On Private Property: Finding Common Ground on the Ownership of Land

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Beacon Press, 2007 - Business & Economics - 186 pages
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A fresh legal argument on what it means to own land, navigating issues of eminent domain, sprawl, and conservation

Private property poses a great dilemma in American culture. We revere the institution and are quick to protect private-property rights, yet we are troubled when landowners cause harm to their neighbors and communities, especially when new development fuels sprawl and degrades the environment. Recent Supreme Court cases and new state laws around eminent domain have generated great controversy, and yet many people are unsure where they stand on this issue.

In this wide-ranging inquiry, law professor Eric Freyfogle explores the inner workings of the familiar but poorly understood institution of private property. He identifies the three threats it currently faces: government mismanagement, the recently reinvigorated property rights movement, and conservation groups’ efforts to buy tracts of land in order to protect them. He then offers a solution in the middle ground between the extreme sides of these debates.

In On Private Property, Freyfogle gives glimpses of landownership’s surprising past, revealing its complex links to liberty and ultimately showing why private property rights must remain consistent with a community’s overall good. In conclusion, Freyfogle constructs piece by piece a provocative new vision of landownership, at once respectful of private interests yet responsive to communal needs.

“Freyfogle's new book, which probably should have been titled "Roll Over, John Locke," is just what the public debate over property rights needs. Straight talk, and an invitation to open a conversation about the real issues.” —Joseph L. Sax, author of Playing Darts with a Rembrandt: Public and Private Rights in Cultural Treasures

“A fresh perspective and penetrating legal and historical analysis of an issue that will continue to be in the forefront of land policy in the 21st century.” —Anthony Flint, Lincoln Institute of Land Policy, author of This Land: The Battle over Sprawl and the Future of America

“In a work that eschews easy slogans, Eric Freyfogle proves the truth about American property rights—that original intent, early court opinions, and the realities of modern society all mandate that ownership brings with it weighty but reasonable responsibilities to the larger community. This beautifully-articulated book, at once bold and thoughtful, is bound to become a classic in American constitutional and property law.” —Charles Wilkinson, Distinguished University Professor and Moses Lasky Professor of Law at the University of Colorado and author of Crossing the Next Meridian: Land, Water, and the Future of the West



 

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Contents

Correcting the HalfTruths i
1
The Lost Right to Roam
29
Legal Confusion and Its Fruit
61
Propertys Functions and the Right to Develop
84
When We Should Pay
105
A Bill of Rights
131
Epilogue
157
Notes
181
Copyright

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About the author (2007)

Eric T. Freyfogle has written widely on the many links between people and land, and on the need for a more land-sensitive culture, including the recent books Agrarianism and the Good Society and Why Conservation Is Failing and How It Can Regain Ground. His nonlegal writings have appeared in various publications, from Conservation Biology, Wild Earth, and Orion to Dissent and The New York Times. Freyfogle has appeared widely as a speaker, not just at academic gatherings, but at land-related conferences sponsored by major federal agencies, major national conservation organizations, and such professional organizations as the Society of American Foresters, the George Wright Society, and the Natural Areas Association. In January 2004 he was appointed editor of the Leopold Conservation Papers Project, an effort to edit and publish in thematic volumes the conservation writings of Aldo Leopold. He teaches at the University of Illinois College of Law at Urbana-Champaign.

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