"Private Property and the Constitution" by Bruce A. Ackerman

Private Property and the Constitution Bruce A. Ackerman

Publication date:
01 Jul 1978
314 pages: 203 x 127 x 17mm
black & white illustrations

The proper construction of the compensation clause of the Constitution has emerged as the central legal issue of the environmental revolution, as property owners have challenged a steady stream of environmental statutes that have cut deeply into traditional notions of property rights. When may they justly demand that the state compensate them for the sacrifices they are called upon to make for the common good? Ackerman argues that there is more at stake in the present wave of litigation than even the future shape of environmental law in the United States. To frame an adequate response, lawyers must come to terms with an analytic conflict that implicates the nature of modern legal thought itself. Ackerman expresses this conflict in terms of two opposed ideal types---Scientific Policymaking and Ordinary Observing---and sketches the very different way in which these competing approaches understand the compensation question. He also tries to demonstrate that the confusion of current compensation doctrine is a product of the legal profession's failure to choose between these two modes of legal analysis. He concludes by exploring the large implications of such a choice---relating the conflict between Scientific Policymaking and Ordinary Observing to fundamental issues in economic analysis, political theory, metaethics, and the philosophy of language.

"Ackerman's analysis reveals that the incoherent state of the law of just compensation arises from the grounding of the traditional legal doctrine in ordinary observation, while the sophisticated writings of legal scholars and judicial opinions are expressed in scientific policymaking terms. In an area of the law where darkness has lingered for so long, this book sheds new light."ÑLibrary Journal

"In this exercise of legal scholarship, Ackerman undertakes a reconsideration of compensation law in the context of vast changes about property and its uses posed by activist governments. In a word, compensation law is muddled. Conceptual and analytic conflicts abound. The author seeks to ntangle these through closely reasoned arguments. . . . The work is distinguished by the use of the contributions of, among others, legal scholars, philosophers, political theorists, and economic analysts. . . . Ackerman's extensive use of philosophical argument should delight students of political and legal theory."ÑThe Annals

"A welcome and significant addition to this growing body of literature. The intellectual problem which Professor Ackerman attempts to unravel is simply put: How is is that courts have responded to questions arising  under the 'taking' clause of the Fifth Amendment in such a confused, unsystematic, and unintelligible fashion? . . . Ackerman has provided an important starting point for a much-needed dialogue on the taking clause, and the patient reader will be well rewarded by a careful study of this stimulating book."ÑPeter Simmons, Real Estate Law Journal

"It is the clearest discussion of jurisprudence or legal process that I have read."ÑRichard A. Posner