosen between protecting individual liberties of grantors and grantees, while also protecting the reliability of the land title system. The rule in Shelley's Case and the doctrine of worthier title both discourage creation of future interests for someone' s heirs.(143) In modern American property law, the purpose of these rules, where they still survive in some form, is largely to eliminate the need to wait for that someone to die in order to find out who will be his or her heirs.(144) The doctrine of destructibility of contingent remainders, a sixteenth century creation of English common law, destroyed contingent remainders if they did not vest by the time the preceding life estate ended. Most American jurisdictions, looking at the reliability principle from a different angle, have rejected adoption of the doctrine due to the "complexity, confusion, unpredictability and frustration of manifested intent" that typically follow "adherence to the doctrine of destructibility."(145)

The rule against perpetuities, or the rule against remoteness of vesting, may be the most well known example of a compromise between respecting the individual liberty of a grantor and protecting society's interests in having reliable land titles.(146) In effect, the common law rule allowed grantors to control the devolution of ownership of land for the lifetimes of people who were alive when the interests were created, plus one more generation after that first generation of "lives in being."(147) The Pennsylvania Supreme Court explained the rationale behind its use of the rule in a case involving an option to purchase land, as follows:

Such an impress on land [one that violates the rule] ought not

to be sustained, and it cannot be. It isolates the property.

It takes it out of commerce. It removed [sic] it from the market.

It halts improvements. It prevents the land from answering to

the needs of growing communities. No homes can be built;

or towns laid out on land so encumbered [sic], because the

land always remains subject to be taken under the option. It

is not a matter which affects the rights of individuals only.

The entire community is interested. The welfare of the public is

at stake. It is contrary to the well settled public policy of the

state that such an option or right to purchase land should be

held to be good. It was for the express purpose of destroying

such serious hindrances to material and social prosperity and

progress that the rule against perpetuities was brought

forth. And the rule must be rigidly enforced.(148)

Where a jurisdiction seeks to give a little more deference to the grantor's individual liberty, it may adopt the "wait and see" version of the Rule or it may adopt the Uniform Statutory Rule Against Perpetuities.(149) The case of The Symphony Space, Inc. v. Pergola Properties, Inc.,(150) decided in 1996 by the Court of Appeals of New York, illustrates the present vitality of the Rule Against Perpetuities. When the Symphony Space court refused to adopt a "wait and see" approach to common law application of New York's codified version of the traditional Rule Against Perpetuities, insisting instead that any change in the codified Rule was a matter for the New York legislature to consider, the court also revealed its preference for the forum in which the balancing process should take place.(151)

D. The Police Power Principle

Even the most ardent proponents of the individual liberty principle do not claim that protection of individual liberty should give an owner absolute control over her resources. When she uses her resources in a manner that amounts to aggression against other people, "the police power is the proper response."(152) "Police power" is a shorthand reference to the government's authority to protect public health, safety, morals, and welfare with statutes and regulations.(153) To the extent that property rule makers consider protection of public health, safety, morals, or welfare within the balancing function of property law, they are applying what I call "the police power principle."

The most visible use of the police power principle in property law is with public land use controls. The scope of the police power ranges from obvious examples of public safety protections such as subdivision approval standards covering the location of fire hydrants or the placement of street lights, to zoning requirements that ostensibly protect public welfare by preserving neighborhood property values with such tools as minimum lot sizes in residential districts. The determination of which public health, safety, moral, and welfare concerns should be protected with legislation or regulation traditionally has been a matter for legislatures to decide.(154) For the government's exercise of police power to be proper, it must be reasonably related to the regulation's purpose and not unduly oppressive to the landowner.(155) However, the line between regulating private property to protect public health, safety, morals, or welfare and "taking" private property for public use is not always clear.

In recent takings jurisprudence, the United States Supreme Court indicated that a legislature's recitation of the public health, safety, morals, and welfare values is not a fortiori evidence that a regulation does not take private property for public use.(156) Furthermore, as discussed earlier, the Court increased the level of scrutiny from reasonable relationship to rough proportionality and shifted the burden of proof to municipalities, at least in the exaction category of police power cases.(157)

Exercises of police power authority conflict with the individual liberty principle. To the extent that "the distinction between `harm-preventing' and `benefit-conferring' regulation is... in the eye of the beholder,"(158) property rule makers may resolve the conflict between these two guiding principles of the balancing process using Justice Holmes' considerations.(159) Courts may no longer allow legislators, however, to rely on Holmes' "felt necessities of the time" and "intuitions of public policy, avowed or unconscious," to make "[t]he substance of [land use regulations] at any given time pretty nearly correspond[], so far as it goes, with what is then understood to be convenient."(160) After Lucas, courts may require that legislators' reliance upon public policy be more than intuitive and that necessity, rather than convenience, be the connection of means to end in the substantive law of land use regulation.

E. The Nuisance Principle

Nuisance laws provided one of the earliest and most significant limitations on a landowner's ability to use property. A nuisance action can characterized as either public or private. A North Carolina court described private nuisance as follows:

The law of private nuisance rests on the concept embodied in the

ancient legal maxim sic utere tuo ut alienum non laedas, meaning,

in essence, that every person should so use his own property as

not to injure that of another.... As a consequence, a private

nuisance exists in a legal sense when one makes an improper use

of his own property and in that way injures the land or some

incorporeal right of one's neighbor.... (161)

Public nuisances affect a broad range of rights enjoyed by the public. An Arizona court noted that:

The difference between a private nuisance and a public nuisance is

generally one of degree. A private nuisance is one affecting a

single individual or a definite small number of persons in the

enjoyment of private rights not common to the public, while a

public nuisance is one affecting the rights enjoyed by citizens

as a part of the public. To constitute a public nuisance, the

nuisance must affect a considerable number of people or an

entire community or neighborhood .... (162)

Nuisance law can be somewhat of a legal tangle. Prosser and Keaton note that:

There is perhaps no more impenetrable jungle in the entire law

than that which surrounds the word "nuisance." It has meant

all things to all people and has been applied indiscriminately to

everything from an alarming advertisement to a cockroach baked

in a pie. There is general agreement that it is incapable of any

exact or comprehensive definition. Few terms have afforded so excellent

an illustration of the familiar tendency of the courts to seize

upon a catchword as a substitute for any analysis of a problem;

the defendant's interference with the plaintiffs interests is

characterized as a "nuisance," and there is nothing more to be said. (163)

While nuisance law is a valuable legal device for eliminating harmful land use practices, it is not a panacea for all land use ills:

Nuisance law is poorly suited both to cumulative harms and to

those matters that involve sophisticated science, and difficult

decisions about risk--precisely the reason that common law

nuisance has largely given way to statutory regulation

across the spectrum of environmental matters.(164)

With all of the imprecision inherent in the concept of defining a nuisance, courts, and occasionally legislatures, still persist in trying to keep one resource owner from interfering with other peoples' use and enjoyment of their own resources. The fact that such an idea has been part of our legal culture since the ancient legal maxim quoted above was part of early Roman law is evidence of its enduring importance to our sense of justice with respect to resolving property disputes. When this consideration arises in the context of the balancing process by which property disputes are resolved, it is what I refer to as "the nuisance principle."

The nuisance principle conflicts directly with the individual liberty principle, to the extent that giving priority to nuisance prevention will restrict the resource owner's freedom to create or maintain any activity that amounts to a nuisance. However, the nuisance principle also supports the individual liberty principle, to the extent that it protects the neighbors' abilities to use and enjoy their own resources for sustenance and for maximizing personal utility.(165) Perhaps it is because the nuisance principle is somewhat neutral in its aggregate affect on individual liberty that courts have not often viewed application of the nuisance principle as a pretext for taking an owner's private property for public use without compensation.(166) In fact, courts faced with balancing the individual liberty principle with the police power principle in the context of a takings claim often have subordinated the individual's interests to community interests if the regulated activity could be characterized as a nuisance.(167)

The importance of the nuisance principle grew immensely following the Lucas decision in 1992.(168) First, nuisance doctrine is one of the "background principles of [a] State's law of property" that "inhere in the title" to land.(169) Thus, nuisance doctrine helps define what is or is not an owner's property right prior to application of a contested regulation in a takings case. Second, if the total diminution in value rule of Lucas may be coupled with the concepts of segmentation and conceptual severance to turn every land use regulation into a compensable taking, then most forms of land use regulation may become too expensive for many local and state governments. Preservation of the quality of commonly owned resources, such as clean air and clean water, may revert to the era when public nuisance lawsuits were the public's primary tool against polluters.(170) Nuisances may be the exception to this because they may be regulated without paying compensation for a taking,(171) But will a state or local government need a judicial determination of nuisance status before adopting a limit on such an activity? This result may be what private property rights advocates seek to accomplish when they try to limit the nuisance exception in takings legislation to only "traditional" nuisances.(172)

Other property rules that impose some sort of reasonable use obligation upon the property owner also reflect the influence of the nuisance principle. For example, the reasonable use version of the riparian rights doctrine and the reasonable use version of the groundwater rights doctrine both result from balancing the individual liberty principle with the nuisance principle.

F. The Civil Rights Principle

Sometimes the exercise of autonomous control over an owner's resources inhibits the exercise of legally protected rights by other people in contrast with the interference with use and enjoyment in nuisance law. Such a conflict "requir[es] the courts to strike a balance between competing values."(173) A farmer may wish to exclude a social worker or a legal aid attorney from his farm, thereby effectively preventing his migrant employees from receiving federally mandated services.(174) A shopping center owner may wish to exclude students from distributing literature to shoppers on its premises, thereby inhibiting the students' opportunities to exercise their rights to free speech,(175) A homeowner may seek to increase the value of her property by entering into a written compact with her neighbors, by which all parties to the compact agree not to sell their homes to someone who is of a different race.(176) A landlord may choose to not lease an apartment to an unmarried couple solely because he disapproves of the immorality of their choice to "live together in sin," thereby interfering with the couple's right to choose their marital status without being subjected to discrimination in housing transactions.(177)

Consider, too, the common law rule that "a provision in general restraint of marriage [is] void as against public policy" when imposed as a limit on or condition for ownership of property.(178) The general rule has many exceptions, though, such as conveyances providing property as a source of income for a widow until she remarries.(179) When a donor or testator attempts to make marital status a condition of eligibility for ownership of a property interest, the balancing process must include consideration of the individual liberty of the donee or the devisee,(180) This is true even if the liberty interest claimed is not a constitutionally protected right, such as the "right to be single."(181)

When the individual liberty principle collides with the civil rights principle, courts often are quite open about the balancing process in which they must engage. For example, consider McMillan v. Iserman,(182) in which a group of residential neighbors tried to use a restrictive covenant to keep a group home for mentally disabled residents out of their neighborhood. After concluding that the restrictive covenant in question did not bind the lot upon which a maverick landowner intended to establish such a group home, the court found that the restrictive covenant was not enforceable for public policy reasons,(183) In explaining its conclusion, the court described the balancing process as follows:

We recognize the fact that it is the established public policy of this

state to permit and uphold certain restrictions upon the use and occupancy

of real property..... However, it is also the settled public policy of our

state to promote the "development and maintenance of quality programs and

facilities for the care and treatment of the mentally handicapped."

... With two such competing public policies in the scales and being faced

with having to make a choice, we find that the scales in this case tip

decidedly in favor of protecting the state-licensed residential facility

for the mentally handicapped....(184)

The equal protection rights of the mentally disabled group home residents thus were more important than the neighbors' rights to maximize their own happiness by excluding mentally disabled people from the neighborhood. As often is the case, the civil rights principle had more influence over the outcome than the individual liberty principle.(185)

The civil rights principle also sometimes conflicts with the police power principle. In City of Cleburne v. Cleburne Living Center, Inc.,(186) a Texas city required a special use permit for a group home of mentally retarded residents. The municipality did not require a special use permit for similar operations that did not involve mentally retarded people.(187) Holding that the ordinance violated the equal protection rights of the mentally retarded group home residents, the Court found that there was no rational basis for the city's special treatment of the group home for mentally retarded residents.(188)

Another instance when the civil rights principle conflicted with the police power principle was in Buchanan v. Worley.(189) A Louisville, Kentucky ordinance forbade a person from occupying a residence on a block where the majority of homes already were occupied by people of a different race.(190) The City rationalized its ordinance as a police power measure that helped to keep the public peace by keeping neighborhoods segregated by race.(191) Mr. Worley, an African American citizen, agreed to buy a house in Louisville from Mr. Buchanan, a Caucasian citizen, but included an escape clause in the purchase contract which allowed him to nullify the contract if his occupancy of the subject house was forbidden by law.(192) Eight of the other ten homes on the block were occupied by Caucasian families, so the City's segregation ordinance forbade occupancy of the house by Worley.(193) Worley sought to disaffirm the purchase contract; Buchanan asked a chancery court to order specific performance by Worley, apparently assuming that the segregation ordinance did not apply or was unenforceable. The chancery court and the Kentucky Court of Appeals found that the ordinance was valid and enforceable; the ordinance appeared to give Worley a complete defense to the specific performance action.(194) The United States Supreme Court reversed the Kentucky decisions, though, and held that the ordinance was invalid. Faced with the prospect of possibly having to overrule such prior decisions as Plessy v. Ferguson(195) and Berea College v. Kentucky,(196) which had approved the concept of "separate but equal," the Court chose to not analyze the Louisville segregation ordinance on equal protection grounds. Instead, for its analytical starting point, the Court relied upon the Civil Rights Act of 1866, which was adopted to implement the Thirteenth Amendment's abolition of slavery and then effectively reauthorized in 1870 following passage of the Fourteenth Amendment to the United States Constitution. That statute states that "[a]ll citizens of the United States shall have the same right in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property."(197) Keeping its focus on equalizing property rights between people of different races, the Court held that the Louisville segregation ordinance deprived Buchanan of his property right to sell his house to an African American, without due process of law, in violation of the Fourteenth Amendment.(198)

