Robin Kundis Craig
Robert A. Schroeder Distinguished Professor of Law,
University of Kansas School of Law
Tuesday, December 3rd
1:00PM - 2:00PM Central
via Zoom
Approved for 1.0 hour of Texas MCLE credit
Advocates for private property rights tend to atomize real property, dividing land into individual parcels and, legally, “bundles of sticks.” Only a few common-law doctrines, such as nuisance, acknowledge the potential for activities on one real estate parcel to affect either other discrete parcels or the community as a whole. In the U.S. Supreme Court, the increasing atomization of private property rights has come about through the Court’s increasing emphasis on the right to exclude and its development of regulatory takings law in derogation of the traditional police power. In the states, in contrast, the pervasive negative reactions to the Court’s eminent domain decision in Kelo v. City of New London similarly privilege individual property rights over legislative determinations of what uses of land best promote the public interest and welfare. However, real estate is never atomistic and discrete because the land itself both harbors and participates in complex adaptive systems operating at multiple scales. The result is that activity on any parcel of land has the potential to affect both other parcels and societies more generally; moreover, combination and/or cumulative alterations have the potential to induce systemic risk to entire social-ecological systems. Only in water law does the law pervasively acknowledge the connectivity of and larger public interests in land, by creating special rules for riparian properties, particularly when they involve navigable waters, to preserve and protect public rights and interests. This talk posits that riparian law could thus serve as one model for reviving the public interest in land-as-system, providing three other examples of how land is more than a collection of real estate parcels. In particular, it argues that individual landowners—not just the general public—benefit from rules and regulations that preserve larger system function and that a benefit-sensitive analysis should help to tip the balance back in favor of the public interest. But why is land—immovable, enduring land—the central symbol for property? Why not, say, water? Water, after all, is in fact the subject of important and valuable property rights, and indeed, concerns about water can substantially modify rules about land. If water were our chief symbol for property, we might think of property rights—and perhaps other rights—in quite a different way.
