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Should property owners have a unique right to express their opinion just because they own property? While current law recognizes owners' rights to express their voices in certain instances, it does not provide comprehensive and coherent answers to this question. This article provides an analytical framework for recognizing the owners' right to voice as an independent property entitlement within the owners' property bundle of rights and delineates its boundaries. Yet even when the owners' voice is property-dependent, there is a difference between voice that facilitates the realization of another property entitlement (such as the right to exclude, use, or trade) and voice that is constitutive to ownership in and of itself. Only the latter instances justify recognition of the owners' right to a voice as an independent property entitlement. By examining different branches of both tangible and intellectual property law, such as inheritance law, eminent domain, homeowners' association law, zoning law, and copyright law, this article demonstrates the usefulness of the proposed analytical framework in explaining certain parts of the current law and suggests modifications of other parts. [ABSTRACT FROM AUTHOR]

The development of environmental law starting in the mid-20th century involved constant tension with private property. Attempts to protect the dwindling natural resources, extinct species of animals, and ecosystems at risk have often encountered obstacles when they demanded interference with private property. Although the theoretical roots of private property do not justify its transformation into an environmental obstacle and, to a large extent, attach importance to environmental values in justifying private property rights, it was private property that stood at the forefront of legal conflicts that revolved around attempts to expand the environmental protection of natural resources. The reason for turning private property into an obstacle to a proper environmental policy stems from adopting a concept according to which private property protects only human interests and values. In contrast, environmental interests that cannot be converted into human terms remain outside private property boundaries. This either–or concept, or as William Baxter termed it in 1974, “peoples or penguins,” harms the ability of courts and other decision-makers to implement a proper and effective environmental policy because it prioritizes human interests over those of nature and its resources. This Article claims there is no reason for the decision-makers to be forced to choose between people and penguins since the interests of both humans and nature can normatively, and practically should, find expression in private property. Private property as a legal institution is an arena for value discussion as well as for making balances between values that are perceived as necessary for society. The exclusion of environmental values from the value clarification conducted to define the scope of property rights is not only a normative failure but also harms the ability to deal effectively and adequately with pressing environmental challenges. The internalization of environmental values into private property, along with human (owner freedom) and social values (such as efficiency and shared welfare), will enable a proper definition of property rights and will provide courts and other decision-makers with the means to formulate, and implement, a proper environmental policy. [ABSTRACT FROM AUTHOR]

The COVID-19 pandemic led all states to issue regulations aiming to limit the spread of the coronavirus and reduce morbidity and mortality. Alongside the impediments that the “stay at home” and social distancing regulations imposed on citizens’ freedom of movement, worship, and leisure, they also interfered, sometimes significantly, with owners’ property rights. Most states ordered closure of non-essential businesses; some prohibited or suspended evictions of residential and commercial rentals, and others restricted beach access, preventing beachfront owners from using their property. The COVID-19 regulations’ harmful economic effects led owners from states all across the country to bring legal challenges to these regulations. Among other claims, owners argued that the regulations violated the Fifth Amendment to the United States Constitution, because the regulations constituted a taking of private property for public use without the payment of just compensation. This article argues that although current takings jurisprudence may pose considerable legal challenges for property owners, establishing owners’ Fifth Amendment claims for compensation for the economic damages resulting from the COVID-19 regulations is not at all unfounded. While regulating property in emergencies is often considered within the state police power, thus relieving the government from paying compensation to owners, there may be circumstances where emergency property regulation would constitute a takings, requiring the government to compensate owners. To further this argument, the article proposes a theory that allows lawmakers and courts to better distinguish between the state’s police power and its eminent domain power. The proposed theory suggests that although the state’s police power is designed to allow the government to regulate property to respond to emergencies efficiently and effectively, such regulation may nevertheless exceed the state police power if it imposes a disproportionate burden on property owners. In such cases, takings claims may become the most significant means by which property owners can cope with emergency property regulation. [ABSTRACT FROM AUTHOR]

Three concerns are inherent to the power of eminent domain -- when a government forcibly takes away private property to provide a social good: abuse of this power, unfair distribution of burdens among members of society, and inefficient implementation of the government project. To protect against these undesirable outcomes, expropriation laws in most Western jurisdictions incorporate three safeguards: due process, a public use requirement, and mandatory compensation. While jurisdictions implement these safeguards in different ways, most demand their implementation as a prerequisite for legitimate expropriation. Arguably, the purpose of allowing governments to expropriate private property is to provide for important societal needs. But this conflicts with the idea that the government ought to perfectly adhere to the three aforementioned safeguards at all times. Imperfect circumstances, such as times of crisis, likely require governments to provide for the needs of their citizens, but afford insufficient time for standard due process. Imperfect implementation of the three safeguards may also be necessary when authorities struggle with budgetary limitations that prevent full compensation, or when they are unable to meet a social need without the involvement of private entities. In all these imperfect circumstances, at least one of the safeguards might be compromised if the government is to provide required social needs through expropriation. This Article proposes a novel model to conceptualize eminent domain, which identifies an interplay among expropriation laws ' three safeguards. It further recognizes that each of these safeguards protects, to some extent, against all three of the potential dangers inherent in government's expropriation power. This innovative interplay model legitimizes compromise, such that it is appropriate for there to be only partial implementation of one safeguard as long as the other two are strictly applied. The interplay model proposed in this Article, therefore, allows the government to exercise its expropriation power properly even in imperfect circumstances, while still sufficiently protecting property owners and society from abuse of that power. [ABSTRACT FROM AUTHOR]

There is a clear tension in the law between exercises of state police power in land-use regulation including zoning laws, on the one hand, and takings under the Fifth Amendment, on the other. Courts have struggled to find a dividing line between the two, but for their efforts what we are left only with is a disjointed array of legal tests, each one as flawed as the next. Legal theorists, for their part, must shoulder some of the blame--no single theory can identify the point at which community need outweighs private property rights. Even well-developed theories thus fail to translate into practical application. But this Article is resolved to bridge that gap. This Article presents a novel theory that provides a unified normative framework for evaluating government interference with private property. It seeks to identify the tipping point at which private property rights must give way to the needs of the community at large. This approach, which I refer to as Property's Tipping Point, is a burden-shifting framework that accommodates competing theories of property. It builds on landmark Supreme Court cases to provide a unified standard for courts to apply in resolving cases of regulatory takings and exactions. The approach presented in this Article has both a substantive and a procedural component. It develops two tests that work dynamically to identify the point where community need trumps owner autonomy: the indispensability of needs and the generality of action. The former requires that any government interference with private property is designed to promote community prosperity. The latter test--the generality of action--confines the government to the boundaries of the rule of law. It is only by passing these two tests that a government authority may reach Property's Tipping Point. [ABSTRACT FROM AUTHOR]