Property Rights: Cooperation, Conflict, and Law.

• Author: Ely, Jr., James W.
• Position: Book Review

Property Rights: Cooperation, Conflict, and Law Edited by Terry L. Anderson and Fred S. McChesney Princeton, N.J.: Princeton University Press, 2003.

Pp. x, 398. $67.50 cloth, $32.95 paperback.

Generally ignored since the mid-1930s, the concept of property rights has reclaimed a prominent spot in both scholarly and public-policy debate. A series of Supreme Court decisions strengthening the constitutional doctrine of regulatory takings has both reflected and encouraged this renewed interest in property. State courts have also contributed to this development with rulings that protect private ownership of property by limiting the exercise of the power of eminent domain. In addition, international events have helped to rekindle concern for the rights of property owners. As Professor Carol M. Rose explains, "The collapse of socialist regimes has revived an interest in property rights all over the world, as once-statist nations consider privatization as a route to commercial and economic revitalization" ("Property as the Keystone Right?" Notre Dame Law Review 71 [1996], p. 329). Even the communist government of China has started to recognize private ownership.

As one might expect, the resurgence of interest in property has produced a vast literature. Scholars have considered the role of private property in the polity from a number of perspectives. Some have advanced the traditional argument that support for private property was essential for the enjoyment of political freedom (for example, Richard Pipes, Property and Freedom [New York: Alfred A. Knopf, 1999]). Others have examined the important role of property in shaping the American constitutional system (for example, James W. Ely Jr., The Guardian of Every Other Right: A Constitutional History of Property Rights, 2d ed. [New York: Oxford University Press, 1998]). Richard A. Epstein, in particular, has boldly championed economic liberty and argued that the redistributive program of the modern welfare state is unconstitutional (see, among other works, Takings: Private Property and the Power of Eminent Domain [Cambridge, Mass.: Harvard University Press, 1985]). Still other scholars have considered the definition of property for purposes of constitutional analysis (for example, Thomas W. Merrill, "The Landscape of Constitutional Property," Virginia Law Review 86 [August 2000]: 885-999).

Most of the scholarship has viewed property rights through a historical or legal lens. In contrast, the essays...