If Buchanan v. Worley is seen as an equal protection case, it illustrates how important the civil rights principle is when it is balanced against the police power principle. Buchanan also provides an interesting starting point for reading Shelley v. Kraemer(199) and Jones v. Alfred H. Mayer Co.(200) In Buchanan, decided in 1917, the Court was willing to invalidate a racially discriminatory ordinance as state action forbidden by the Fourteenth Amendment. By 1948, the Court in Shelley was willing to go further and say that putting a state court in a position of possibly ordering the eviction of an African American from a home he had purchased in St. Louis, thereby enforcing a racially restrictive private covenant, would be "state action" forbidden by the Fourteenth Amendment?(201) It took the Court until 1968, in Jones, to finally hold that even purely private conduct--refusal to sell to an African American purchaser solely on the basis of race--was a violation of federal law.(202)

Do these three cases also illustrate a somewhat perverse application of the stability principle? What would have happened in 1917 if the Buchanan Court had openly advocated the reasoning later used in Jones? Would it have been too revolutionary in 1917 for the Court to have held that all racially discriminatory conduct, by legislatures, courts, or purely private actors, was a violation of federal law? There is no evidence that the Court considered the stability principle when it decided Buchanan, Shelley, or Jones. Perhaps this sequence of cases demonstrates that the stability principle takes care of itself when property rulemakers heed the "felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men,"(203) as they balance the civil rights principle with other guiding principles of property law.

G. The Flexibility Principle

If the considerations noted by Justice Holmes help the stability principle take care of itself in most situations, then maintaining public confidence in the usefulness of the legal system as a peaceful means of resolving property disputes also requires the institution of property law to adjust itself to society's changing needs. As the Supreme Court of New Jersey reminded us in State v. Shack, "[p]roperty rights serve human values[,]... are recognized to that end, and are limited by it."(204) The imperative to adjust property law to serve the needs of society has two dimensions. First, property rules must be flexible enough to deal with new types of conflicts that arise from changes in science, technology, and what we know about the world around us. Second, property rules must be flexible enough to adapt to changing social ideas of reasonableness, with respect to conflicting expectations for resource use. As it is applied in the balancing function of property law, I call this imperative the "flexibility principle."

The first dimension of the flexibility principle--adapting old conflict resolution rules to fit new types of property conflicts--comes into play when we try to adapt property law to technological innovations. When science or technology opens a new door, one of the first questions that property rulemakers must address is whether new expectations made possible by the innovation should be protected as property rights.(205) When new social science approaches to easing the burdens of poverty led to the establishment and enlargement of massive Federal entitlement programs in the 1960's, Charles Reich led property scholars in questioning whether eligibility for entitlements should be viewed as the "new property."(206) When scientists in a laboratory at the UCLA Medical Center developed genetic material with potential medicinal benefits from a single patient's blood samples, the California courts had to decide whether the patient's blood remained his property after it was taken from him before they could address his claim for damages against the hospital based upon conversion.(207)

Adapting old rules to fit new conflicts also means that we must be prepared to rethink and amend some rules as our scientific understanding of cause and effect relationships involving resource consumption grows. For example, consider the history of our society's use of DDT as a pesticide. Use of DDT in the South Pacific during World War II saved countless lives that otherwise would have been lost to malaria.(208) Postwar use of DDT led to greater agricultural production and relatively pest-free urban comforts.(209) Yet, scientific study of the cumulative public health affects of DDT use revealed a potential human and ecological disaster by the late 1960s and early 1970s.(210) Property owners who were flee to use DDT to control pests on their land in the early 1960s no longer could use the chemical in its pure form by the early 1970s.(211) One of the most important lessons of our experience with DDT should be that our property rules must leave room to adapt to changes in what we know about the web of ecological relationships that bind us to every other component of our environment.

The second dimension of the flexibility principle may be best illustrated by the revolution that has taken place in landlord-tenant law during the past five decades. As landlord-tenant law became more a mix of urban residential problems and commercial leasing problems, the old common law rules developed within the context of agricultural economics and American courts modernized their practices. Acknowledging that "[c]ourts have a duty to reappraise old doctrines in the light of the facts and values of contemporary life--particularly old common law doctrines which the courts themselves created and developed," the D.C. Circuit introduced the idea of an implied warranty of habitability to residential landlord-tenant law.(212)

The Arkansas Supreme Court drew upon Justice Holmes' pithy wisdom when it quoted his assertion that "[i]t is revolting to have no better reason for a rule than that so it was laid down in the time of Henry IV," in rejecting the traditional common law test for distinguishing between an assignment and a sublease and then adopting a rule that looks to the intent of the parties.(213) The Hawaii Supreme Court bowed to "increasing pressure for progressive decisions from the courts even in the area of the reform of property law" when it refused to apply the common law doctrine of merger to extinguish a leasehold that had been converted into a condominium.(214) In the process, the Hawaii court declared that it "will not follow a common law rule relating to property where to do so would constitute a quixotic effort to conform social and economic realities to the rigid concepts of property law which developed when jousting was a favorite pastime."(215) The Pennsylvania Supreme Court was less colorful in a decision addressing the risk of loss as between a commercial landlord and tenant following a destructive fire, but the court nicely summarized the second dimension of the flexibility principle with the following portion of its opinion:

In reaching a decision involving the landlord-tenant relationship, too

often courts have relied on outdated common law property principles and

presumptions and have refused to consider the factors necessary for an

equitable and just conclusion ....

The trial court's decision to bind the lessee to the lease was simply an

application of an outdated common law presumption. That presumption

developed in a society very different from ours today: one where the land

was always more valuable than the buildings erected on it. Buildings are

critical to the functioning of modem society. When the parties bargain for

the use of a building, the soil beneath is generally of little consequence.

Our laws should develop to reflect these changes.(216)

Contrast the language cited in the preceding paragraph with the language from court opinions concerning the reliability principle (e.g., "uniformity and certainty in rules of property are often more important and desirable than technical correctness").(217) Flexibility and reliability always will combine with each other to produce some degree of tension in the balancing process. Each principle moderates the influence of the other. The reliability principle keeps us from making impulsive, ill-considered changes in property rules. The flexibility principle keeps property rules from stagnating and losing touch with the society they serve. Together, the two principles produce a slowly evolving institution of property law that changes with society at the same time that it moderates the pace of change in society.

H. The Ecological Integrity Principle

For the past three and a half decades, property law has changed significantly to adapt to our increased understanding of the web of ecological relationships that bind us to every other component of our environment. These changes, which led to the establishment and expansion of what we now call environmental law, have had a profound impact on our culture while also being profoundly influenced by other cultural changes. The Civil Rights movement of the 1950s and 1960s and the women's rights movement of the 1970s made us think collectively about the nature of our inter-relationships. Attention to such ethical and moral issues also spread to our relationships with nature.(218) At the same time that we began to examine our relationships with nature, natural scientists made us acutely aware of our collective impact upon the health of nature.(219) Advances in technology during the same three and a half decades also have enabled natural scientists to gather, store, and analyze more information about our relationships with nature, on scales that, until recently, were unthinkable. Greater attention to public ethical issues, advances in scientific knowledge, and major advances in information technology have forced us to rethink how we balance various principles to resolve environmental conflicts with existing property rules.

One of the major changes in our understanding of ecology has happened only recently. For many generations, lasting into the 1980's, we thought that organisms lived together in communities linked by food pyramids, energy chains, and similar relationships; such communities, or ecosystems, tended toward a state of equilibrium in which everything in nature was in balance with everything else. When disturbed, such an ecosystem would try to work itself back to the ideal balance of nature. We built our early attempts to preserve natural communities around the idea of minimizing natural disturbances to ecosystems, restoring the balance of nature in damaged ecosystems, and encouraging ecosystems to exist in the balance of nature.(220) Biologists now know that ecosystems do not exist in or by reference to any particular state of equilibrium for very long. Ecosystems are dynamic and constantly change in response to natural and man-made disturbances. Natural disturbances may even be good for ecosystems?(221)

With our new understanding of biology mid ecology has come a greater appreciation for the importance of protecting the integrity of ecosystems. Ecosystem integrity is an enormously complex concept?(222) At the risk of oversimplifying the explanation, though, the basic idea is to "maintain the ability of each species within [a biotic] community, as well as the community as a whole, to evolve and change in response to, and to recover from, the necessary and inevitable disturbances that will occur naturally over time."(223)

Protecting ecological integrity involves making value choices about the ecosystems that we seek to protect. First, ecosystems must be defined according to variables of spatial and temporal scale, as well as hierarchical organization.(224) Should we try to define ecosystems according to the ways in which they process and transfer matter or energy? Or should we try to define ecosystems according to the ability of biotic communities to organize themselves holistically in response to information about interdependencies and disturbances? Or should we try to define ecosystems by reference to our empirical observations and analysis of biotic communities?(225) To address these questions, we must choose among competing values just to select the criteria by which we will try to describe the hierarchical organization of an ecosystem. We should note that in the process of evaluating ecological integrity, scientists are capable of measuring and analyzing changes in certain variables that help define an ecosystem, but scientists and others can make only educated judgments about overall integrity.(226) In terms more familiar to students of the law, ecological integrity or the lack thereof is a conclusion, not a fact to be found by scientists.

Once an ecosystem is identified by reference to some combination of hierarchical organization, space, and time, evaluating its integrity or lack thereof involves making more value choices. In choosing the variables that we will measure in order to analyze changes over time and come to some conclusion about the integrity of a particular ecosystem at a given moment, we must account for the economic, political, and public policy issues that arise when humans are components of the ecosystem under evaluation.(227) We cannot leave humans and human needs out of the equation. If protecting ecological integrity is to help guide the balancing process by which different legal institutions create, interpret, and apply property rules, and if property rules define property rights, and if "[p]roperty rights serve human values,"(228) then humans must be recognized as components of ecosystems, where appropriate. Recognizing humans as members of a biological community may be appropriate only when human activity is an important part of the hierarchical organization by which we define the biological community, or ecosystem. Just being present, but not functional, within a biological community may not be sufficient justification for including human comfort as one of the variables we use to measure changes in the community for purposes of making judgments about its integrity.(229)

Taking humans into account as components of ecosystems allows us to see how private property ownership can be reconciled with protection of ecological integrity, instead of treating private property ownership as a barrier to effective environmental protection.(230) By treating humans as members of biological communities, we expand our perspective on the community interests that must be harmonized with individual interests in the balancing function of property law. Protecting ecological integrity becomes another guiding principle in the balancing process, reflecting the interests of the entire biological community that will be affected by humans' use of resources. If the law treats humans as components of their land communities, then including protection of ecological integrity as a guiding principle in the balancing function of property law has a legitimacy that it would not have if we tried to exclude human needs and preferences from protection within the concept of ecological integrity.(231)

How does protection of ecological integrity fit into the balancing process with other guiding principles? To begin the comparison, protecting ecological integrity is the ultimate means to preserve a stable social order, yet it does more than that. If humans slip into political anarchy, they still have some hope of recovering and reorganizing new polities as long as their biological communities will support human life. However, if we slip into the ecological equivalent of anarchy, then no degree of political order will save our species from a real-life tragedy of the commons.

Long-term reliability of the institution of property law is threatened by degradation of the environment. Reliability is enhanced, on the other hand, by measures that sustain our economic system through protection of ecological integrity.(232) Sustainability even may be seen as a condition precedent for reliability.

How does protection of ecological integrity fit with protection of individual liberty? The answer is simple. Political and economic liberty mean nothing if they can be exercised only in a degraded environment where it is not possible to enjoy liberty. Again, we could describe ecological integrity as a condition precedent for enjoyment of political and economic liberty, as long as we include humans in our definition of ecosystems.(233)

Protection of ecological integrity differs from protecting public health, safety, morals, and welfare. The police power principle traditionally has concerned itself primarily with the welfare of human political communities.(234) The ecological integrity principle goes farther and concerns itself with the welfare of land communities, which include humans living in political communities.

Likewise, the nuisance principle and the ecological integrity principle have much in common, but serve distinct purposes. The nuisance principle implicitly recognizes interdependent relationships and ripple effects of resource use, as it protects one set of expectations from another. The ecological integrity principle again goes farther and protects the entire web of interdependent relationships, and their ability to stay connected, in a biological community.

Our federal constitution and laws do not now guarantee us rights to clean air, clean water, uncontaminated soil, pristine wilderness areas, or biodiversity.(235) But, what do equal protection rights mean in the context of distribution of such public goods? Are not environmental justice issues really about distribution of the public good we now have identified as protection of ecological integrity? Remember that humans are members of biological communities. The civil rights principle and the ecological integrity principle should fuse to provide equal protection from environmental disturbances that threaten the integrity of a poor or minority community, through the balancing function of property law.

