[*] MAX L. ROWE PROFESSOR OF LAW, UNIVERSITY OF ILLINOIS COLLEGE OF LAW. B.A., LEHIGH UNIVERSITY, 1973; J.D., UNIVERSITY OF MICHIGAN LAW SCHOOL, 1976. PROFESSOR FREYFOGLE TEACHES COURSES IN PROPERTY, ENVIRONMENTAL LAW, AND NATURAL RESOURCES LAW. Return to text.

[1] The visions and utopian dreams of American colonists provide an organizing focus in DANIEL J. BOORSTIN, THE AMERICANS: THE COLONIAL EXPERIENCE (1958). A classic study of Winthrop's mission is EDMUND S. MORGAN, THE PURITAN DILEMMA: THE STORY OF JOHN WINTHROP (1958). The search for meaning in the New World was part of the larger process of discovering the continent's nature, a process that has continued ever since in the form of an ongoing social conversation. As environmental historian Richard White notes, "Americans have defined themselves and their continent in terms of nature while quarreling over what nature contains and what it means." Richard White, Discovering Nature in North America, 79 J. AMER. HISTORY 874, 877 (1992). Return to text.

[2] Several widely differing Christian interpretations of the story are considered in ELAINE PAGELS, ADAM, EVE, AND THE SERPENT (1988). Return to text.

[3] See DONALD WORSTER, THE WEALTH OF NATURE 9-15 (1993); Carolyn Merchant, Reinventing Eden: Western Culture as a Recovery Narrative, in UNCOMMON GROUND: TOWARD REINVENTING NATURE 132, 154-56 (William Cronon ed., 1995) [hereinafter Merchant, Reinventing Eden]. My thinking about Eden narratives in the United States borrows heavily from the work of Professors Worster and Merchant; less directly it draws upon the three classic studies of LEO MARX, THE MACHINE IN THE GARDEN: TECHNOLOGY AND THE PASTORAL IDEAL IN AMERICA (1964), R.W.B. LEWIS, THE AMERICAN ADAM: INNOCENCE, TRAGEDY, AND TRADITION IN THE NINETEENTH CENTURY (1955), and HENRY NASH SMITH, VIRGIN LAND: THE AMERICAN WEST AS SYMBOL AND MYTH (1950). Return to text.

[4] See Merchant, Reinventing Eden, supra note 3, at 154; Carolyn Merchant, Paradise and Property: Locke's Narrative and the Transformation of Nature (1997) (unpublished manuscript, on file with author). Return to text.

[5] See Merchant, Reinventing Eden, supra note 3, at 140. Return to text.

[6] See id. Return to text.

[7] See id. Return to text.

[8] Three important works surveying and criticizing the dominance of Enlightenment thought are JOHN RALSON SAUL, VOLTAIRE'S BASTARDS: THE DICTATORSHIP OF REASON IN THE WEST (1992), DAVID EHRENFELD, THE ARROGANCE OF HUMANISM (1978), and WILLIAM LEISS, THE DOMINATION OF NATURE (1972). The American context is considered in HENRY F. MAY, THE ENLIGHTENMENT IN AMERICA (1976). Return to text.

[9] This trend is assessed in its larger context in CAROLYN MERCHANT, THE DEATH OF NATURE: WOMEN, ECOLOGY, & THE SCIENTIFIC REVOLUTION (1980). Return to text.

[10] See ALLAN KULIKOFF, THE AGRARIAN ORIGINS OF AMERICAN CAPITALISM (1992); J.E. CROWLEY, THIS SHEBA, SELF: THE CONCEPTUALIZATION OF ECONOMIC LIFE IN EIGHTEEN- CENTURY AMERICA (1974). Return to text.

[11] The classic study, focusing on Western culture, is KARL POLANYI, THE GREAT TRANSFORMATION: THE POLITICAL AND ECONOMIC ORIGINS OF OUR TIME (1944). The English context is considered in JOYCE APPLEBY, ECONOMIC THOUGHT AND IDEOLOGY IN SEVENTEENTH- CENTURY ENGLAND (1978). Appleby considers the rise of economic thought in the United States, and its growing ascendance over civic republican ideas, in various works including her CAPITALISM AND A NEW SOCIAL ORDER: THE REPUBLICAN VISION OF THE 1790S (1984) and LIBERALISM AND REPUBLICANISM IN THE HISTORICAL IMAGINATION (1992). Implications for property rights are considered in Elizabeth V. Mensch, The Colonial Origins of Liberal Property Rights, 31 BUFF. L. REV. 635 (1982). Return to text.

