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Private Property and the Constitution
I am deeply indebted to my research assistant, John Borgo, for an ongoing flow of criticism, as well as to my secretary,Diane McDougal, for typing a steady stream of second thoughts. Their work, as well as mine, was supported in part by the Law and Social Science Division of The National Science Foundation. The Foundation,however, should not be held responsible for the views expressed in this essay.I am also very grateful to my many friends at Yale and elsewhere who helped me with this book. But my debts here are so numerous and diverse as to defy a comprehensive and exact accounting.
314 pages, Kindle Edition
First published September 10, 1978
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December 21, 2016
The book is basically a long law review article about the takings clause of the constitution. It's also a good blend of political philosophy and the law.
The difficulty with these kinds of books is that I have no clue if the ideas are still relevant or if major case law has changed the playing field. I have yet to take take property, so the problems are compounded.
However, the good news about the book is that it is barely about property law. Ackerman is more interested in using the takings clause as an illustration of the two types of ideal legal philosophies and their implications. Ackerman argues that the struggle in the compensation clause is really a struggle between what he calls ordinary observers and scientific policymakers. Ordinary observers are those who wish to use ordinary non-technical language in order enforce dominant social expectations, while scientific policymakers want to use a highly developed technical language to conform the law to some master comprehensive principle, whether it is law and economic's efficiency, Bentham's utility or Kant's deontology (Ackerman sees Rawls as a promising way of transforming Kant from theoretical to applicable). Ackerman further draws distinctions between judges' willingness to defer to the other political branches and the judges' willingness to redistribute wealth. The ideal types are interesting, and Ackerman's explanation of the implications for each theoretical framework is illuminating.
Ackerman's main thesis is that takings clause is dominated by ordinary observer philosophy. According to Ackerman, the law tries to organize takings jurisprudence around common social understandings of property and takings rather than the legal meaning of property. Such an explanation drives why the takings clause will compensate someone who has their property explicitly taken or destroyed by the state by not when the value of their property is destroyed by regulation. However, Ackerman argues that this view has become incoherent over time, and is being challenged by scientific policymakers. Scientific policy makers wish to base takings jurisprudence on the legal understanding of property as bundles of legal rights, and conform the distribution of these rights to some master principle. Ackerman clearly, approves of the rise of scientific policy makers, but takes great lengths to explain the nuances of each position, their conflicts and areas of agreement.
Overall, the writing is very fluid, and it's fun seeing Ackerman apply utility, Kant and even Hegel to the law. It's clearly written by a lawyer, most of the book is probably disclaimer and qualifications! A good read overall, even if the law is not current.
The difficulty with these kinds of books is that I have no clue if the ideas are still relevant or if major case law has changed the playing field. I have yet to take take property, so the problems are compounded.
However, the good news about the book is that it is barely about property law. Ackerman is more interested in using the takings clause as an illustration of the two types of ideal legal philosophies and their implications. Ackerman argues that the struggle in the compensation clause is really a struggle between what he calls ordinary observers and scientific policymakers. Ordinary observers are those who wish to use ordinary non-technical language in order enforce dominant social expectations, while scientific policymakers want to use a highly developed technical language to conform the law to some master comprehensive principle, whether it is law and economic's efficiency, Bentham's utility or Kant's deontology (Ackerman sees Rawls as a promising way of transforming Kant from theoretical to applicable). Ackerman further draws distinctions between judges' willingness to defer to the other political branches and the judges' willingness to redistribute wealth. The ideal types are interesting, and Ackerman's explanation of the implications for each theoretical framework is illuminating.
Ackerman's main thesis is that takings clause is dominated by ordinary observer philosophy. According to Ackerman, the law tries to organize takings jurisprudence around common social understandings of property and takings rather than the legal meaning of property. Such an explanation drives why the takings clause will compensate someone who has their property explicitly taken or destroyed by the state by not when the value of their property is destroyed by regulation. However, Ackerman argues that this view has become incoherent over time, and is being challenged by scientific policymakers. Scientific policy makers wish to base takings jurisprudence on the legal understanding of property as bundles of legal rights, and conform the distribution of these rights to some master principle. Ackerman clearly, approves of the rise of scientific policy makers, but takes great lengths to explain the nuances of each position, their conflicts and areas of agreement.
Overall, the writing is very fluid, and it's fun seeing Ackerman apply utility, Kant and even Hegel to the law. It's clearly written by a lawyer, most of the book is probably disclaimer and qualifications! A good read overall, even if the law is not current.
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