The flexibility principle is of crucial importance to protecting ecological integrity with ecosystem management. Ecosystem management includes use of a management style known as adaptive management.(236) Adaptive management is based on feedback loops that allow system managers to try a regulatory technique designed to protect ecological integrity, monitor its affects and measure its results over time, and then make changes in the regulatory technique to try to produce better results. This process must repeat itself over and over, ad infinitum. Being able to make responsive changes to land use and other regulations that are based on feedback from monitoring the affects of existing regulations is essential to protecting ecological integrity. Such flexibility will conflict with the reliability principle in what could produce a draw, if not for the added force of the ecological integrity principle in the balancing function of property law.

Perhaps the best example of a court balancing the ecological integrity principle with other property law principles is National Audubon Society v. Superior Court,(237) otherwise known as Mono Lake. The case involved appropriation of water from tributaries of Mono Lake by the City of Los Angeles. Environmentalists sought to limit the City's appropriations of water because not enough water was reaching Mono Lake to sustain its unique ecosystem. The California Supreme Court used the public trust doctrine as the vehicle by which it protected the ecological integrity of the Mono Lake ecosystem.(238) Against the ecological integrity principle, the court had to consider the reliability principle--the City needed to know whether it could rely on its prior appropriation of given volumes of water to provide water for its citizens.(239) Among other things, the court held that the public trust doctrine (the embodiment of the ecological integrity principle in this instance) in California protected "preservation of... [tidelands] in their natural state, so that they may serve as ecological units for scientific study, as open space, and as environments which provide food and habitat for birds and marine life, and which favorably affect the scenery and climate of the area."(240)

In harmonizing the principles at stake in the case, the court sought "an accommodation which will make use of the pertinent principles of both the public trust doctrine and the appropriative water rights system," and which would draw "upon the history of the public trust and the water rights system, the body of judicial precedent, and views of expert commentators."(241) The result of the balancing process was a compromise that would "permit an appropriator to take water from flowing streams ..., even though this taking does not promote, and may unavoidably harm, the trust uses at the source stream,"(242) while bearing in mind the State's "duty as trustee to consider the effect of the taking on the public trust ... and to preserve, so far as consistent with the public interest, the uses protected by the trust."(243) The court's resolution of the dispute thus protected ecological integrity while recognizing that humans might be part of the ecosystem that depended on the water for sustenance.

The public trust doctrine is one of the most familiar common law tools for protecting ecological integrity within the balancing function of property law.(244) However, the public trust doctrine is not the only common law tool used to protect ecological integrity. Common law rules governing the reasonable use of riparian water rights, reasonable use of groundwater, reasonable diversion of diffuse surface water, creation or maintenance of private and public nuisances, and provision of lateral and subjacent support also depend to some degree upon recognition of "connectedness" between different components of an ecosystem.(245)

Not coincidentally, the public trust doctrine was revived as an environmental protection tool at roughly the same time that Congress and state legislatures began to seriously address environmental problems with public laws. The most familiar public law tool for protecting ecological integrity within the balancing function of property law is the Endangered Species Act of 1973 (ESA).(246) Section nine of the ESA prohibits private landowners from "taking" any endangered species of fish or wildlife.(247) "Taking" is defined in the statute to include, among many other things, "harming" an individual of an endangered species of fish or wildlife.(248) The Secretary of Interior adopted regulations pursuant to the ESA, defining "harm" to "include significant habitat modification or degradation where it actually kills or injures wildlife ... ."(249) In Babbitt v. Sweet Home Chapter of Communities for a Great Oregon,(250) the United States Supreme Court upheld the Secretary of the Interior's definition of "harm" as including habitat destruction and modification.(251) The Court's opinion in Sweet Home thus validates the public law link between protecting ecological integrity and limiting private property ownership.(252)

One primary problem with protecting ecological integrity within our current structure of property laws is that our paradigm for government responses is built around remediating failures of the free market to protect resource quality. We have to make a problem fit into one of the standard categories of market failure--negative externalities, prohibitive transaction costs, inadequate information to make rational choices, free riders, irrational discounting of preferences of future generations, and so on--in order to collectively remediate the problem. For example, air and water pollution problems fit neatly into the externalities category, triggering regulatory responses that try to stop the externalities before they happen, backed up by a tort system that attempts to internalize the externalities for the producer of the externalities if they do happen. Habitat destruction and loss of biodiversity do not fit quite so well into standard categories of market failures, or at least we are not used to thinking about them as "externalities."(253) When we try to deal with habitat destruction and loss of biodiversity as externalities, by subjecting them to police power regulation, many regulated parties conclude that such regulation does not make sense.

Regulations that address loss of biodiversity and habitat destruction will make much more sense when we become more accustomed to recognizing protection of ecological integrity as an important community interest to be harmonized with other principles in the balancing function of property law. As Congress considers reauthorization of the Endangered Species Act, for example, it would be wise to explicitly include the ecological integrity principle in the balance of interests that it seeks to harmonize through the political process. With sufficient grassroots political participation to counteract special interest group influence in the inevitable debate about such legislation, we might even gain a clearer idea about how to account for humans in the biological communities whose integrity we must protect. Oliver Houck provides an excellent suggestion for harmonizing the interests of humans and other components of our biological communities in his defense of endangered species protection.(254) Houck first notes that litigation to protect the habitat of listed species often is seen as a surrogate for trying to stop development of that habitat.(255) He next characterizes individual species protection as a surrogate for ecosystem protection.(256) Houck closes the loop by suggesting that individual species should be protected for their value to us as indicators of the overall health of ecosystems from which we also draw sustenance.(257) By viewing endangered or threatened species as the equivalents of the proverbial canary in a coal mine, we make those species surrogates for the most vulnerable humans among us.(258) To paraphrase Daniel Botkin, we see ourselves in the mirror of nature when we view the health of other species as a surrogate for our own health.(259) The harmony may not need to be so discordant after all.

IV. CONCLUSION: A GREEN TURN TOWARD RECOGNIZING AN INDIVIDUAL'S PLACE WITHIN COMMUNITIES

American property law, at the end of the twentieth century, mediates between protection of individual freedoms of property owners and protection of the interests of communities. Property law does not arbitrate conflicts between individual and community interests. The outcome of a property law is not an all or nothing rule that honors one set of interests at the expense of the other. Each property rule, regardless of its source, represents a harmony of a variety of individual and community interests. This harmony reflects society's judgment about the reasonableness of conflicting expectations concerning what a resource owner might do with her possessions.

For a long period of economic growth and territorial expansion in American history, the institution of property law gave great autonomy to individual resource owners. In the face of stiff resistance from those who would continue to assign great weight to individual interests and little weight to community interests, the institution of property law began shifting in the direction of giving more weight to community interests during the post-Depression era between world wars. The pace of the shift toward giving community interests greater consideration accelerated with the growth of suburbs, the baby boom, and the accelerated rate of change from rural to urban life in the post-World War II years. Property law, as a mediating institution between private and public life, changed along with society in order to reflect the complex realities of modern American life. One of the most important steps in that process of change was when we as a society, passing judgment on the reasonableness of resource owners' expectations through our property rule making institutions, began to acknowledge our dependence upon the biological communities in which we live and from which we draw our life-sustaining forces.

Although we have begun to acknowledge our dependence upon ecological integrity, the process of including protection of ecological integrity in the balancing function of property law is nowhere near complete. Our understanding and legal recognition of humankind's place in land communities lags behind our understanding and recognition of the importance of humans' relations to each other. Property laws do not reflect principles of biology, ecology, and other natural sciences to anywhere near the extent that property laws reflect principles of philosophy, sociology, economics, and other social sciences. The Civil Rights movement of the 1950s and 1960s, the women's rights movement of the 1970s, the environmental awakening of the 1960s and 1970s, and the information technology explosion of the 1980s and 1990s have combined to push the institution of property law close to the limits of its ability to adapt to social change. The institution of property law has produced rules that do not always appear to make sense to everyone; a backlash has developed that seeks to undermine progress in environmental law in the name of protecting private property rights.

Green approaches to property law reform seek to address the sometimes apparent disjunction between property rules and common sense by adding consideration of the full range of interests of biological communities and their component parts to the balancing function of property law, and by viewing individual interests from a more realistic perspective that recognizes individual resource owners as members of biological communities. If and when we recognize all the interests of biological communities, while still recognizing interests that promote individual liberty and more traditional community interests, in the balancing function of property law, we will be able to create, interpret, and apply property rules that better harmonize enjoyment of our resources today and preservation of resources for our own future enjoyment and for the enjoyment of our descendants.

The National Wildlife Federation (NWF) provides an illustration of such a green approach to property law reform. In March 1996, the Board of Directors of NWF voted to change the sixty-year-old conservation organization's logo and slogan. The old slogan was "Working for the Nature of Tomorrow."(260) The new slogan is "People and Nature - Our Future is in the Balance."(261) As is the case with any good public relations tool, the new NWF slogan has more than one meaning: the reference to our future being in the balance is both a warning and a prescription. The slogan warns us that our future quality of life depends upon our ability to address environmental issues today. The slogan also prescribes balance between the needs of people and the needs of other components of people's ecosystems as the answer for today's environmental issues.(262)

The NWF takes pride in its common sense balancing approach to conservation, as reflected in its new slogan. Former NWF Board President William W. Howard explained:

Too many people have been taken in by the false notion that they must choose

between a healthy environment and a healthy economy. The truth is that a

healthy economy ultimately requires a healthy environment. The Federation

has always stood for the idea of balancing resource use today with the needs

and rights of future generations. In the short-term, balance is simply common

sense. In the long term, it's our moral responsibility.(263)

The NWF commitment to common sense conservation is based in large part upon the organization's roots as a collective voice for individuals and groups of people that utilize nature for purposes ranging from bird-watching to forestry.(264) In effect, the NWF's common sense approach to conservation is nothing more than recognition that humans are part of the ecosystems upon which they depend for sustenance, so we must take into account human needs when we choose the variables that we will measure in order to keep track of ecosystem integrity. The common sense ideas advocated by NWF include much more than just slogans. For example, NWF advocates giving private landowners financial incentives to encourage them to pursue habitat conservation or habitat improvements. Those incentives might include: 1) property tax credits for land subject to habitat conservation plans, 2) deferral of estate taxes attributable to the value of land subject to habitat conservation plans, 3) direct subsidy payments to landowners for managing their lands for biodiversity instead of crop production (as with the Conservation Reserve Program and the Wetlands Reserve Program), or 4) public purchase of conservation easements from landowners who volunteer to sell such easements.(265) NWF advocates other common sense ideas, including providing technical assistance to small private landowners, states, tribes, and local communities who otherwise do not have the expertise or resources to plan for habitat conservation.(266) In practice, NWF has been instrumental in promoting the use of Citizens Oversight Committees to be responsible for managing plans for the recovery of endangered species in cases such as the reintroduction of grizzly bears to the Bitterroot Range in the northern Rocky Mountains.(267) All of these common sense ideas and efforts reflect practical applications of former NWF General Counsel Oliver Houck's suggestion that we identify ecosystem health as a surrogate for our own health and try to protect ecosystem health through habitat conservation and endangered species protection.(268) The next step in this line of thinking is to recognize that we can protect ecosystem health by protecting ecological integrity within the balancing function of property law.

Perhaps all Green property law reformers should adopt some variation of the NWF slogan. Thinking of our future as balanced between people and nature would remind us that general property laws must reflect such a balance because they affect our lives and our actions every single minute of every single day. Remembering that people's needs must be acknowledged in the common sense balance also might help us avoid much of the destructive political backlash that threatens to undermine many of the environmental gains of the past thirty years. The mechanism by which we can protect the health of ecosystems upon which we depend for sustenance (while accounting for human needs within those ecosystems) is explicit, reasoned consideration of protection of ecological integrity as a guiding principle within the balancing function of property law.

(1) OLIVER WENDELL HOLMES, JR., THE COMMON LAW 1-2 (1923).

(2) The positivist, Benthamite view of property rights upon which I have based this Article is one of two competing views of property rights in modern American legal discourse. The other prevalent view might be described as the Lockean, natural law view of property rights. More about the contrast between these two views of the conceptual foundation of property will follow shortly in the Introduction to this Article. See infra notes 24-32 and accompanying text.

(3) The court's role may be as an interpreter of privately negotiated property rules in a contract, or as an interpreter of statutory, administrative, or constitutional property rules, or as the creator or enforcer of common law property rules. For more on these roles of courts, see infra notes 40-49 and accompanying text. Holmes was writing about more than just common law property rules, but his general description of how common law rules are generated by courts applies to property rules as well as to any other type of common law rule. Holmes's description of the common law rule making process is appropriate for tort, contract, and other rules, too, although the factors to be balanced in any such case may differ slightly from the factors to be balanced in a property case.

(4) HOLMES, supra note 1, at 1.

(5) If the resource owner is allowed to use or exchange her resource for whatever gives her the greatest utility, then her utility added to the utility produced by other market exchanges will contribute to maximizing social utility. Maximizing aggregate social utility, or social welfare, is the real guiding principle behind this law and economics approach to property law. See infra notes 119-22 and accompanying text.