[12] See, e.g., WILLIAM B. SCOTT, IN PURSUIT OF HAPPINESS: AMERICAN CONCEPTIONS OF PROPERTY FROM THE SEVENTEENTH TO THE TWENTIETH CENTURY 36-70 (1977). Return to text.

[13] Locke's ideas of property are set forth principally in Chapter V of his Second Treatise of Government. See JOHN LOCKE, TWO TREATISES OF GOVERNMENT 303-20 (Peter Laslett, ed., Cambridge Univ. Press 1988) [hereinafter TWO TREATISES]. These ideas are assessed critically in LAWRENCE G. BECKER, PROPERTY RIGHTS: PHILOSOPHIC FOUNDATIONS 32-56 (1977); ALAN RYAN, PROPERTY AND POLITICAL THEORY 14-48 (1977); RICHARD SCHLATTER, PRIVATE PROPERTY: THE HISTORY OF AN IDEA 151-61 (Russell & Russell 1973). The omission of the right of property in the Declaration of Independence is considered in MORTON WHITE, THE PHILOSOPHY OF THE AMERICAN REVOLUTION 213-28 (1978).

Daniel Boorstin, in his study of Blackstone's commentaries and mid-eighteenth century English legal thought, notes that Locke's work was popular in England during the century, but only because theorists were able to read into it such conflicting interpretations. See DANIEL BOORSTIN, THE MYSTERIOUS SCIENCE OF THE LAW 168 (1941). "In the course of the [eighteenth] century, [Locke's theory] was many things to many men, and 'Locke' became the pseudonym for everyman's theory of property." Id. Return to text.

[14] See TWO TREATISES, supra note 13, at 304-06. Return to text.

[15] See id. at 311. Return to text.

[16] See id. at 314. Return to text.

[17] See Merchant, Reinventing Eden, supra note 3; Merchant, Paradise and Property: Locke's Narrative and the Transformation of Nature, supra note 4. Return to text.

[18] See Merchant, Reinventing Eden, supra note 3, at 142. Return to text.

[19] Principally in his NOTES ON THE STATE OF VIRGINIA (William Peden ed., North Carolina Press 1955). Jefferson's work is often considered from different angles. See, e.g., RODERICK NASH, WILDERNESS AND THE AMERICAN MIND ch. 4 (3d ed. 1982) (as a defense of perfection of American nature); MARX, supra note 3, 116-44 (as a pastoral ideal). Return to text.

[20] See LAWRENCE BUELL, THE ENVIRONMENTAL IMAGINATION passim (1995); NASH, supra note 19, at 67-107; MAX OELSCHLAEGER, THE IDEA OF WILDERNESS 133-71 (1991); MARX, supra note 3; LEWIS, supra note 3; DONALD WORSTER, NATURE'S ECONOMY: A HISTORY OF ECOLOGICAL IDEAS 59-111 (2d ed. 1994); ROBERT KUHN MCGREGOR, A WIDER VIEW OF THE UNIVERSE: HENRY THOREAU'S STUDY OF NATURE (1997). Return to text.

[21] See NASH, supra note 19, at 147. Return to text.

[22] See id. at 147-48. Return to text.

[23] See JACK LONDON, THE CALL OF THE WILD (1903). Return to text.

[24] See EDGAR RICE BURROUGHS, TARZAN OF THE APES (1914). Return to text.

[25] See id. at 122-60; OELSCHLAEGER, supra note 20, at 172-204. Return to text.

[26] See NASH, supra note 19, at 129. Return to text.

[27] The classic study is SAMUEL P. HAYS, CONSERVATION AND THE GOSPEL OF EFFICIENCY: THE PROGRESSIVE CONSERVATION MOVEMENT 1890-1920 (1959). Return to text.

[28] Some of the debates are considered in GREGORY S. ALEXANDER, COMMODITY & PROPRIETY: COMPETING VISIONS OF PROPERTY IN AMERICAN LEGAL THOUGHT 1776-1970 (1997); SCOTT, supra note 12; William Weston Fisher III, The Law of the Land: An Intellectual History of American Property Doctrine, 1776-1880 (1991) (unpublished Ph.D. dissertation, Harvard University) (on file with the Harvard University Library).

