The State’s Affirmative Duties to Promote “Just” Property Allocation

Brooklyn Law School Professor Christopher Serkin recently posted on SSRN an article entitled Affirmative Constitutional Commitments: the State’s Obligations to Property Owners. The article is scheduled for publication later this year in William & Mary Law School’s Brigham-Kanner Property Rights Conference Journal. The abstract for the article reads:

This Essay argues that social obligation theories in property generate previously unrecognized obligations on the State. Leading property scholars, like Hanoch Dagan, Greg Alexander, and Eduardo Peñalver, have argued that the institution of property contains affirmative duties to the community as well as negative rights. This Essay argues that those affirmative duties are two-way streets, and that moral bases for social obligations also generate reciprocal obligations on the State to protect property owners. The social obligation theories rely upon a dynamic not static vision of property rights. The community’s needs change, the conditions of ownership change, and the appropriate allocation of benefits and burdens within a society changes over time. Therefore, a legal obligation that is justified and permissible at the time it is enacted because it is consistent with moral obligations may become impermissible over time, even if the content of the legal obligation does not change. At the extreme, the State’s failure to respond to certain kinds of changes in the world can lead to a regulatory taking.