Law Commons^™

The takings clause of the Arkansas Constitution declares that “the right of property is before and higher than any constitutional sanction.” Perhaps such an elevated regard for property is little more than a relic of the post-reconstruction South. But the philosophy seems surprisingly well aligned with a 2013 decision of the U.S. Supreme Court. Koontz v. St. Johns River Water Management District holds that the U.S. Constitution requires heightened scrutiny when a land use authority exacts an impact fee in exchange for a development permit. Koontz arguably reconceives the Court’s attitude toward routine land use regulation, implying a constitutionally favored …

By demanding stewardship of natural capital over exploitation, sustainability envisions a property regime less committed to individual property rights than are the traditional and economic theories of property. While the traditional property theories of Blackstone, Locke, and U.S. constitutional doctrine tolerate restrictions on private property rights for the sake of public welfare, they resist the strongest versions of sustainability, which promote generational and social justice. Similarly, an economic analysis of property recognizes the values of resource conservation and welfare for future generations, but only to the limited extent the economist can calculate future value. As a result, economic analysis may …