Useful considerations of the role of narratives in debates over private property include Gregory S. Alexander, Takings, Narratives, and Power, 88 COLUM. L. REV. 1752 (1988); Carol M. Rose, Property as Storytelling: Perspectives from Game Theory, Narrative Theory, Feminist Theory, 2 YALE J. L. & HUMAN. 37, 48-53 (1990); Myrl Duncan, Property as a Public Conversation, Not a Lockean Soliloquy: A Role for Intellectual and Legal History in Takings Analysis, 26 ENVTL. L. 1095 (1996); Marc R. Poirer, Property, Environment, Community, 12 J. ENVTL. L. & LITIG. 43 (1997). Return to text.

[29] The "wise use" movement, arising in the mid-1990's, is critically considered in John Echeverria & Raymond Booth Eby, Let the People Judge: Wise Use and the Private Property Rights Movement (1995). Return to text.

[30] Now the leading assessment is ALEXANDER, supra note 28. Two thoughtful considerations are Duncan, supra note 28, and Poirer, supra note 28. Return to text.

[31] The classic consideration is LOUIS HARTZ, THE LIBERAL TRADITION IN AMERICA (1955). A summary of liberalism today as a public philosophy is set forth in MICHAEL J. SANDEL, DEMOCRACY'S DISCONTENT: AMERICA IN SEARCH OF A PUBLIC PHILOSOPHY 4-7 (1996). In the context of property rights, a useful consideration is Margaret J. Radin, The Liberal Conception of Property: Cross Currents in the Jurisprudence of Takings, 88 COLUM. L. REV. 1667 (1988) (sum marizing liberalism in the context of property rights). Return to text.

[32] I define liberalism as historian Lance Banning did in a useful comparison of liberal and classical republican thought:

Liberalism is a label most would use for a political philosophy that regards man as possessed of inherent individual rights and the state as existing to protect these rights . . . A full-blown, modern liberalism, . . . posits a society of equal individuals who are motivated principally if not exclusively by their passions or self-interest; it identifies a proper government as one existing to protect these individuals' inherent rights and private pursuits. . . . Liberalism, thus defined, is comfortable with economic man, with the individual who is intent on maximizing private satisfactions and who needs to do no more in order to serve the general good.

[33] See RICHARD A. EPSTEIN, TAKINGS: PRIVATE PROPERTY AND THE POWER OF EMINENT DOMAIN (1985) [hereinafter EPSTEIN, TAKINGS]. The following discussion of Epstein's thinking draws upon this major work as well as many of his articles, including A Clear View of The Cathedral: The Dominance of Property Rules, 106 YALE L. J. 2091 (1997); Some Doubts on Constitutional Indeterminacy, 19 HARV. J. L. & PUB. POL'Y 363 (1996); A Conceptual Approach to Zoning: What's Wrong with Euclid, 5 N.Y.U. ENVTL. L. J. 277 (1996); History Lean: The Reconciliation of Private Property and Representative Government, 95 COLUM. L. REV. 591 (1995); Lucas v. South Carolina Coastal Council: A Tangled Web of Expectations, 45 STAN. L. REV. 1369 (1993); Property as a Fundamental Civil Right, 29 CAL. WEST. L. REV. 187 (1992); Regulation-and Contract-in Environmental Law, 93 W. VA. L. REV. 859 (1991); Takings: Descent and Resurrection, 1987 SUP. CT. REV. 1. Return to text.

[34] See generally EPSTEIN, TAKINGS, supra note 33. Return to text.

[35] See id. at 35-36. Return to text.

[36] See id. at 112-25. Return to text.

[37] See id. at 121. Return to text.

[38] See id. at 121-25. Return to text.

[39] See id. Return to text.

[40] See id. at 123. Return to text.

[41] See id. at 121-23. Return to text.

[42] See id. at 7-18. Return to text.

[43] See id. at 10. Return to text.

[44] See id. at 10-15. Return to text.

[45] See id. Return to text.

[46] See id. at 13. Return to text.

[47] See id. at 14-15. Return to text.