(6) See, e.g., Symposium, Beyond the Balance of Nature: Environmental Law Faces the New Ecology, 7 DUKE ENVTL. L. & POLICY FORUM I (1996) (addressing the challenge to environmental law posed by the "new ecology"); Fred P. Bosselman & A. Dan Tarlock, The Influence of Ecological Science on American Law, 69 CHI.-KENT L. REV. 847 (1994) (exploring how changing paradigms in ecology influence law and policy); Biodiversity Symposium, Coming to Grips for Biodiversity, 8 TUL. ENVTL., L.J. 1 (1994) (discussing the influence of ecological science on American law).

(7) HOLMES, supra note 1, at 1.

(8) Peter Byrne first explored the intersection of Green political thought and American property law in J. Peter Byrne, Green Property, 7 CONST. COMMENTARY 239 (1990). I continued Byrne's effort to criticize property theories based on exploitation and consumption with The Green Alternative to Classical Liberal Property Theory, 20 VT. L. REV. 299 (1995) [hereinafter Green Alternative]. In Green Alternative, I suggested that property law's role in the effort to find a sustainable balance between humans and their environment should be to protect the integrity of land communities in the tension between individual autonomy and community interests, but I did not fully explain how property law should fill that role. Id. at 319-20. In this Article, I will complete the unfinished task by explaining how to protect the integrity of biological communities within the balancing function of property law.

(9) HOLMES, supra note 1, at 1.

(10) The Supreme Court of California, in City of Berkeley v. Superior Court of Alameda County, 606 P.2d 362 (Cal. 1980), described the steps it would follow to resolve the conflicting expectations of a waterfront landowner and a city, acting as trustee of public trust interests in filled land, as follows:

... [T]he appropriate resolution is to balance the interests of the public

in tidelands conveyed pursuant to the 1870 act against those of the

landowners who hold property under these conveyances. In the harmonizing of

these claims, the principle we apply is that the interests of the public

are paramount in property that is still physically adaptable for trust uses,

whereas the interests of the [landowners] should prevail insofar as the

tidelands have been rendered substantially valueless for those purposes.

Id. at 373 (emphasis added). By harmonizing the competing interests, the court was able to fashioned a dispute resolution rule that protected the public trust values where it was still possible to do so and protected the landowner's development expectations where the public trust no longer could be served by prohibiting development.

(11) By categorizing the various interests for which we must account in the balancing function of property law as serving either individual or community needs, I do not mean to create a false dichotomy between individuals and their communities. Richard J. Lazarus, Debunking Environmental Feudalism: Promoting the Individual Through the Collective Pursuit of Environmental Quality, 77 Iowa L. REV. 1739, 1773-74 (1992); see generally Eric T. Freyfogle, Ethics, Community, and Private Land, 23 ECOLOGY L.Q. 631-32, 635 (1996) [hereinafter Freyfogle, Ethics, Community and Private Land] (discussing preservation of basic individual private property needs in the face of regulatory agencies and land use regulation).

(12) HOLMES, supra note 1, at 2.

(13) Id. at 1.

(14) Id.

(15) See infra notes 95-99 and accompanying text.

(16) Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 414 (1922).

(17) HOLMES, supra note 1, at 1-2.

(18) For references to efforts to protect private property owners' rights with legislation, see supra note 20 and accompanying text. For references to the environmental feudalism argument that represented the extreme of the backlash in scholarly circles, see infra note 115 and accompanying text. The backlash has been uglier in the world outside of legislative and scholarly criticism. See DAVID HELVARG, THE WAR AGAINST THE GREENS: THE "WISE USE" MOVEMENT, THE NEW RIGHT, AND ANTI-ENVIRONMENTAL VIOLENCE (1994) (alleging a connection between restrictions on individual resource owners and a variety of violent acts directed against environmentalists and environmental regulators); Jonathan Franklin, Operation Snuff Smokey, OUTSIDE, Sept. 1995, at 28 (describing bombings of U.S. Forest Service offices in Nevada during the spring of 1995).

(19) An early illustration of the backlash is the case of TVA v. Hill, 437 U.S. 153 (1978), where environmentalists used the Endangered Species Act (ESA) to try to stop construction of the Tellico Dam across the Little Tennessee River. The environmentalists claimed that completion of the dam project would doom a population of an endangered fish known as the snail darter. The popular press and proponents of the dam immediately characterized the conflict as one where the economic good of people in the area of the dam was being sacrificed for the sake of saving a population of useless minnows--a classic "doesn't-make-sense" environmental rule. After the U.S. Supreme Court reluctantly concluded that Section 7 of the ESA indeed forbade continued work on the dam under the circumstances, proponents of the dam project quietly engineered a parliamentary maneuver in Congress that expressly overrode the Court's decision as it applied to the Tellico Dam. The dam was completed and flooding in the Little Tennessee River Valley began in 1979. This version of the story is told in ZYGMUNT J. B. PLATER ET AL., ENVIRONMENTAL LAW AND POLICY: NATURE, LAW, AND SOCIETY 659-65, 670 (1992).

(20) H.R. 925, 104th Cong. (1995). For a good summary of recently enacted legislation, including a special focus on Florida's "Private Property Rights Protection Act," see Frank A. Vickory & Barry A. Diskin, Advances in Private Property Protection Rights: The States in the Vanguard, 34 Ara. Bus. L.J. 561 (1997). Another good summary is included in Mark W. Cordes, Leapfrogging the Constitution: The Rise of State Takings Legislation, 24 ECOLOGY L.Q. 187 (1997). For a defense of such legislation, see Nancie G. Marzulla, State Private Property Rights Initiatives as a Response to "Environmental Takings," 46 S.C.L. Rev. 613 (1995). For a critique of the legislative approach to takings issues, see Joseph L. Sax, Using Property Right. s to Attack Environmental Protection, 14 PACE ENVTL. L. REV. 1 (1996).

(21) For example, the majority opinion written by Justice Scalia in Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992) may have been an attempt to contradict the result of Just v. Marinette County, 201 N.W.2d 761 (Wis. 1972). Joseph L. Sax, Property Rights and the Economy of Nature: Understanding Lucas v. South Carolina Coastal Council, 45 STAN. L. REV. 1433, 1437-40 (1993). In Just, the Wisconsin Supreme Court used the "natural use doctrine" to conclude that no compensable taking would occur if a shoreland zoning ordinance effectively required a landowner to leave his land in its natural condition. 201 N.W.2d at 766, 768. Frank Michelman suggested that the Lucas opinion may have been "a move in still another conservative judicial gambit, that of using the Federal Constitution to dictate a legal-formalist jurisprudential style to States not disposed on their own to agree with Justice Scalia that the only true Rule of Law is a law of rules." Frank I. Michelman, Property, Federalism, and Jurisprudence: A Comment on Lucas and Judicial Conservatism, 35 WM. & MARY L. REV. 301, 327 (1993).

Another example of conservative judicial activism can be found in United States v. Olin Corp., 927 F. Supp. 1502 (S.D. Ala. 1996). In Olin, District Judge W. Brevard Hand refused to approve a consent decree in a CERCLA enforcement action, holding instead that Congress's commerce clause authority did not permit regulation of a release of hazardous waste that did not cross state borders and that CERCLA could not impose liability for releases of hazardous waste that preceded adoption of the statute. Id. at 1519, 1532-33. The Eleventh Circuit reversed Judge Hand on both counts, noting that Judge Hand's denial of the retroactive application of CERCLA conflicted with the Eleventh Circuit's own jurisprudence on that issue and "also [ran] contrary to all other decisions on point." United States v. Olin Corp., 107 F. 3d 1506, 1511-12 (11th Cir. 1997).

(22) See, e.g., Oliver A. Houck, On the Law of Biodiversity and Ecosystem Management, 81 MINN. L. REV. 869, 891-92 (1997) (describing some degree of initial resistance by the United States Forest Service to requirements that it protect biodiversity with its forest management plans).

(23) HELVARG, supra note 18.

(24) Neo-Lockeans have chosen a rhetorically strategic position to defend and have lured environmentalists into debating the issues on natural law terms, leading to discussion of the Lockean proviso and similar issues. See Carol M. Rose, "Enough and as Good" of What?, 81 NW. U. L. REV. 417 (1987) (discussing rational utility maximizing and their decision making processes); Freyfogle, Ethics, Community and Private Land, supra note 11, at 633-37 (examining the views of Locke and Maine in the private property context). Another rhetorical device of the neo-Lockeans is to try to define property as essentially everything that is important for a human being to flourish, including rights of freedom of speech, freedom of religion, and freedom of assembly. This technique predetermines the outcome of debates about the importance of property rights and gives landowner autonomy over land use decisions the same status as individual exercise of First Amendment freedoms. See, e.g., Loren A. Smith C.J., Life, Liberty & Whose Property?: An Essay on Property Rights, 30 U. RICH. L. REV. 1055, 1056 (1996) ("[P]roperty includes all of the fundamental aspects of the integrity of the human person... "); John O. McGinnis, The Once and Future Property-Based Vision of the First Amendment, 63 U. CHI. L. REV. 49, 64-71 (1996) (arguing that James Madison viewed free speech as a property right and used John Locke's ideas about property to support Madison's conceptualization of the First Amendment).

Environmentalists must turn the debate to positivist terms if they wish to minimize the damage done by the property rights backlash. Eric T. Freyfogle, Ownership and Ecology, 43 CASE W. RES. L. REV. 1269 (1993).

(25) See JAMES W. ELY, JR., THE GUARDIAN OF EVERY OTHER RIGHT: A CONSTITUTIONAL HISTORY OF PROPERTY RIGHTS 17 (1992) (discussing how Locke's theories regarding political philosophy relate to his theories about private property). Richard Epstein has been the strongest intellectual guiding light of the private property rights movement as is evidenced by his work in RICHARD A. EPSTEIN, TAKINGS: PRIVATE PROPERTY AND THE POWER OF EMINENT DOMAIN (1985). Epstein has backed away somewhat from his earlier emphasis on a natural law concept of property and now emphasizes that he primarily opposes government's intervention in our property rights system, regardless of whether we justify property rights as absolute under natural law or as limited under a positivist approach. Richard A. Epstein, Property as a Fundamental Civil Right, 29 CAL. W. L. REV. 187, 207 (1992).

(26) Presidents Reagan and Bush, influenced by the neo-Lockean view of property, also did their best to ensure that when a federal judge's prejudices influence the balancing process, those prejudices will be consistent with the neo-Lockean view of property. Cf. Richard J. Lazarus, Putting the Correct "Spin" on Lucas, 45 STAN. L. REV. 1411, 1414-15 (1993) (asserting that "the conservative movement's greatest success" (remember, Lazarus was writing before the November 1994 elections) is "its capture of the federal judiciary" through "appointment of a critical mass" of conservative judges during the Reagan and Bush administrations).

(27) Foremost among the advocates of community interests is Eric Freyfogle. Here is a representative sample of Freyfogle's views on the subject:

In today's era of environmental controls, ownership norms are again shifting

directions .... What is happening in the case of these restrictions is not a

reduction in property rights, but rather a reconfiguration of those rights.

The right to use the land--to abuse the land, many would say--is surely being

curtailed. But while a given owner now has less ability to alter the land,

there comes with that reduction an increased right to halt similar activity

by surrounding landowners. There is thus a reduction in the right to use, but

an increase in protection, which is to say that the overall bundle of rights

is no smaller in size, only different in composition .... It should be

obvious, but still is not, that eroding a hillside, and leaving no room for

wildlife, and polluting a waterway, are all harmful acts. When a law

restricts these activities, it merely asks landowners to become responsible

community members ....

Eric T. Freyfogle, The Construction of Ownership, 1996 U. ILL. L. REV. 173, 180-82 [hereinafter Freyfogle, The Construction of Ownership] (emphasis added).

I count myself among the advocates of the community interests protected by environmental laws and will use a positivist concept of property as the basis for my thesis in this Article. Environmentalists also recognize that nature imposes some laws on us with respect to resource consumption. The laws of nature should not be confused with the neo-Lockean idea of natural law. Some of nature's laws that are relevant to resource consumption are described in ROBERT M. HAZEN & JAMES TREFIL, SCIENCE MATTERS: ACHIEVING SCIENTIFIC LITERACY (1991), as including: 1) the entire biosphere is interconnected, so that nothing can be changed without affecting something else, 2) the geological features of the earth's surface are not permanent, 3) materials cycle through the Earth's systems, and 4) life forms evolve through the mechanism of natural selection. See also David B. Hunter, An Ecological Perspective on Property: A Call for Judicial Protection of the Public's Interest in Environmentally Critical Resources, 12 HARV. ENVTL. L. REV. 311, 314-16 (1988) (arguing that the inherent finiteness of the environment imposes constraints on people's freedom that do not involve value choices, but provide an objective guide for land use controls).

