Playing Darts with a Rembrandt: Public and Private Rights in Cultural Treasures.

• Author: Costonis, John J.
• Position: Review

PLAYING DARTS WITH A REMBRANDT: PUBLIC AND PRIVATE RIGHTS IN CULTURAL TREASURES. By Joseph L. Sax. Ann Arbor: The University of Michigan Press. 1999. Pp. xiv, 245. $32.50.

1. INTRODUCTION

   Theorists of private property invite comparison to theorists of light.

   For centuries, the latter have debated whether light is best understood as a wave or as a photon. The rivalry has been intense because each hypothesis explains some characteristics of light very well, but others very poorly. Wave theory outstrips photon theory in explaining such phenomena as light's frequencies and diffraction patterns. But photon theory, which reduces light to a succession of particles, more effectively explains such subatomic phenomena as changes in an atom's orbital shell produced by the interaction of photons and electrons.

   Property theorists too can be viewed as occupying different positions on a spectrum. On one end are those supporting a conception of property as a self-contained and bounded photon; on the other, those favoring a model of property as a wave registering, indeed incorporating, the tensions and values of the social ether through which the wave moves.

   1. Property as Photon

      The property-as-photon model undergirds United States Supreme Court opinions labeling as "per se takings" public restrictions that license a permanent physical occupation of private property or that deprive the owner of its entire economic value. These opinions deem irrelevant the public purposes underlying these restrictions -- the social "ether," if you will, within which they are intended to function. Like a self-contained photon, private property stands separate and apart from its claimed links to larger social purposes. Uncompensated incursions upon it are deemed per se takings, no matter how compelling the governmental purpose or, in the case of permanent physical occupations, how marginal the encroachment. These opinions, moreover, tend to identify the "property" in question as much with the physical entity itself (typically real estate) as with the relations the physical entity bears to its owner and to the community beyond.

      The two leading per se takings opinions illustrate these features. Loretto v. Teleprompter Manhattan CATV Company,(1) a permanent physical occupation case, examined a New York statute that authorized cable television companies to install 4"x 4"x 4" control boxes atop New York City apartment buildings without securing their owners' permission. The statute's purpose was to facilitate the diffusion of cable TV's educational and social benefits by reducing viewer costs that had been inflated by fees charged by building owners for the space atop their roofs.(2)

      Whether or not the public interest in increasing viewer access should prevail over the owners' claim is certainly debatable. But the Court's per se rule prevented the question from being raised at all. Distressed that the cable companies' "property" (their cable boxes) would be affixed, unconsented, to the building owner's "property" (the space atop the building), the Court confined its analysis to an evaluation of the character of the physical encroachment alone.(3) Predictably, it concluded that the statute's grant of uncompensated access violated the Fifth Amendment's takings ban.(4)

      Lucas v. South Carolina Coastal Council,(5) a total economic deprivation case, likewise focused on a public restriction's impact on private property while proscribing inquiry into the consequences beyond a landowner's lot lines of his exercise of dominion over his property. As defined by the South Carolina legislature, the restriction sought, among other purposes, to prevent coastal erosion by barring construction within a prescribed distance from a shoreward line.(6) To be effective, such programs must address regulated areas as comprehensive ecological networks -- such as shorelines, basins, or estuaries -- not as discrete ownership parcels isolated from these networks.

      The coastal plan, which placed Lucas's two lots in the non-buildable shoreward zone, was comprehensive. But it failed to provide him with a financial offset for the total loss of development rights that its comprehensiveness dictated. For the Court, the loss of these rights alone determined Lucas's outcome. Unless the restriction inheres in the owner's title by virtue of the state's prior property or nuisance principles, reasoned Justice Scalia in his majority opinion, the statute's public purposes must be ignored in the takings calculus.(7)

      This is property-as-photon theory with a double vengeance. It segregates individual private lots from their inclusion in larger ecological units. It also dismisses from the takings calculus consideration of the off-site community advantages these restrictions are designed to serve.

      The photon model, like that of light, explains, or at least rationalizes, a variety of issues associated with its subject. One is the structure of the Fifth Amendment's syntax that "private property [may not] be taken for public use."(8) The Amendment's independent treatment of the terms "property" and "public use" arguably supports the view that an owner's proprietary interest is not diminished by the "publicness" of the property in question.(9) On the contrary, the text could be read to reflect that the more "public" the benefits conferred on the larger community by the contested private property restrictions, the stronger the claim that these restrictions require compensation as a matter of constitutional right.(10)

      The model also comports with the common understanding that property implicates autonomy and personality values as well as economic values. Autonomy fits hand in glove with the conception of property as a barrier against, not as an opening for, state curtailment of the owner's dominion. As William Pitt declared long ago:

      [t]he poorest man in his cottage may bid defiance to all the forces of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter it; but the King of England cannot enter it! All his power dares not cross the threshold of that ruined tenement!(11) The property-as-photon model is further distinguished by its roots in, and congruence with, the preference of America's mixed economic system for private ordering absent evident market failure or injury to others stemming from proprietor primacy. This preference derives from a wariness of public regulations imposed in the name of communitarian values. Its adherents, which include many of the last quarter century's law and economics and public choice scholars, believe that the private marketplace is typically the most efficient resource allocator and that private ordering best safeguards individual freedom by linking property and personality.(12) Some even believe they have the mathematical equations to prove these contentions.

      Paralleling the communitarians' fear of market failure, is the photon theorists' obsession with government failure. Their reasoning is familiar. Government may regulate inefficiently or inequitably due to insufficient information, excessive administrative costs, or simply, inept management. Values masquerading as communitarian are often those of private factions more astute at manipulating the political process than are their adversaries or an indifferent or acquiescent public in whose name these values are asserted.

      Photon model adherents also question legislators' capacity to anticipate or describe the activities a particular measure seeks to regulate with sufficient precision to achieve the purposes at hand or to cabin the risks associated with the strategic behavior of factions or, for that matter, of governmental officials themselves. They believe that dangers of such governmental failure outweigh the risk that a private ordering system may overlook goals valued by elites or, perhaps, by many others in the community.

      The property-as-photon model reinforces the private ordering preference in multiple ways. It warns that public regulation that too easily dismisses the preference may fail in a system in which the institution of property remains solidly linked to private initiative despite government's increasing role as a creator and regulator of wealth. The private sector may eschew or obscure from governmental attention the creation, ownership, preservation or donation of property valued by the public if government shifts to itself the owner's proprietary entitlements. The model, which is premised on the wide diffusion of property and property owners throughout the private sector, also explains why high administrative and enforcement costs inevitably accompany governmental efforts to regulate property or its owners.(13)

      The model also rationalizes a legal regime that invests presumptive dominion over property with its private owner, and allows this presumption to be overridden only if government can justify the regulation under its police or eminent domain powers. The presumption favors the economic interest of individual property owners, of course. No less important to adherents of private ordering, it also hinders the imposition of these controls by requiring government to generate political support for the exercise of either power and, in the case of the eminent domain power, to drain the public treasury as well.

   2. Property as Wave

      Property's wave theorists portray the bounds of proprietary entitlement as dependent in any given context upon the clash of pertinent social and proprietor interests.(14) Theirs is a secular, not a sacred, conception of property rights, which they are more inclined to view as expectations subject to diminution by superceding public interests. Illustrative of this viewpoint, and worthy of contrast with the United States Constitution's Fifth Amendment, is Article 42(2) of the Italian Constitution, which, under the title of "Property" states:

      Private ownership is recognized and guaranteed by laws which prescribe the manner in...