[48] See id. at 10. In deleting God from Locke's story, Epstein noted only that the divine gift created problems because it resulted in the communal ownership of property. He does not note that God's role in Locke's story brought along with it an entire moral order that undergirded and gave shape to the individual's role in society. As Thomas Spragens notes,

From its outset, liberalism has embraced individualism, in the sense that it prized autonomy and demanded compelling warrant for any governmental restriction of individual freedom. But the individual in Locke, Mill, Adam Smith, and Condorcet enjoyed his or her freedom only within the context of complementary obligations, deriving from communal attachments and responsibilities, from the restraints of a valid moral order, and from the force of human sympathy. No early liberal would have ever defended the buccaneer individualism of a Herbert Spencer or ever even conceived of an individual like Sartre's Orestes, who finds "nothing left in heaven, no right or wrong, or anyone to give me orders" and concludes that he is to live by "no other law but mine."

[49] See EPSTEIN, TAKINGS, supra note 33, at 10-11. Return to text.

[50] Epstein's objections to the labor theory address this issue only tangentially, but it is, I believe, implicit in his comments. His most extended treatment of the labor theory appears in his defense of first possession. See generally Richard A. Epstein, Possession as the Root of Title, 13 GA. L. REV. 1221 (1979). In the course of discussing the classic case of Pierson v. Post, 3 Cai. R. 175 (N.Y. 1805), dealing with the capture of an unowned fox, Epstein criticizes the dissenting judge's position because (according to Epstein) it sought to protect the original hunter's labor invested in the hunt; the majority opinion, which Epstein favors, gave the fox to the party who actually took possession of it, without regard to labor expended—a clearer, easier rule to apply. See Epstein, Possession as the Root of Title, at 1224-25. Epstein points to various difficulties that arise in attempting to protect the value of a person's labor in various settings; though the particular hypotheticals he presents do not principally deal with the challenge of calculating the value of that labor.

My guess is that Epstein avoids dealing with the issue more directly because of the difficulty that it poses. In Locke's theory, as he recognizes, labor gave rise to property rights only when a thing was so plentiful that it had essentially no value. When a thing did have value, the labor logically would give rise at most to a lien for the value of the labor itself (although Locke did not deal with this factual possibility). See id. at 1226. Had Epstein pursued this point, however, he likely would have recognized that labor that trivially improves an item's value—for instance, picking up a book off the floor that the true owner has dropped—cannot reasonably give rise to any claim of a lien for value added. Particularly in the case of land, a person who merely takes possession typically adds no appreciable value to the land, and would hence acquire no property right in the land under a scheme that ignored de minimus additions to value. Epstein might have openly defended a claim that minimal labor was enough to create a property right, but in doing so he would have highlighted how far he had deviated from Locke's natural-rights justification for property, in which the protection of labor was a sine qua non element. On the other hand, Epstein does claim at one point, without elaboration and in apparent contradiction to his other statements, that "possession does not come without an expenditure of resources." See EPSTEIN, TAKINGS, supra note 33, at 61. "Think what would happen," he asks, "if the rule were the first one to look at property could claim to be its owner." Id. Yet we are left to wonder what further steps are involved in taking first possession of property (staking boundaries? fencing? excluding others?). Moreover, Epstein seems to agree that government can claim ownership of entire regions of land based on first possession, and to grant valid titles to the land, before anyone has ever even looked at the land. See Epstein, Possession as the Root of Title, supra, at 1242 n.27.

Though Epstein presumably understood full well the importance of labor in Locke's natural-rights reasoning, he does make occasional statements that suggest otherwise. See, e.g., id. at 1227 (noting labor theory intended merely "to aid the theory that possession is the root of title"). Return to text.

[51] EPSTEIN, TAKINGS, supra note 33, at 11. Return to text.

[52] See id. Return to text.

[53] See id. at 5. Epstein's initially grounds his argument in natural rights reasoning. "The political tradition in which I operate, and to which the takings clause itself is bound, rests upon a theory of 'natural rights.'" Id. "The question of governance is how the natural rights over labor and property can be preserved in form and enhanced in value by the exercise of political power." Id. at 3. Return to text.

[54] See id. at 217. Epstein's earlier "qualified defense" of first possession, id. at 1238-43, is couched in utilitarian terms, and his criticisms of Locke's theory would seem logically to undercut any labor-related theory of natural rights in property. In TAKINGS, however, he expressly notes that "one is loathe to adopt a theory of individual rights that rests solely upon the shifting sands of utilitarian calculation." Id. at 335. Return to text.

[55] See id. at 11. "What is lost to late-comers from the world of acquisition is provided for in the world of trade and commerce for the betterment of those who did not acquire anything from the original commons." Id. Return to text.