(28) This focus on "property" as the sum of relations between people with respect to a thing, instead of using the term "property" to refer to the thing itself, is an early twentieth century, Progressive approach that was pioneered by Wesley Hohfeld. MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW 1870-1960: THE CRISIS OF LEGAL ORTHODOXY 151-56 (1992); Wesley Hohfeld, Some Fundamental Legal Conceptions As Applied In Judicial Reasoning, 23 YALE L.J. 16 (1913). Hohfeld's analysis of "jural relations" between people high-lighted the possibility of beginning legal analysis with a focus on duties, rather than on rights, and of viewing laws as granting privileges that do not necessarily ripen into rights. Duncan Kennedy & Frank Michelman, Are Property and Contract Efficient?, 8 HOFSTRA L. REV. 711, 752-53 (1980).

(29) See, e.g., Michelman, supra note 21, at 305-07 (noting concepts of liberty in the formation of property law).

(30) See A. Dan Tarlock, Local Government Protection of Biodiversity: What is its Niche? 60 U. CHI. L. REV. 555, 588 (1993) (observing that neither the natural law nor the positivist theory of property rights has been fully accepted in American property law).

(31) Balancing guiding principles in an attempt to discern community standards of reasonableness is not as logical a process as a geometric proof. The principles do not determine the rules, they merely guide the process by which rules are created, interpreted, and applied, subject to the considerations identified by Justice Holmes. See generally HOLMES, supra note 1.

(32) The neo-Benthamite approach uses principles influenced by community standards of reasonableness to shape property rules, while the neo-Lockean approach relies much more on principles influenced by the felt necessities, politics, intuitions, and prejudices of rule makers.

(33) See, e.g., Robert C. Ellickson, Alternatives to Zoning: Covenants, Nuisance Rules, and Fines as Land Use Controls, 40 U. CHI. L. REV. 681, 779-81 (1973) (advocating more decentralized methods of land use controls).

(34) In this sentence, I assume that the rest of society already would support the proposed use, unless the more immediately at-risk neighbor objects.

(35) Economists assume that the parties will act rationally to maximize their own utility and that the exchange will be a net gain to society.

(36) Resolutions of many land use conflicts have the potential to affect future generations of people who will live in the vicinity of the land, but future generations cannot be present in the negotiations to resolve the conflict, raising issues of intergenerational equity. When use of a resource has the potential to affect future generations of people, the selection of a nuclear waste disposal site for example, necessitates that future generations almost always are left out of the negotiating process. Therefore, the negotiations will almost always will shift negative externalities onto future generations.

(37) See supra note 5 (discussing utility maximization).

(38) See generally Daniel A. Farber & Paul A. Hemmersbaugh, The Shadow of the Future: Discount Rates, Later Generations, and the Environment, 46 VAND. L. REV. 267 (1993) (discussing how current federal discount rates affect future generations).

(39) Ronald Coase postulates that, assuming a frictionless market, the parties should come to the same negotiated result, regardless of what the default rule says. Ronald H. Coase, The Problem of Social Cost, 3 J.L. & ECON. 1, 8 (1960). Information and negotiation usually cost something, though, so Coase's frictionless market is mostly myth. Id. at 15; EPSTEIN,

(40) See infra notes 146-51 and accompanying text.

(41) The Supreme Court's most recent treatment of standing in an environmental case is found in Bennett v. Spear, 117 S. Ct. 1154 (1997). Justice Scalia, writing for a unanimous Court, explained that "[t]he question of standing `involves both constitutional limitations on federal court jurisdiction and prudential limitations upon its exercise.'" Id. at 1161 (quoting Warth v. Seldin, 422 U.S. 490, 498 (1975)). The case and controversy requirements from Article III of the United States Constitution establish the "irreducible constitutional minimum" for standing, but federal courts also adhere "to a set of prudential principles that bear on the question of standing" by imposing "limits on the exercise of federal jurisdiction," such as the "zone of interests" doctrine. Bennett, 117 S. Ct. at 1161 (quoting Allen v. Wright, 468 U.S. 737, 751 (1984)). The judicially created prudential principles are subject to being modified by Congress. In Bennett, the Court held that the citizen-suit provision of the Endangered Species Act was just such a modification of the zone-of-interests doctrine. Id. at 1169. In reaching this conclusion, Justice Scalia noted that "the environment [is] a matter in which it is common to think all persons have an interest." Id. at 1162.

(42) Some neighbors, called "free riders" by economists, may choose to not participate in litigation, hoping to benefit from the efforts of the neighbors who do try litigation, without having to contribute to the expense. RICHARD B. STEWART & JAMES E. KRIER, ENVIRONMENTAL LAW AND POLICY 107 (1978).

(43) See, e.g., Justice Douglas' dissenting opinion in Sierra Club v. Morton, 405 U.S. 727, 741 (1972) (Douglas, J., dissenting) (suggesting that "environmental issues [should] be litigated ... in the name of the inanimate object about to be despoiled"). For his dissent, Justice Douglas relied upon arguments first made by Christopher D. Stone in Should Trees Have Standing? Toward Legal Rights for Natural Objects, 45 S. CAL. L. REV. 450 (1972). The primary disadvantage of standing requirements in environmental cases is that they deny the interdependency relationships that connect all things to all other things; i.e., they deny the importance of the first law of ecology.

(44) Justice William O. Douglas noted that the doctrine of stare decisis would become counterproductive if a judge let others "long dead and unaware of the problems of the age in which he lives, do his thinking for him." William O. Douglas, Stare Decisis, 49 COLUM. L. REV. 735, 736 (1949).

(45) I am not arguing against adherence to stare decisis and use of precedent. I merely wish to point out that courts need to be conscious of how the use of precedent affects the balancing function of property law.

(46) HOLMES, supra note 1, at 1.

(47) See, e.g., Michelman, supra note 21 (discussing property law and judicial conservatism); Lazarus, supra note 26, at 1424-31 (commenting upon the role of conservative Supreme Court Justices in the Lucas decision); Michael C. Blumm, The End of Environmental Law? Libertarian Property, Natural Law, and the Just Compensation Clause in the Federal Circuit, 25 ENVTL. L. 171, 192-98 (1995) (noting the role of judicial activism and libertarian views in the takings context); Leslie Bender, The Takings Clause: Principles or Politics?, 34 BUFF. L. REV. 735, 769-76 (1985) (examining early judicial attitudes concerning takings analysis).

(48) See, e.g., City of Berkeley v. Superior Court of Alameda County, 606 P.2d 362, 372 (Cal. 1980) ("Thus, judicial decisions affecting the business interests of the country should not be disturbed except for the most cogent reasons, as where the evils of the principle laid down will be more injurious to the community than can possibly result from a change, or upon the clearest grounds of error.").

(49) This substitution of the judge's standards for the community's standards is known as judicial activism if the commentator disagrees with the judge's politics, or as an example of jurisprudence the way it ought to be practiced if the commentator agrees with the judge's politics. By no means do I intend to imply that all judges indulge in forcing their own prejudices upon society in the guise of community standards of reasonableness. I intend only to call attention again to Justice Holmes's point that the opportunity exists to do so, within some loose limits.

(50) Including everyone's voice through grassroots political participation is one way to prevent problems documented by the environmental justice movement. Grassroots participation in public life is one of the four pillars of green politics upon which I constructed a theory of green property in Green Alternative, supra note 8, at 357-63.

(51) See HOLMES, supra note 1, at 1.

(52) Id.

(53) For a thorough sampling of public choice theory scholarship, see MAXWELL L. STEARNS, PUBLIC CHOICE and PUBLIC LAW: READING and COMMENTARY (1997); see also David A. Skeel, Jr., Public Choice and the Future of Public-Choice-Influenced Legal Scholarship, 50 VAND. L. REV. 647, 659-67 (1997) (reviewing the Stearns book and also providing a very useful introduction to public choice theory).

(54) Skeel, supra note 53, at 651.

(55) See, e.g., Michael C. Blumm, Public Choice Theory and the Public Lands: Why "Multiple Use" Failed, 18 HARV. ENVTL. L. REV. 405, 415-16 (1994) (discussing public choice theory).

(56) MISS. CODE ANN. [sections] 49-33-3 (1995).

(57) See supra note 20 for references to articles about state takings legislation.

(58) The protection of agricultural uses was created in 1994, when the first bill was introduced. 1994 MISS. LAWS CH. 647CS.B.2464. The protection of forestry uses was added in 1995. 1995 MISS. LAWS CH. 379CH.B. 1541. Louisiana is the only other state with a private property rights protection statute that applies only to agricultural and forestry uses. LA. REV. STAT. ANN. [subsections] 3:3601-624 (1995). One pair of commentators suggests that the narrow coverage of the Mississippi and Louisiana statutes might raise an equal protection issue if challenged in court. Vickory & Diskin, supra note 20, at 591 n. 151.

(59) When the legislation first was introduced in the Mississippi Senate, I asked its principal sponsor which of his constituents had requested the legislation. After much hesitation, he would tell me only that "some very substantial groups of people with an interest in private property rights" were behind the legislation. Those substantial groups of people turned out to be leaders of the Mississippi Farm Bureau Federation. Telephone Interview with Senator Jim Bean (R) of Hattiesburg, Mississippi (Jan. 20, 1994.)

(60) The legislators in this case did not reconsider the balance of individual and community interests in light of new information; they simply estimated the risk of not being reelected if they did not support the private property rights legislation. In making this type of calculation, a legislator must assume that a constituent who has not bothered to call with an opinion on the instant issue will be indifferent to whatever position the legislator decides to take on the issue--the "silent majority" will not be a threat to reelection regardless of how the legislator votes on the instant issue. Id.

(61) Another example of the role played by special interest groups in consideration of private property rights protection legislation by the Mississippi legislature involved a broader, generally applicable "compensate-when-you-regulate" proposal. When opponents pointed out that the bill was so broad that it might require communities to compensate owners of pornographic bookstores when local zoning regulations forbid such businesses to operate near schools, churches, or neighborhoods, the state's religious denominations, including the politically powerful Mississippi Baptist Convention, sent their lobbyists to the capitol to make sure that the proposal was defeated. It was voted down by the same legislators who later approved similar legislation to protect agricultural and forestry practices.

(62) Vickory & Diskin, supra note 20, at 596-97.

(63) Id. at 597-98.

(64) The Green emphasis on widespread grassroots participation in public life (in more than just occasional "Republican moments") is meant partly to neutralize and marginalize the influence of special interest groups, while also legitimating the outcome of the political process by encouraging as many people as possible to participate and share their perspectives on how proposed rules might affect them. See Green Alternative, supra note 8, at 35763 (examining grassroots political participation as the "Third Green Pillar"). In effect, Green emphasis on grassroots participation is a response to problems of parties being left out of the contract-based process of negotiating rules, the common law-based litigation process with its standing barriers, and the marginalization of individual voters when special interest groups exercise political influence.

(65) Vickory & Diskin, supra note 20, at 596-98.

(66) 40 C.F.R. [subsections] 280.200-.230 (1997).

(67) See, e.g., Administrative Procedure Act, 5 U.S.C. [sections] 553(c) (1994) (providing for a notice and comment period in the federal rule making context).

(68) See, e.g., Chevron v. NRDC, 467 U.S. 837, 842-45 (1984) (discussing why courts defer to the expertise of agency employees).

(69) Chief Judge Boyce F. Martin, Jr. of the Sixth Circuit sharply criticized the United States Forest Service's approach to the forest management planning process in Sierra Club v. Thomas, 105 F.3d 248 (6th Cir. 1997). In the course of invalidating the Forest Service's proposed management plan for the Wayne National Forest in Ohio, Judge Martin explained that:

[b]y arbitrarily undervaluing the recreational value of

wilderness, the Forest Service created a very distorted picture

of the Wayne National Forest. Based on false premises such as

these, the Forest Service improperly concluded that clearcutting was

necessary.

It is not surprising that the Forest Service came to this

conclusion. Created, in part, to ensure a reliable timber supply,

the Forest Service has a history of preferring timber production

to other uses. Rather than being a neutral process which determines

how the national forests can best meet the needs of the American

people, forest planning, as practiced by the Forest Service, is

a political process replete with opportunities for the intrusion

of bias and abuse. Because national forests are located

near rural communities, foresters make management decisions to

support perceived needs in the communities. By sharing timber

proceeds with those communities, the Forest Service strengthens

the link between timber sales and the livelihoods of local

constituencies.... The resulting dependency of these communities

on timber production causes over-harvesting and destructive

harvesting methods. The relationship of the Forest Service to

the timber industry also constrains the Forest Service's planning

freedom. Rural constituencies reliant on timber sale revenues

may provoke politicians to place pressure on the Forest Service

to sustain that revenue. Consequently, the Forest Service becomes

trapped: cutting off timber sales would cause loss of employment

and revenue in local communities but continued timber sales

risk over-harvesting and below-cost sales.

Id. at 251 (citations omitted).

(70) See, e.g., James E. Krier & Clayton P. Gillette, The Un-Easy Case for Technological Optimism, 84 MICH. L. REV. 405, 422-27 (1985) (explaining the capture phenomenon by observing that large, loosely organized groups of citizens seeking diffuse collective benefits will be less likely to influence legislators than small, tightly controlled private interest groups seeking specific benefits).

(71) U.S. CONST. amend. V.

(72) U.S. CONST. amend. XIV [sections] 1.

(73) For example the MISS. CONST. of 1890, art. III, [sections] 17 guards against governmental "damage" to private property, in addition to guarding against takings.

(74) See supra notes 40-49 and accompanying text.

