Jamison E. Colburn · September 2009
77 GEO. WASH. L. REV. 1411 (2009)
In this Article I try to map rights experimentalism onto our most recent (re)constructions of constitutional property and show why we owe it to future generations to start thinking about property more experimentally. Ironically, many of the troubles at the interface of modern environmental law and constitutional property law demonstrate precisely what our legal system owes to future generations. Three givens emerge immediately upon inspection. First, we lack a suitably resilient model of ownership in an age of ecology. Our cognitive capacities to grasp interconnection and change have exploded well out in front of our institutions of property, which still operate on presumptions of severability, boundedness, and stasis. Any such model of ownership needs to connect with our deeper self-understanding as a people (whatever our sciences reveal), but that imperative can be tested later. Second, our insistence that collective governance be the product of both democratic authority and sound judgment makes even the simplest broadscale collective actions into contentious societal conflicts with high decision costs and uncertain payoffs. This compounds our need for more clarity on ownership and its function in an interconnected world but, if anything, only further obstructs the evident paths toward that end. Finally, legal analysis remains at an inexplicable remove from the wider study of practical reason, a rich field that, if better integrated with law and legal analysis, would almost certainly enable legal actors to make better choices regarding scarce resources, ownership, and governance.
Parts II and III survey property as a constitutional right in the modern era from jurisdictional, doctrinal, and remedial standpoints. The takeaway from that descriptive project is that constitutional property is overburdened by its own vocabulary and conceptual structure. Part IV, rather than offering yet another account of ownership, sovereignty, or rights as legal categories (work that is being done today at a blistering pace), sketches the beginnings of an updated judicial ethic toward property rights in an age of ecology. That update is, however, methodologically modest. Its principal target is the authoring of judicial opinions that cloak rather than parse and describe their authors’ convictions, intuitions, motives, and information. Judicial opinions must be written, I argue, such that they dampen the possibilities of strategic action and its corrosive influences to the maximum possible extent. Part V concludes with a cautiously optimistic and sympathetic assessment of judges and judgments, suggesting that important reforms are both possible and needed.