[56] Id. at 10 ("a Lockean, like myself . . ."). See also Duncan, supra note 28 (usefully critiquing this larger Lockean tradition). Return to text.

[57] See TWO TREATISES, supra note 13, at 308-09. Return to text.

[58] See, e.g., Richard A. Epstein, The Static Conception of the Common Law, 9 J. LEGAL STUD. 253, 258 (1980); EPSTEIN, TAKINGS, supra note 33, at 24-30, 60-61. Return to text.

[59] Epstein pays homage to "the classical common law" throughout his book. EPSTEIN, TAKINGS, supra note 33, at vii passim. Return to text.

[60] See Epstein, The Static Conception of the Common Law, supra note 58, at 258. Return to text.

[61] Epstein presents his evaluation of competing risks in supra note 50, at 1239 (because of dangers of "extensive and continuous state control," it is "[b]etter to begin with a system that places wealth in private hands"). Return to text.

[62] See, e.g., EPSTEIN, TAKINGS, supra note 33, at ix ("Statements about groups of individuals must be translated into statements about individuals."), 13 ("Every transaction between the state and the individual can thus be understood as a transaction between private individuals, some of whom have the mantle of sovereignty while others do not."). Return to text.

[63] Fred Bosselman usefully considers Justice Scalia's writings on property in FRED BOSSELMAN, Scalia on Land, in AFTER LUCAS: LAND USE REGULATION AND THE TAKING OF PROPERTY WITHOUT COMPENSATION 82 (David Callies ed., 1993) and in Four Land Ethics: Order, Reform, Responsibility, Opportunity, 24 ENVTL. L. 1439 (1994) [hereinafter Bosselman, Four Land Ethics]. My comments on Justice Scalia borrow extensively from Professor Bosselman's work. Return to text.

[64] See Bosselman, Four Land Ethics, supra note 63, at 1500 n.255. Return to text.

[65] See Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1028 n.15 (1992). Return to text.

[66] See id. Return to text.

[67] See id. at 1019 n.8 ("our prior takings cases evince an abiding concern for the productive use of, and economic investment in, land."). Return to text.

[68] See U.S. CONST. amend. XIV, § 1. Return to text.

[69] See, e.g., Lucas, 505 U.S. at 1030-32 (protecting expectations of owner of vacant land). Return to text.

[70] See Bosselman, Four Land Ethics, supra note 63, at 1485-1506 (discussing the importance to Scalia of preserving economic opportunities). Return to text.

[71] See Bosselman, Four Land Ethics, supra note 63, at 1501 & n.256 (contrasting Justice Scalia's tradition-focused thought with libertarianism). Return to text.

[72] See Lucas, 505 U.S. at 1029 (restricting state power in total-deprivation cases to "background principles" of property law). Return to text.

[73] See Lucas, 505 U.S. at 1028; Nollan v. California Coastal Comm'n, 483 U.S. 825, 833 n.2 (1987) ("the right to build on one's own property . . . cannot remotely be described as a 'governmental benefit.'"). Dissenting in Lucas, Justice Blackmun took strong issue with Justice Scalia's history. See Lucas, 505 U.S. at 1055-56 (Blackmun, J., dissenting) ("It is not clear from the Court's opinion where our 'historical compact' or 'citizen's understanding' comes from, but it does not appear to be history."). Return to text.

[74] See id. at 1030-31 (takings inquiry should focus on "the degree of harm to public lands and resources, or adjacent private property posed by the claimant's proposed activities"); Babbitt v. Sweet Home Chapter, 515 U.S. 687, 714 (1995) (Scalia, J., dissenting) (opposing regulatory measures to protect endangered species wildlife habitat on private lands). Return to text.

[75] See e.g., EPSTEIN, TAKINGS, supra note 33, at 120. Return to text.

[76] See Bosselman, Four Land Ethics, supra note 63, at 1503-05 & nn.266-68. Return to text.

[77] See Nollan, 483 U.S. at 828. Return to text.

[78] See id. at 827. Return to text.

[79] See id. at 831. Return to text.

[80] See id. at 841. Return to text.

[81] See Lucas, 505 U.S. at 1006-07. Return to text.

[82] See id. at 1007-08. Return to text.

[83] See id. Return to text.

[84] See id. at 1029-30. Return to text.

[85] See id. at 1034. Return to text.

[86] See id. at 1030. Return to text.

[87] See id. at 1018-19. Return to text.

