James Burling reviews Property Matters by James Delong

Environmental Law & Property Rights Practice Group Newsletter - Volume 1, Issue 3, Fall 1997

December 1, 1997

James S. Burling

Free Press (390 pages)

On February 26, 1997, Georgetown Professor Richard Lazarus found himself before the United States Supreme Court making a strange argument. Mrs. Bernadine Suitum, Lazarus argued, was at fault for refusing to accept a few transferable development credits that the Tahoe Regional Planning Authority offered her in place of a permit to build her retirement home. According to Lazarus, "she created the hardship" by not accepting the credits.

As his argument careened off in various directions trying to explain why the Court should not, in the words of Justice O'Connor, "give this poor elderly woman her day in Court," it became evident that Professor Lazarus was playing out his role as the anti-champion of property rights. In response to arguments that liberty and property rights are inseparable, Lazarus once wrote: "Nor does the Court appreciate that over the past century our relationship to the land has fundamentally changed. Land is now a highly regulated commodity, and its ownership is no longer the touchstone of human autonomy or the source of individual freedom."1

If Professor Lazarus is an anti-champion of property rights, James DeLong is one of its most ardent champions. In Property Matters, DeLong presents a powerful case that property rights really do matter in America. Distressingly, however, DeLong argues that the biggest threat to property rights comes from our own government.

This is not a book for those seeking a dense and heavily footnoted tome on law and economics or a similarly opaque exercise in jargon wrestling. DeLong fervently believes that property rights are a cornerstone of American freedom, and that the primary beneficiaries of property rights are not the rich and privileged but the ordinary and average. This book is written for laymen -- those who will benefit the most from a keen and lay understanding of the nature of property rights, rather than those who merely study such things from a distance.

Vignettes of those who actually benefit from the preservation of property, from DeLong's homesteading (and trespassing) ancestors, to undersea treasure hunters, to the "growing nerd class" of software designers, are liberally interspersed in DeLong's narrative on the nature and history of property in America. DeLong begins by tracing the intellectual origins of the American tradition of property rights from Locke to the American Revolution and into modern times. For those already knowledgeable about the tension between our Lockean traditions and those of Hobbes, there will be little in the way of new insights in the introductory chapters. However, for those relatively new to the game, and for those grassroots activists in the trenches, this book will provide a cogent introduction to the intellectual origins of their battles.

DeLong picks two convenient targets for an extended examination of how government policies have become unnecessarily hostile to property rights and how this hostility undermines the very goal of the government programs at issue: the endangered species act and wetlands regulations. DeLong adds his voice to the growing chorus that suggests that when reform does come to these programs, it should take economic reality and property rights into account. DeLong is particularly critical of the way these two programs have evolved administratively without any serious Congressional oversight. As these programs have expanded with every new court decision, they have abandoned any sense of political compromise and pretense of cost-benefit rationality, leading to unchecked costs being imposed on the public. It has become, in DeLong's words, "the environmental equivalent of a tank in every garage."

DeLong also takes a long hard look at western land and environmental policies, and, in the process, he may not make many new friends with either the left-wing environmental community or some elements of the "wise use" movement. The vast expanse of federally controlled western lands are not well managed. DeLong falls squarely into the camp of free market environmentalism championed by such groups as the Competitive Enterprise Institute (with whom DeLong is affiliated), the Political Economy Research Center, and more recently by the Heritage Foundation. Some land, DeLong argues, should be administered as "national commons" with private property claims of certain stakeholders respected. Some land, including much of the range land, should be sold off. For other land, the government should act as a "profit-maximizing landlord, auctioning off the resources for a market price." Water rights should be converted into a market system. Unfortunately, DeLong does not provide a blueprint as to how any of this can be accomplished. DeLong does not pander to the wise use movement. He is especially critical of federal water policies that resulted in enormous costs for what have been, in many cases, only marginal benefits. For many western ranchers and farmers, cheap water is seen as a birthright. DeLong begs to differ, noting in one passage, correctly, that "no legal theory supports any kind of property right to have the government maintain any given level of water in a reservoir," and elsewhere scoffs at the notion that one can have a property right in government action.

Zoning is anathema to DeLong, who rightly points out the many absurdities that zoning in America has engendered. Again, while this is hardly a comprehensive treatment, it is a decent introduction for those not otherwise acquainted the area. Having spent too many years fighting the zoning game in the trenches, I could perhaps quibble with a few of DeLong's generalizations, but suffice it to say, I admire DeLong's ability to provide the same property rights foundation to an analysis of environmental issues as he does zoning.

What is the solution to the mess? It may come as a disappointment to lawyers, but DeLong clearly does not see attorneys as providing the solution. In what is perhaps the most provocative (to attorneys at any rate) sections of the book, DeLong takes a few well aimed pot-shots at the profession. He describes property rights litigation as "parties [that] toss quotations at each other, like lobbing mortar shells at an unseen target in the hope that something will hit." As he continues with describing each lobbed aphorism (e.g., "average reciprocity of advantage" versus "justice and fairness"), I had an uneasy feeling of deja vu. He dismisses government lawyers as having "a mush reliance on uncontrolled government whim, faith in discredited doctrines of central planning, and sentimentality." And finally, my favorite, "the political class is increasingly composed of lawyers, and this is a marriage made in hell."

I have spent years litigating property rights. It has been a largely frustrating exercise punctuated by a few moments of great exhilaration. DeLong puts the whole disarray of government enterprise into a property rights crucible and points a way out: more property rights. This book is a refreshingly good read, and stands in stark contrast to my usual reading fare -- briefs written by government lawyers who would follow Lazarus' vision to the end of property.

*James Burling is Director of Property Rights, Pacific Legal Foundation.

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   1. Richard J. Lazarus, Putting the Correct Spin on Lucus, 54 Stan.L. Rev. 1411, 1421 (1993).