Carol M. Rose

Property and persuasion : essays on the history, theory, and rhetoric of ownership

Introduction: Approaching Property Initial Persuasions: Talk About Property Possession as the Origin of Property Property as Storytelling: Perspectives from Game Theory, Narrative Theory, Feminist Theory Wealth And Community, Then And Now Takings and the Practices of Property: Property as Wealth, Property as Propiety Ancient Constitution Versus Federalist Empire: Antifederalism from the Attack on Monarchism to Modern Localism Common Property The Comedy of the Commons: Custom, Commerce, and Inherently Public Property Energy and Efficiency in the Realignment of Common Law Water Rights Bargaining And Entitlement Crystals and Mud in Property Law Women and Property: Gaining and Losing Ground Persuasion Revisited: Vision And Property Seeing Property.

Energy and Efficiency in the Realignment of Common-Law Water Rights

THIS article is about two stories. The first is a theoretical story about the evolution of property rights generally. The second is a historical story about property rights specifically in water and particularly about the evolution of riparian law during the period of early Anglo-American industrialization. These two stories have been told separately a number of times, but they diverge substantially on several important matters. If they are told together, each needs to be modified in some interesting ways, and that is what this article will attempt to do.

Planning and Dealing: Piecemeal Land Controls as a Problem of Local Legitimacy

PAGE I. PLAN JURISPRUDENCE AS REFORM ........................ 848 A. The Assertion of Judicial Control over Piecemeal Changes .............................................. 848 L Traditional Planning Law and Plan Jurisprudence.. 848 2. The Fasano Case ................................. 851 B. The Federalist No. 10 and Local Land Decisions ..... 853 C. A Historical Excursion into Plan Jurisprudence: Of Variances and Referenda .............................. 857 L Variances and the Quasi-Judicialization of Land Use Decisions ..................................... 857 2. Referenda and the Problem of Controlling Majoritarian Rule ................................. 863

Liberty, Property, Environmentalism

The environment has often been thought to consist of resources that are unowned, and hence subject to the well-known tragedy of the commons. But in recent years, property ideas have been increasingly recruited for environmental protection, in a manner that appears to vindicate the view that property rights evolve along with the needs for resource management. Nevertheless, property regimes have some pitfalls for environmental resources: the relevant parties may not be able to come to agreement; property regimes may be weak or ineffective; they may be aimed at purposes inconsistent with environmental protection; property rights definitions may not work well for environmental resources; modern property regimes may promote monoculture rather than diverse environments. This essay describes these problems and asks to what degree they apply to a new effort to use property rights approaches, namely cap-and-trade programs to control greenhouse gases. It concludes that property rights, while imperfect and something of a retreat from a regime of complete liberty, may offer gains for environmental protection. But success will depend on close attention to the accountability and effectiveness of the governmental institutions necessary to support environmental property regimes.

Joseph Sax and the Idea of the Public Trust

In the 1970s, Joseph Sax revived of the historical “public trust” doctrine and extended it from waterways to natural resources more generally. This essay argues that Sax’s doctrinal “rediscovery” was closely linked to his growing concern that governments may be too much influenced by partial interest groups and hence unable to manage large and diffuse environmental resources. Sax turned to water law because water has traditionally been subject to community management. But his use of the language of “public trust,” though very arresting, was somewhat idiosyncratic. Traditionally, public trust doctrine focused on navigation and communication, and hence a revived public trust doctrine might have been more appropriate for new communications media than for environmental concerns. Many critics have pounced on the uncertainties of Sax’s public trust doctrine as applied to natural resources. In fact, a different area of water law–riparian law–was actually more consonant with Sax’s concerns for community management of environmental resources. But “riparianism” is a rather boring word by comparison to “public trust.” In sacrificing some historical precision and choosing the more dynamic language of “public trust,” Sax was able to dramatize important issues of environmental governance, in a way that has had great resonance to later scholarship.

The Issue of Parliamentary Suffrage at the Frankfurt National Assembly

UNIVERSAL suffrage is a commonplace in todays political world. In modern Western states it seems self-explanatory that there sho ld be a general right to vote, or at least the pretense of such a right; and it is rather the exception to universal suffrage that requires explanation?at best as a quaint local peculiarity, at worst as a sign of pigheadedness or paranoia. In our era of bland populism, it is easy to forget the nineteenth centurys passion over suffrage matters. But passion there was: from the sanscullottes ofthe 1790s to the suffragettes ofthe 1910s, no decade ofthe nineteenth century, no part ofthe Atlantic world was entirely free from this all-important question. In? deed suffrage issues erupted regularly whenever and wherever internal political tensions ran highest. Anti-Bourbon agitation in Restoration France, Chartist demands in England, Negro emancipation in the United States, demands for reform of Bismarckian Germanys Prussian heartland?these issues spanned the century, and they all contained at least some taint ofthe suffrage question. The European revolutions of184849 came roughly at the mid-point of this century-long suffrage debate, and these revolutions too raised in various ways the issue ofthe right to vote. And one ofthe most interesting discussions ofthe franchise ques? tion came in February and March of 1849, when Germanys abortive constitutional convention, the Frankfurt National Assembly, turned its attention to an Electoral Law for the lower house of the projected national representative body. The Electoral Law emerging from the Frankfurt debate called for universal manhood suffrage; but as several historians have remarked, this was a curiously democratic appendage to a constitution that was otherwise a compendium ofthe classic conceptions of early nineteenth-