[88] See id. at 1036 (Blackmun, J., dissenting), 1061 (Stevens, J., dissenting). Return to text.

[89] See id. at 1070-71 (Stevens, J., dissenting). Return to text.

[90] See, e.g., id. at 1018 (fear that legislature would press private property "into some form of public service under the guise of mitigating serious public harm"), 1028 n.14 (possibility of legislation "plundering landowners generally"); Stevens v. City of Cannon Beach, 505 U.S. 1207 (1994) (displaying deep distrust of state common law courts). Return to text.

[91] See Lucas, 505 U.S. at 1018. This fear runs throughout Justice Scalia's opinions, particularly in Babbitt, Cannon, Lucas, and Nollan. Return to text.

[92] Laura S. Underkuffler-Freund usefully considers this need, in real and symbolic terms, in Takings and the Nature of Property, 9 CAND. J. L. & JURIS. 161 (1996). Return to text.

[93] In his Lucas dissent, Justice Blackmun draws upon historical sources from earlier periods, including the late eighteenth century. See Lucas 505 U.S. at 1055-60. The early nineteenth century experience is considered in WILLIAM J. NOVAK, THE PEOPLE'S WELFARE: LAW & REGULATION IN NINETEENTH CENTURY AMERICA (1996); the early regulatory tradition is surveyed in John F. Hart, Colonial Land Use Law and Its Significance for Modern Takings Doctrine, 109 HARV. L. REV. 1252 (1996). Even Justice Scalia's focus on the late nineteenth century is skewed by its underappreciation of the continuing vibrancy of legal doctrines promoting the common good. Those doctrines are considered in Harry N. Scheiber, Public Rights and the Rule of Law in American Legal History, 72 CAL. L. REV. 217 (1984). Return to text.

[94] Justice Stevens raised this prospect in his Lucas dissent ("The Court's holding today effectively freezes the State's common law, denying the legislature much of its traditional power to revise the law governing the rights and uses of property."). See Lucas, 505 U.S. at 1068-69. Return to text.

[95] Recent relevant writings by Professor Sax include The Ecosystem Approach: New Departures for Land and Water, 24 ECOLOGY L. Q. 883 (1997); Using Property Rights to Attack Environmental Protection, 14 PACE ENVTL. L. REV. 1 (1996); Takings Legislation: Where It Stands and What is Next, 23 ECOLOGY L. Q. 509 (1996); Understanding Transfers: Community Rights and the Privatization of Water, 1 WEST-N.W. 13 (1994); Property Rights and the Economy of Nature: Understanding Lucas v. South Carolina Coastal Council, 45 STAN. L. REV. 1433 (1993). Useful earlier reviews of Richard Epstein's work by Professor Sax include Takings, 53 U. CHI. L. REV. 279 (1986) and Some Thoughts on the Decline of Private Property, 58 WASH. L. REV. 481 (1983). Return to text.

[96] Joseph Singer's relevant recent works include his PROPERTY LAW: RULES POLICIES, AND PRACTICES (2d ed. 1997); No Right to Exclude: Public Accommodations and Private Property, 90 NW. U. L. REV. 1283 (1996); The Social Origins of Property (with Jack M. Beerman), 6 CAN. J. L. & JURIS. 217, 228 (1993) [hereinafter Singer, The Social Origins]; Sovereignty and Property, 86 NW. U. L. REV. 1 (1991); The Reliance Interest in Property, 40 STAN. L. REV. 611, 653 (1988). Return to text.

[97] Among the many useful contributions to this perspective are Lynda L. Butler, Private Land Use, Changing Public Values, and Notions of Relativity, 1992 BYU L. REV. 629; T. Nicolaus Tideman, Takings, Moral Evolution, and Justice, 88 COLUM. L. REV. 1714 (1988); Duncan, supra note 28, at 1129; Poirer, supra note 28, at 66. Return to text.

[98] Leopold's comments on ownership principally appear in his A SAND COUNTY ALMANAC AND SKETCHES HERE AND THERE (1949) and Round River, in THE RIVER OF THE MOTHER GOD AND OTHER ESSAYS (1953); some of his most mature comments, however, appear in inaccessible essays and letters. Although Leopold's ideas are ably surveyed in Curt Meine's biography, ALDO LEOPOLD: HIS LIFE AND WORK (1988), his evolving understandings of private property rights await a more extended and focused treatment. Return to text.