(75) ELY, supra note 25, at 43-44; William A. Fischel, Introduction: Utilitarian Balancing and Formalism in Takings, 88 COLUM. L. REV. 1581, 1582 (1988).

(76) ROSCOE POUND, AN INTRODUCTION TO THE PHILOSOPHY OF LAW 118 (1922).

(77) HOLMES, supra note 1, at 1. Concerns about tyranny of the majority in the context of a takings claim should not cause a court to give any guiding principle any greater weight than in any other situation, although the court's attention certainly will be drawn to protecting the political freedom of the resource owner.

(78) This would be December, 1791, in the case of the Fifth Amendment to the Constitution of the United States. See Douglas W. Kmiec, The Original Understanding of the Taking Clause is Neither Weak Nor Obtuse, 88 COLUM. L. REV. 1630, 1638-40 (1988) (contrasting fixed and malleable concepts of property); William Michael Treanor, The Original Understanding of the Takings Clause and the Political Process, 95 COLUM. L. REV. 782, 818-25 (1995) (discussing the original intent of the Takings Clause).

(79) See MICHAEL KAMMEN, SPHERES OF LIBERTY: CHANGING PERCEPTIONS OF LIBERTY IN AMERICAN CULTURE 23-29 (1986) (reviewing early concepts of life, liberty, and property in early America) [hereinafter SPHERES or LIBERTY]; MICHAEL KAMMEN, SOVEREIGNTY AND LIBERTY: CONSTITUTIONAL DISCOURSE IN AMERICAN CULTURE 189-217 (1988) (examining conflicting interpretations of our Founder's intentions) [hereinafter SOVEREIGNTY AND LIBERTY].

(80) See, e.g., ELY, supra note at 25, at 6 (discussing fluid property concepts in the context of the ante-bellum south); Freyfogle, The Construction of Ownership, supra note 27, at 17778 (noting early American concepts of property and how it is a cultural institution and a human creation); Francis S. Philbrick, Changing Conceptions of Property in Law, 86 U. PA. L. REV. 691, 696 (1938) (examining changing concepts of property in English history).

(81) "Property rights serve human values. They are recognized to that end, and are limited by it." State v. Shack, 277 A. 2d 369, 372 (N.J. 1971).

(82) HOLMES, supra note 1, at 1.

(83) 21 U.S. (8 Wheat.) 543 (1823).

(84) Id. at 543-44, 558-59.

(85) Id. at 543-44, 558-60.

(86) Id. at 561.

(87) Id. at 550-53, 555-58. Since the Indian lands were communally owned, instead of having smaller parcels owned by individual tribal members, the tribal leaders were the only people with authority to make such an agreement on behalf of their respective tribes. Their agreements bound all members of their respective tribes, as far as the Indians were concerned. Id. at 549-50. For another example of an American Indian perspective on communal ownership of land, see the petition of the Moqui women to the Bureau of Indian Affairs, as reproduced in Joan West & Wynell Burroughs Schamel, Those Waterless Sandy Valleys: Petition of the Moqui Women, 5 MAGAZINE OF HISTORY 46 (1991).

(88) Johnson, 21 U.S. at 543.

(89) Id. at 562.

(90) In a case decided shortly after Johnson, a legislative act was needed to correct a defect in a conveyance from the executrix of an estate. Wilkinson v. Lyland, 27 U.S. (2 Pet.) 627 (1829). The Court observed:

[t]hat government can scarcely be deemed to be free, where the rights of

property are left solely dependent upon the will of a legislative body,

without any restraint. The fundamental maxims of a free government seem to

require, that the rights of personal liberty and private property should be

held sacred.

Id. at 657.

(91) Johnson, 21 U.S. at 572.

(92) The Court's awareness of the implications of upsetting the land title system is evident in the following language from its opinion:

As the fight of society, to prescribe those rules by which property may be

acquired and preserved is not, and cannot be drawn into question; as the

title to lands, especially, is, and must be admitted to depend entirely on

the law of the nation in which they lie; it will be necessary, iq. pursing

this inquiry, to examine, not simply those principles of abstract justice,

which the Creator of all things has impressed on the mind of his creature

man, and which are admitted to regulate, in a great degree, the fights of

civilized nations, whose perfect independence is acknowledged; but those

principles also which our own government has adopted in the particular

case, and given us as the rule for our decision.

Johnson, 21 U.S. at 572.

(93) U.S. CONST. art. I, [sections] 10. Since the agreements in question in Johnson pre-dated the adoption of the United States Constitution, the Court could not simply use the exclusive treaty power of the Federal government to invalidate Johnson's claims.

(94) Johnson, 21 U.S. at 605. Of course, the Court had to explain the outcome in different terms. Chief Justice John Marshall provided a tortured rationale based upon the doctrine of conquest. Id. at 572-92.

(95) See infra notes 204-17 and accompanying text.

(96) E.g., Joseph D. Schulman, M.D., Biological Background, to Property Issues Involving Human Gametes and Embryos (outline prepared by Dr. Schulman, Director of the Genetics and In Vitro Fertilization Institute in Fairfax, Virginia and a Professor of Human Genetics at the Medical College of Virginia, for the June 1997 Conference on Property sponsored by the Property Law Section of the Association of American Law Schools). For insightful consideration of many of the ethical and moral issues raised by the possibilities of current reproductive technology, see Rick Weiss, Beyond Test-Tube Babies, THE WASHINGTON POST NAT'L WEEKLY EDITION, Feb. 16, 1998, at 6.

(97) Joe Williams, Farmers Worry About Cloning: Some Fear Value of Milk as Commodity Will Decline if Production is Increased, MILWAUKEE JOURNAL-SENTINEL, Aug. 10, 1997, 'at A3 (describing the reaction of people at the Wisconsin State Fair to recent news from American Breeders' Service in Dane County, Wisconsin that the company had perfected a procedure for cloning multiple copies of a Holstein bull named "Gene").

(98) See, e.g., National Basketball Ass'n v. Motorola, Inc., 105 F.3d 841, 843 (2d Cir. 1997) (finding no improper misappropriation of information by transmission of "real-time" basketball game scores via sports pagers).

(99) Mark Curriden, No Benefits for "Miracle" Baby, 81 A.B.A. J. 18 (Mar. 1995); Mark Curriden, A Dad for Judith Hart, 81 A.B.A. J. 30 (Aug. 19951).

(100) Bogle Farms, Inc. v. Baca, 925 P.2d 1184, 1192 (N.M. 1996) (citations omitted).

(101) In a lien theory state, the security interest only gives the lender a lien against the title to the land, but does not give the lender either legal or equitable title to the land. The mechanism used to create such a lien is a mortgage. In a title theory state, the security interest is created by a deed of trust, which gives the trustee legal title to the land, subject to the terms of the deed of trust, and leaves the borrower with equitable title. The terms of the deed of trust allow the lender to direct a sale of the title by the trustee if the borrower defaults on loan payments. Michael L. Cook & Lawerence V. Gelber, Emergency Use of Cash Collateral in Reorganization Cases, 752 P.L.I./COMM. 569, 578 (1997).

(102) For more on aggregate social utility and social welfare, see infra notes 119-22 and accompanying text.

(103) LAWRENCE M. FRIEDMAN, A HISTORY OF AMERICAN LAW 429-30 (2d ed. 19851).

(104) Clark v. Farrington, 11 Wis. 321, 335 (1860); FRIEDMAN, supra note 103, at: 430; RICHARD N. CURRENT, THE HISTORY OF WISCONSIN, VOL. II: THe CIVIL WAR ERA, 1848-1873, at 244 (1976).

(105) CURRENT, supra note 104, at 242-43.

(106) Id. at 243-44.

(107) Id. at 248-49.

(108) Id. at 249; FRIEDMAN, supra note 103, at 430.

(109) CURRENT, supra note 104, at 249.

(110) Maxton Builders v. Lo Galbo, 502 N.E.2d 184, 188 (N.Y. 1986) (citing Matter of Eckart's Estate, 348 N.E.2d 905, 908 (N.Y. 1976)) (involving a long-settled rule concerning remedies for default by a purchaser under a real estate purchase contract) (emphasis added).

(111) Abbott v. City of Los Angeles, 326 P.2d 484, 494 (Cal. 1958) (emphasis added).

(112) See infra notes 119-22 and accompanying text for a brief discussion of rational maximizing behavior in property transactions.

(113) 505 U.S. 1003, 1015 (1992); see infra notes 128-37 and accompanying text (discussing Lucas).

(114) SPHERES OF LIBERTY, supra note 79, at 17-29.

(115) Charles Reich resurrected the fear of feudalism in relation to dependence upon government entitlement programs in Charles A. Reich, The New Property, 73 YALE L.J. 733, 769-70 (1964). Others have raised feudalism arguments in opposition to environmental laws, comparing the federal government to a sovereign dispensing sustenance in the form of permission to use land for only what the government allows and requiring political allegiance in return. See, e.g., John McClaughry, The New Feudalism, 5 ENVTL. L. 675, 677 (1975) (comparing governmental land planning regimes to socialism, communism, and feudalism); Bruce Yandle, Escaping Environmental Feudalism, 15 HARV. J.L. & PROB. POL'Y 517, 517-18 (1992) (noting that U.S. environmental policy is a modern day form of feudalism).

(116) This view of the importance of property ownership is closely tied to the libertarian strain of classical liberalism. Green Alternative, supra note 8, at 310-12; cf. Carol M. Rose, The Guardian of Every Other Right: A Constitutional History of Property Rights, 10 CONST, COMMENTARY 238, 240-42 (1993) (reviewing ELY, supra note 25).

(117) Historian James McPherson explains the rationale behind linking property ownership and voting rights as follows:

An essential component of liberty under a republican government, as Thomas

Jefferson and his followers viewed it, was independence. The opposite of

independence, of course, was dependence. A man who depended on another for

his living was not truly free--he was subject to the authority, to the orders

and manipulation, of the man who paid his wages and who therefore dictated

the terms of his existence. Independence--and therefore liberty--could be

achieved only by the ownership of productive property: a farm, a business,

or a trade in which the skilled artisan owned his tools and was paid directly

by the purchaser for the fruits of his labor rather than paid wages for his

work. Only a society of property-owning farmers, artisans, tradesmen, and

professionals could sustain a republican government. The growth of a large

class without property would eventually bring down republican self-government

and erect a despotism in its place. That is why Jefferson feared the growth

of a wage-earning propertyless class as "sores on the body politic." That is

why most state constitutions initially required the ownership of property,

or at least the paying of taxes, as a qualification for voting. Women were

dependent; children were dependent; slaves were dependent; propertyless

laborers were dependent. Therefore they were subject to the authority of

their husbands, fathers, masters, or employers; that is why they were defined

out of the body politic o f freemen who owned property and enjoyed the

civil and political liberty of self-government in a republic.

JAMES M. MCPHERSON, ABRAHAM LINCOLN AND SECOND AMERICAN REVOLUTION 48-49 (1990) (emphasis added).

(118) Civil Rights Cases, 109 U.S. 3, 22 (1883) (Harlan, J., dissenting).

(119) Roscoe Pound, The Law of Property and Recent Juristic Thought, 25 A.B.A. J. 993, 997 (1939).

(120) For these purposes, I am defining utility as whatever makes the individual happy. This variation of the individual liberty principle is closely linked to the utilitarian strain of classical liberalism. See Green Alternative, supra note 8, at 312-14 (discussing the utilitarian strain of classical liberal property theory).

(121) The mathematical accuracy of measuring aggregate social utility by adding the happiness generated from each market transaction is undermined by the ripple effects that each transaction will have on other people who are not parties to the transaction. These ripple effects, or externalities, may be either positive or negative with respect to whether they add to or subtract from aggregate social utility. Without an accurate measure of the value of externalities, we have no good way to include them in the accounting by which we calculate aggregate social utility. Thus, we cannot say for certain that maximum individual control over resource use will lead to the maximum possible aggregate social utility, because the disutility generated by negative externalities may outweigh the utility gained from unlimited resource use. See PAUL A. SAMUELSON, ECONOMICS 453-54 (1970) (examining external economies and diseconomies); ALAN RANDALL, RESOURCE ECONOMICS: AN ECONOMIC APPROACH TO NATURAL RESOURCE ENVIRONMENTAL POLICY 132-33, 182-94 (discussing maximum social well-being principles and externalities).

(122) The individual liberty principle also might protect other individual freedoms, such as the freedom to define one's identity in part by reference to property that is important to her sense of self. Margaret Radin refers to this concept as the personhood perspective on property ownership. Margaret Jane Radin, Property and Personhood, 34 STAN. L. REV. 957 (1982). Radin's personhood perspective is a variation of other perspectives that emphasize the importance of property ownership in the development of human personality. Green Alternative, supra note 8, at 314-16. However, the U.S. Supreme Court has rejected this perspective on the connection between property ownership and individual liberty, so, in keeping with my positivist approach, I will not include this personality or personhood perspective within the individual interests protected by the individual liberty principle that helps guide the balancing process. See United States v. 564.54 Acres of Land, 441 U.S. 506, 511 (1979) (noting that the Supreme Court has held that fair market value does not include the special value of property arising to an owner due to that owner's particular subjective needs and attitudes).

