Natural Resources Law Institute
Law and Society | Property Law and Real Estate
This lecture is divided into three parts. First, I will outline a critique of efficiency as it has functioned as the metanarrative underlying our basic current understanding of social institutions. A metanarrative is merely a legitimating background story rooted in the claim that it is the "story that can reveal the meaning of all stories." The claim I am making is that the standards of efficiency in common usage have operated in this way in questions of social policy. For government institutions, this is summed up in the popular claim of politicians that they will "run government like a business." The forgotten correlative is, of course, that government decisionmaking always involves issues of fairness as well as efficiency.
Second, drawing on this analysis, I will illustrate the political technique of the property rights advocates. This technique involves telling a story about property rights that personalizes and humanizes a drama in which the major characters include a big, impersonal government running out of control, and small, relatively powerless owners of private property. I also hope to reveal how this is a-story in which the powerful are cast in the unlikely role of victim. Here the story is how the successful, those who win in the market, are ruined by that gang of losers, the government. I will illustrate how this narrative construction defines certain arguments as out-of-bounds by limiting considerations of fairness to the effects of government decisionmaking on the current possessors of property.
Third, I will review the law on these issues to reveal the sources of the discontent and to examine the extent to which the evolution of the doctrine supports the claims of the property rights advocates. Here I will show that the issues are not trivial and are not just about wealth, but rather go to the heart of who we think we are as a people. That is precisely why this discussion matters.
Gerald Torres, "Taking and Giving: Police Power, Public Value, and Private Right", 26 Environmental Law (1996)