[99] One illustration is presented in WILLIAM CRONON, CHANGES IN THE LAND: INDIANS, COLONISTS, AND THE ECOLOGY OF NEW ENGLAND (1983). Return to text.

[100] See Singer, The Social Origins, supra note 96, at 229. Return to text.

[101] See id. at 228 ("Because property is socially and politically constructed, the scope of property rights changes over time as social conditions and relationships change."). Return to text.

[102] See id. ("The police power embodies the community's ability to regulate and alter the scope of entitlements over time as their social meaning changes. This power to change the scope of property rights is necessary to preserve their social function."). Return to text.

[103] See, e.g., Joseph Sax, The Ecosystem Approach, supra note 95. The interdependence of land uses has been a particular theme of evolutionary writers focused on ecological issues. A fine introduction to that growing body of scholarship is Terry W. Frazier, The Green Alternative to Classical Liberal Property Theory, 20 VT. L. REV. 299 (1995). Return to text.

[104] The public trust idea has been a recurring subject of interest for Professor Sax since his early influential work on the subject. See, e.g., Joseph Sax, Liberating the Public Trust Doctrine from Its Historical Shackles, 14 U.C. DAVIS L. REV. 185 (1980); Joseph Sax, The Public Trust Doctrine in Natural Resources Law: Effective Judicial Intervention, 68 MICH. L. REV. 471 (1970). Return to text.

[105] See, e.g., Joseph Sax, Takings Legislation: Where It Stands and What Is Next, supra note 69; Joseph Singer, The Social Origins, supra note 96. Return to text.

[106] See note 13, supra; Michael Walzer, The Communitarian Critique of Liberalism, in NEW COMMUNITARIAN THINKING: PERSONS, VIRTUES, INSTITUTIONS, AND COMMUNITIES 52 (Amitai Etzioni ed., 1995). Return to text.

[107] See Duncan, supra note 28, at 1137; Hart, supra note 93, at 1281; Louise O. Halper, Why the Nuisance Knot Can't Undo the Takings Muddle, 28 IND. L. REV. 329 (1995); Martin S. Flaherty, History "Lite" in Modern American Constitutionalism, 95 COLUM. L. REV. 523 (1995); James M. McElfish Jr., Property Rights, Property Roots: Rediscovering the Basis for Legal Protection of the Environment, 24 E.L.R. (NEWS & ANALYSIS) 10231 (1994); John A Humbach, Evolving Thresholds of Nuisance and the Takings Clause, 18 COLUM. J. ENVTL. L. 1 (1993); Harry N. Scheiber, The Jurisprudence-and Mythology-of Eminent Domain in American Legal History, in LIBERTY, PROPERTY, AND GOVERNMENT (Ellen Frankel Paul & Howard Dickman eds., 1989); Thomas C. Grey, The Malthusian Constitution, 41 U. MIAMI L. REV. 21 (1986). Return to text.

[108] See Carol M. Rose, Property as the Keystone Right?, 71 NOTRE DAME L. REV. 329, 363 (1996) ("Virtually all peoples of whom we have any knowledge have invented property regimes for themselves in order to manage the resources they find important." (citations omitted)); Francis S. Philbrick, Changing Conceptions of Property in Law, 86 U. PA. L. REV. 691, 692 (1938) ("Wherever man is found, we find both individual ownership and ownership by family groups, large or small, and other associations; with rarer instances of what appears to be true community ownership of particular things."). Return to text.

[109] See Just v. Marinette County, 201 N.W.2d 761 (1972), cited in EPSTEIN, TAKINGS, supra note 33, at 123; Lucas, 505 U.S. at 1059 (Blackmun, J., dissenting). Return to text.

[110] See Just, 201 N.W.2d at 767. Return to text.

[111] See Just, 201 N.W.2d at 768. Return to text.

[112] Id. Return to text.

[113] Id. Return to text.

[114] No full study of Abbey's thought yet exists. His life is recounted in JAMES BISHOP, JR., EPITAPH FOR A DESERT ANARCHIST: THE LIFE AND LEGACY OF EDWARD ABBEY (1994). Much of Abbey's work is considered in ANN RONALD, THE NEW WEST OF EDWARD ABBEY (1982). Return to text.

[115] EDWARD ABBEY, DESERT SOLITAIRE: A SEASON IN THE WILDERNESS 185 (Ballantine ed. 1971). Return to text.