(123) See, for example, Chief Justice Rehnquist's comments in a recent exactions case: "We see no reason why the Takings Clause of the Fifth Amendment, as much a part of the Bill of Rights as the First Amendment or the FoUrth Amendment, should be relegated to the status of a poor relation in these comparable circumstances." Dolan v. City of Tigard, 512 U.S. 374, 392 (1994).

(124) Id.

(125) Id. at 391.

(126) Id.

(127) Id. at 395-96.

(128) 505 U.S. 1003 (1992).

(129) Id. at 1017.

(130) See id. at 1029. Justice Scalia's reference to background principles of property law implicitly acknowledges a positivist approach to property rights. His formulation of the exception to the "total diminution in value rule" does not fit with a natural law approach to defining property rights.

(131) Id. at 1016-17.

(132) See Margaret Jane Radin, The Liberal Conception of Property: Cross Currents in the Jurisprudence of Takings, 88 COLUM. L. REV. 1667, 1676 (1988) (describing the idea of conceptual severance).

(133) Blumm, supra note 47, at 192-98.

(134) Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 413 (1922).

(135) 438 U.S. 104, 130-31 (1978).

(136) 508 U.S. 602, 643-44 (1993).

(137) See Bowles v. United States, 31 Fed. Cl. 37, 41 n.4 (1994) (noting that the Supreme Court's approach in Lucas would seem to disapprove of including a property owner's other land holdings when calculating the extent of the relevant diminution of value).

(138) See Roberts v. Rhodes, 643 P.2d 116, 117-18 (Kan. 1982) (applying a statutory presumption to conclude that two conveyances gave a school district fee simple absolute title to land, even though the conveyances each included a statement that the grants were made for school purposes, largely because the grantor had not clearly stated what was to happen to the land if it was not used for school purposes).

(139) However, the grantor does not have absolute freedom to limit a conveyance of title in whatever manner he chooses. See infra notes 143-51 and accompanying text for a discussion of what happens when, for example, the individual liberty principle must be harmonized with the reliability and flexibility principles in the context of creation of future interests.

(140) See Michalski v. Michalski, 142 A.2d 645, 649-52 (N.J. Super. Ct. App. Div. 1958) (considering whether to enforce an agreement between tenants in common by which they waived their rights to partition, and deciding to allow partition only because enforcement of the waiver no longer would serve the original purpose of the waiver).

(141) See William K. Jones, Private Revision of Public Standards: Exculpatory Agreements in Leases, 63 N.Y.U.L. REV. 717 (1988) (discussing the economic efficiency of, and various limitations on, exculpatory clauses in commercial and residential leases).

(142) See, e.g., Estate of Richter v. Varga, 16 Cal. Rptr. 2d 108, 111 (1993) (noting that one of the purposes of no contest clauses in testamentary proceedings is to give effect to the will of the donor).

(143) The Rule in Shelley's Case discourages creation of a contingent remainder to the heirs of a life tenant, treating such a remainder as belonging to the life tenant. ROGER A. CANNINGHAM ET AL., THE LAW OF REAL PROPERTY [sections] 3.16 (1984). The doctrine of worthier title discourages creation of a contingent remainder or a shifting use for an heir of the grantor, treating such an attempt as effectively being a reservation of a reversion interest by the grantor that nullifies the "heir's" interest. Id. [sections] 3.15.

(144) See, e.g., Jones v. Stone, 279 S.E.2d 13, 16 (N.C. Ct. App. 1981) (quoting Benton v. Baucom, 135 S.E. 629, 630 (N.C. 1926)) ("Today, the rule [in Shelley's Case] serves quite a different.., purpose, in that it prevents the tying up of real estate during the life of the first taker, facilitates its alienation a generation earlier, and at the same time, subjects it to the payment of the debts of the ancestor.").

(145) Abo Petroleum Corp. v. Amstutz, 600 P.2d 278, 280 (N.M. 1979) (quoting RESTATEMENT OF PROPERTY [sections] 240 cmt. d (1936) in refusing to adopt the doctrine of destructibility of contingent remainders in New Mexico).

(146) "No interest is good unless it must vest, if at all, not later than twenty-one years after some life in being at the creation of the interest." JOHN C. GRAY, THE RULE AGAINST PERPETUITIES [sections] 201 (4th ed. 1942). The RESTATEMENT (SECOND) OF PROPERTY, DONATIVE TRANSFERS describes the Rule Against Perpetuities as an example of a social restriction that curtails "the freedom of individuals imposed ostensibly for the general benefit." RESTATEMENT (SECOND) OF PROPERTY, DONATIVE TRANSFERS, Introductory Note to Division I, at 3 (1983).

(147) See, e.g., Symphony Space, Inc. v. Pergola Properties, Inc., 646 N.Y.S.2d 641, 645 (N.Y. 1996) (stating the basis and legal rules surrounding the Rule Against Perpetuities).

(148) Barton v. Thaw, 92 A. 312, 316 (Pa. 1914) (invalidating an option to purchase due to the possibility that it could be exercised beyond the perpetuities period).

(149) According to the "wait and see" version of the Rule Against Perpetuities, if the remote interest actually vests before the perpetuities period expires, then the interest is valid. If the remote interest still has not vested by the time the perpetuities period expires, then the interest finally can be declared void. Under the traditional rule, an interest is judged as void or valid as soon as it is created, without regard to what happens later. Thus, the "wait and see" approach might validate more interests than the traditional approach, but at the cost of not knowing whether an interest will be void or valid until it either vests or the perpetuities period expires.

The Uniform Statutory Rule Against Perpetuities (USRAP) gives a remote interest two chances to be valid. First, if the interest vests within ninety years after creation of the interest, then it is valid. This feature of USRAP sometimes is referred to as "wait and see for ninety years." If the interest has not vested by the end of the ninety-year period, then a court may reform the contingent interest to accomplish the donor's intent as much as possible while saving the interest from being destroyed by remoteness of vesting. USRAP, 8B U.L.A. 333 (1993).

(150) 646 N.Y.S.2d at 650 (using the traditional version of the Rule Against Perpetuities, as codified in New York, to invalidate an option to purchase and refusing to adopt a "wait and see" approach).

(151) Id. at 808 ("Its incorporation into [the rule], in any event, must be accomplished by the Legislature, not the courts.").

(152) EPSTEIN, supra note 25, at 5; see also Bernard H. Siegan, Constitutional Protection of Property and Economic Rights, 29 SAN DIEGO L. REV. 161, 169 (1992) (explaining that a regulation that restricts economic activity for the sake of securing public health and safety, prohibiting noxious uses, and maintaining law and order in real emergencies is justified in a market economy).

(153) See, e.g., Commonwealth v. Alger, 61 Mass. (1 Cush.) 53, 85 (1851) ("All property in this commonwealth... is... held subject to those general regulations which are necessary to the common good and general welfare.").

(154) See Hadachek v. Sebastian, 239 U.S. 394, 411-14 (1915) (holding valid an ordinance prohibiting the manufacturing of bricks within select areas of Los Angeles); City of Cleburne v. Cleburne Living Centers, Inc., 473 U.S. 432, 44243 (1985) (illustrating that treating mentally retarded citizens "under the law is a difficult and often a technical matter, very much a task for legislators guided by qualified professionals and not by the perhaps ill-informed opinions of the judiciary").

(155) Lawton v. Steele, 152 U.S. 133, 137 (1894); see Hadachek, 239 U.S. at 446 (to avoid a conclusion of an unconstitutional taking, the statute or regulation in question must be rationally related to a legitimate governmental purpose).

(156) Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1026, 1031-32 (1992).

(157) See supra notes 124-27 and accompanying text.

(158) Lucas, 505 U.S. at 1024.

(159) HOLMES, supra note 1, at 1.

(160) Id.

(161) Morgan v. High Penn Oil Co., 77 S.E.2d 682, 689 (N.C. 1953).

(162) Spur Industries, Inc. v. Del E. Webb Development Co., 494 P.2d 700, 705 (Ariz. 1972).

(163) W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS [sections] 86, at 616-17 (5th ed. 1984).

(164) Sax, supra note 20, at 6.

(165) Ronald Coase demonstrated in 1960 that the answer to the question of who is interfering with whom depends on one's point of view in a property dispute. All land use conflicts are reciprocal. Coase, supra note 39, at 2.

(166) A similar argument could be made concerning the "reciprocity of advantage" that results when a police power regulation protects a property owner to the same extent that the regulation protects her neighbors. However, many courts now scoff at the reciprocity of advantage argument in a police power case, while taking it seriously in a nuisance case.

(167) See Mugler v. Kansas, 123 U.S. 623 (1887) (prohibiting production of alcoholic beverages); Hadacheck v. Sebastian, 239 U.S. 394 (1915) (prohibiting operation of a brick factory in a residential area); Miller v. Schoene, 276 U.S. 272 (1928) (allowing diseased trees to be destroyed by the state to prevent spread of an infectious disease that threatened the area's apple crop); Goldblatt v. Hempstead, 369 U.S. 590 (1962) (preventing continued operation of a quarry in a residential area).

(168) See Louise A. Halper, Why the Nuisance Knot Can't Undo the Takings Muddle, 28 IND. L. REV. 329, 336-38 (1995) (examining the role of nuisance law in the Lucas decision).

(169) Lucas v. South Carolina Coastal Council, 505 U.S. 1103, 1029 (1991).

(170) See Oliver A. Houck, Why Do We Protect Endangered Species, and What Does That Say About Whether Restrictions on Private Property to Protect Them Constitute "Takings"?, 80 IOWA L. REV. 297, 326-27 (1995) (noting that state nuisance law doctrines still provide a basis for attacking noxious activities, even when, in some circumstances, those activities are permitted by regulatory controls).

(171) Lucas, 505 U.S. at 1027 n. 14.

(172) Sax, supra note 20, at 4-7 (criticizing reliance on traditional definitions of a nuisance as being too inflexible and inconsistent with the U.S. Supreme Court's takings jurisprudence).

(173) ELY, supra note 25, at 150.

(174) State v. Shack, 277 A. 2d 369 (N.J. 1971) (holding that a farmer was not allowed to exclude a social worker and a legal aid attorney).

(175) Pruneyard Shopping Center v. Robins, 447 U.S. 74 (1980) (finding that the shopping center owner could not claim a taking based on a state court's requirement that it allow free speech activities at the shopping center premises).

(176) Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968) (holding that a racially restrictive covenant was not enforceable).

(177) Swanner v. Anchorage Equal Rights Comm'n, 874 P.2d 274, 285 (Alaska 1994) (holding that such discrimination is not permitted); Smith v. Fair Employment and Hous. Comm'n, 913 P.2d 909, 918 (Cal. 1996) (holding that such discrimination is not permitted); cf. State by Cooper v. French, 460 N.W.2d 2, 8 (Minn. 1990) (holding that an expectation of being able to "cohabit" is not a right protected by state law in Minnesota).

(178) Lewis v. Searles, 452 S.W.2d 153, 155 (Mo. 1970). The general idea of the rule is that marriage is a stabilizing, positive moral influence on society, so private contracts that provide a disincentive to marry should be discouraged.

(179) Id.

(180) See Winget v. Gay, 28 S.W.2d 999, 1000-01 (Mo. 1930) (holding that a bequest conditioned partly upon the devisee remaining single was not obnoxious to the rule against restraints on marriage).

(181) Id. Note however that the right to marry has been explicitly held by the Supreme Court to be a fundamental right. Zablocki v. Redhail, 434 U.S. 374, 384, 386 (1978).

(182) 327 N.W.2d 559 (Mich. Ct. App. 1982).

(183) Id. at 562.

(184) Id. at 563 (citations omitted).

(185) But see Mark Cordes, Property and the First Amendment, 31 U. RICHMOND L. REV. 1 (1997) (concluding that protection of more traditional ideas of property ownership often has won out over protection of free speech rights in the Burger and Rehnquist court eras).

(186) 473 U.S. 432 (1985).

(187) Id. at 447-48.

(188) Id. at 449-50. The rational basis test was appropriate for scrutinizing discrimination against developmentally disabled people when Cleburne was decided in 1985. Subsequent passage of the Fair Housing Act amendments by Congress in 1988 defined developmental disability as a form of "handicap," so discrimination on the basis of developmental disability now is subject to a higher level of scrutiny. 42 U.S.C. [sections] 3601 (1994).

(189) 245 U.S. 60 (1917).

(190) Id. at 70-71.

(191) Id. at 73-74.

(192) Id. at 69-70.

(193) Id. at 70.

(194) Id.

(195) 163 U.S. 537 (1896) (holding separate but equal travel accommodations were constitutional).

(196) 211 U.S. 45 (1908) (holding separate but equal college facilities were constitutional).

(197) 42 U.S.C. [sections] 1982 (1994).

(198) Buchanan, 245 U.S. at 81-82.

(199) 334 U.S. 1 (1948).

(200) 392 U.S. 409 (1968).

(201) Shelley, 334 U.S. at 19-23.

(202) Jones, 392 U.S. at 443-44.

(203) HOLMES, supra note 1, at 1.

(204) 277 A.2d 369, 372 (N.J. 1971). For more on the relationship between property law and social values, see Philbrick, supra note 80, at 694-95.

(205) See supra notes 95-99 and accompanying text.

(206) Reich, supra note 115, at 733-34.

(207) Moore v. Regents of the Univ. of California, 793 P.2d 479, 480 (Cal. 1990) (holding that the patient had no property interest in the blood samples taken from him, but providing compensation on other grounds).

(208) George M. Woodwell, Broken Eggshells, SCIENCE, NOV. 1984, at 115.

(209) JOSEPH F. RINELLA ET AL., U.S. GEOLOGICAL SURVEY, CIRCULAR No. 1090, PERSISTENCE OF THE DDT PESTICIDE IN THE YAKIMA RIVER BASIN, WASHINGTON 8-9 (1993).

(210) Woodwell, supra note 208, at 116; Frank Graham, Jr., DDT is Alive and Well, AUDUSON, NOV. 1984, at 36.

(211) Diluted concentrations of DDT have been used in pesticides since the pure form was banned in 1972. Graham, supra note 210, at 36-38. Residues of DDT and the toxic compounds left when DDT begins to decompose are still becoming concentrated in the body tissue of birds, fish, and animals (including humans) at the top of food pyramids, thereby continuing to cause health problems for those species. RINELLA ET AL., supra note 209, at 1722; Janet Raloff, DDT May Foster Breast Cancer, Study Finds, SCIENCE NEWS, Apr. 24, 1993, at 262.

(212) Javins v. First National Realty Corp., 428 F.2d 1071, 1072-73 (D.C. Cir. 1970).

(213) Jaber v. Miller, 239 S.W.2d 760, 763-64 (Ark. 1951); see also Bielski v. Schulze, 114 N.W.2d 105, 109 (Wis. 1962) (quoting similar language from Justice Holmes in a case in which the court changed the common law rule in Wisconsin concerning contribution by joint tortfeasors).

(214) State Sav.& Loan Ass'n v. Kauaian Dev. Co., 445 P.2d 109, 120 n.15 (Haw. 1968).

(215) Id. at 120.

(216) Greenfield & Co. v. Kolea, 380 A.2d 758, 760 (Pa. 1977).

(217) Abbott v. City of Los Angeles, 326 P.2d 484, 494 (Cal. 1958).

(218) We humanized nature as part of the process of extending ethical and moral imperatives to cover our relationships with "mother nature." This metaphor for nature both helped some people better appreciate the relationship between humans and the other components of the land communities within which humans live, and also alienated many people who did not see nature as anything but money with trees on it.

(219) Perhaps the most prominent of these scientists was Rachel Carson, who warned us about many of the perils of pesticide use. See RACHAEL CARSON, SILENT SPRING (1962).

(220) See Fred P. Bosselman & A. Dan Tarlock, The Influence of Ecological Science on American Law: An Introduction, 69 CHI-KENT L. REV. 847, 864-69 (1994) (providing a very useful survey of the people who brought ecological ideas and use of the scientific method to American law from the science of ecology).

(221) Judy L. Meyer, The Dance of Nature: New Concepts in Ecology, 69 CHI-KENT L. REV. 875, 877-79 (1994).

(222) Warning that "the concept of ecosystem integrity [cannot be described] in a linear, closed way," Henry Regier, James Kay, and Bruce Bandurski have compiled a "long sequence of ideas" that describe "an ecosystem with integrity." Henry A. Regier, The Notion of Natural and Cultural Integrity, in ECOLOGICAL INTEGRITY AND THE MANAGEMENT OF ECOSYSTEMS 13-16 (Stephen Woodley et al. eds., 1993).

(223) Green Alternative, supra note 8, at 331. When we define ecosystem integrity in this way, protecting ecosystem integrity raises issues of sustainability. However, an in-depth discussion of sustainability is beyond the scope of this Article. For an introduction to the topic, see Symposium, The Promise and Challenge of Ecologically Sustainable Development, 31 WILLIAMETTE L. REV. 235 (1995).

(224) Anthony W. King, Considerations of Scale and Hierarchy, in ECOLOGICAL INTEGRITY AND THE MANAGEMENT OF ECOSYSTEMS, supra note 222, at 19-45.

(225) Henry Regier argues in favor of the latter approach, noting that "[e]nergy cascading, material cycling, [and] information organizing... have only limited utility in practice," while "[p]ractically useful insight and information flows mostly from comparative empirical comprehension that is a pragmatic synthesis of holistic perception and analytical understanding ...." Regier, supra note 222, at 5-6.

(226) James J. Kay, On the Nature of Ecological Integrity: Some Closing Comments, in ECOLOGICAL INTEGRITY AND THE MANAGEMENT OF ECOSYSTEMS, supra note 222, at; 203.

(227) Id. at 202; Houck, supra note 22, at 876-77.

(228) State v. Shack, 277 A.2d 369, 372 (N.J. 1971).

(229) Walter Kuhlmann, Making the Law More Ecocentric: Responding to Leopold and Conservation Biology, 7 DUKE ENVTL. L. & POL'Y F. 133, 155 (1996). Kuhlmann asserts that "[p]eople are, for the most part, not a part of the structure or function of the ecosystems in which they live." Id. On this point, I must respectfully disagree with Kuhlmann. At least in our capacity to disturb the natural processes of biological communities, I think humans are very much a part of ecosystem function in most cases. Perhaps Kuhlmann and I simply have chosen different hierarchical organizations by which to describe ecosystems for these purposes. I favor Henry Regier's "comparative empirical" approach, although I can understand how Kuhlmann could reach his conclusion about humans and ecosystems if he uses the "energy cascading" or "material cycling" approach. See Regier, supra, note 222 and accompanying text.

(230) Compare Freyfogle's approach where he asks "[i]s it possible to take the institution of private property . . . and somehow combine it with an ecologically sound land ethic?" Freyfogle, Ethics, Community and Private Land, supra note 11, at 632. The answer is yes, as long as protection of ecological integrity is one of the guiding principles of the balancing function of property law.

(231) Walter Kuhlmann worries that accounting for humans as members of land communities may corrupt the purpose of ecosystem management and turn it into just another political tool to serve human interests, instead of ecological interests. Kuhlmann, supra note 229, at 156. Oliver Houck shares Kuhlmann's distrust of the politicization of ecosystem management. Houck, supra note 22, at 975-76. Jonathan Baert Wiener uses the term "separatist-taint presumption" to refer to the attitude that natural dynamic processes should be insulated from human interference. Jonathan Baert Wiener, Review Essay, Law and the New Ecology: Evolution, Categories, and Consequences, 22 ECOLOGY L.Q. 325, 344 (1995) (reviewing JONATHAN WEINER, THE BEAK OF THE FINCH: A STORY OF EVOLUTION IN OUR TIME (1994)).

(232) David Hunter even argues that adopting an ecologically driven "natural use doctrine" as the standard for acceptable land uses will promote greater certainty in land use regulation and takings jurisprudence. Hunter, supra note 27, at 359.

(233) Indeed, Charles Reich reads the Fifth Amendment's protection of life, liberty, and property as including a guarantee of a clean and healthy environment for all Americans. Charles A. Reich, Beyond the New Property: An Ecological View of Due Process, 56 BROOK. L. REV. 731, 733 (1990).

(234) However, Joe Sax asserts that the police power provides sufficient authority to protect wildlife, and he provides a useful list of examples. Sax, supra note 20, at 7-10.

(235) See Eric T. Freyfogle, Should We Green the Bill?, 1992 U. ILL. L. REV. 159 (arguing that we should amend the Constitution to add a green amendment as a counterbalance to the property rights protection of the Fifth and Fourteenth Amendments).

(236) See A. Dan Tarlock, Environmental Law: Ethics or Science?, 7 DUKE ENVTL. L. & POL'Y F. 193, 205-09 (1996) (describing the concept of adaptive management and noting the tension between the flexibility that is inherent in the concept and the certainty that property owners seek with respect to their property rights).

(237) 658 P.2d 709 (Cal. 1983).

(238) Id. at 732.

(239) One might even have argued that the integrity of the urban ecosystem of Los Angeles was at stake in the balance, too, although other sources of water were available to the City. This argument would be an example of the kind of perversion of ecosystem management feared by Walter Kuhlmann: defining an inconvenience for humans as a disruption of the integrity of an "ecosystem," and using the contrived disruption to offset the importance of a real disruption of a natural ecosystem. See supra note 231 and accompanying text.

(240) Mono Lake, 658 P.2d at 719.

(241) Id. at 727 (emphasis added).

(242) Id.

(243) Id. at 728.

(244) Most observers credit Joe Sax for reviving interest in the public trust doctrine with his article, Joseph L. Sax, The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention, 68 MICH. L. REV. 471 (1970). For other good general discussions of the public trust doctrine, see Richard J. Lazarus, Changing Conceptions of Property and Sovereignty in Natural Resources: Questioning the Public Trust Doctrine, 71 IOWA L. REV. 631 (1986), and Molly Selvin, The Public Trust Doctrine in American Law and Economic Policy, 1789-1.920, 1980 WIS. L. REV. 1403.

(245) There arguably is a common law doctrine that denies a landowner authority to use land for anything other than its natural ecological purposes, absent the permission of the community. This "natural use doctrine" may have been the basis for the Wisconsin Supreme Court's holding that a county's prohibition against filling a wetland lot adjacent to a lake without a permit was not a compensable taking, since the landowner did not have an inherent development right in the first place. Just v. Marinette County, 201 N.W.2d 761, 768 (1972). If "natural use" is defined by reference to ecological function of the land or other resources in question, such a doctrine would be a very effective tool for protecting ecological integrity within the balancing function of property law. See, e.g., Hunter, supra note 27, at 349-60 (constructing a theory of a natural use doctrine based on Just and cases from other states that followed the reasoning of Just); Sax, supra, note 21, at 1438-40 (criticizing the United States Supreme Court for using its opinion in Lucas to effectively overrule the Wisconsin Court's reasoning in Just); cf. John A. Humbach, Law and a New Land Ethic, 74 MINN. L. REV. 339, 344 (1989) (arguing that limiting land uses to current uses would be consistent with "the social obligation of property that is inherent in the structure of American law," and therefore not a compensable taking).

(246) 16 U.S.C. [subsections] 1531-1544 (1994).

(247) Id. [sections] 1538(a)(1)(B).

(248) Id. [sections] 1532(19).

(249) 50 C.F.R. [sections] 17.3 (1996).

(250) 515 U.S. 687 (1995).

(251) Id. at 708.

(252) A detailed, comprehensive survey of all instances in which the ecological integrity principle has been addressed by American courts, legislators, and regulators would be a massive undertaking, more suitable for another article on another day, rather than trying to squeeze such a survey into this Article. On a related subject see John Sprankling's survey of many instances in which American property law undervalues the ecological integrity principle. John G. Sprankling, The Antiwilderness Bias in American Property Law, 63 U. CHI. L. REV. 519 (1996). Also, for a survey of the use of the ecological integrity principle in public laws affecting marine resources, see Martin H. Belsky, Using Legal Principles to Promote the "Health" of an Ecosystem, 3 TULSA J. COMP. & INT'L L. 183 (1996).

(253) See Houck, supra note 170, at 327-28.

(254) Id.

(255) Id. at 299-300.

(256) Id. at 301.

(257) Id. at 329.

(258) Paleontologist Niles Eldredge uses the "canary in a coal mine" metaphor to great effect in his thought-provoking examination of how today's environmental concerns fit into natural history. NILES ELDREDGE, THE MINER'S CANARY: UNRAVELING THE MYSTERIES OF EXTINCTION (1991). Trial lawyer Jack Berkson tells of his own role as a real-life canary in a coal mine after exposure to a common pesticide in his home triggered Multiple Chemical Sensitivity Syndrome and turned his life upside down. JACOB B. BERKSON, A CANARY'S TALE (1996).

(259) DANIEL B. BOTKIN, DISCORDANT HARMONIES: A NEW ECOLOGY FOR THE TWENTY-FIRST CENTURY 188 (1990).

(260) Telephone Interview with Phil Cavits, Vice President of Communications for NWF (June 17, 1997) [hereinafter Cavits Interview].

(261) Board Adopts New Logo, Slogan for 60th Birthday, NAT'L WILDLIFE, June/July 1996, at 51.

(262) Cavits Interview, supra note 260.

(263) Thomas A. Lewis, Eight Bright Ideas That Have Powered NWF Through Six Decades, NAT'L WILDLIFe, April/May 1996, at 14, 21.

(264) Cavits Interview, supra note 260.

(265) National Wildlife Federation, Habitat Conservation Plans (visited May 29, 1997) <http://www.nwf.org/nwf/endangered/hcp/lndex.html>.

(266) Id.

(267) NATIONAL WILDLIFE FEDERATION, ANNUAL REPORT: WORKING TOGETHER TO SAVE ENDANGERED SPECIES (1996).

(268) See supra notes 253-57 and accompanying text.

TERRY W. FRAZIER, Terry W. Frazier is an Associate Professor of Law at Mississippi College School of Law in Jackson, Mississippi. He received his B.S. from Northwestern University and his J.D. from the University of Wisconsin. He would like to thank Clint Pentecost (Mississippi College '99) for research assistance with portions of this Article. He also would like to thank President Howell Todd of Mississippi College and Dean J. Richard Hurt of the School of Law for research funding to support preparation of this Article.