Academic journal article Environmental Law

Disciplining Utopia: The Future of Cooperative Landholding

Academic journal article Environmental Law

Disciplining Utopia: The Future of Cooperative Landholding

Article excerpt

I.    INTRODUCTION                                               454 II.   TURNING BACK THE CLOCK: THE CHALLENGE OF       RE-COMMUNALIZING LAND                                      467       A. The American Tradition of Utopian Land                  467       B. The Rise and Fall of Social Activism in          American Intentional Communities                        471       C. The Flawed Imagination of Traditional          Communal Governance                                     479 III.  THE COMPARATIVE CONTINUUMS OF COLLECTIVE LAND HOLDING      483       A. Community and Land as Global Conundrum                  483       B. Participatory Norms and Communitarian Land Holding      486          1. Community Through the Corporate Form                 486          2. The Corporatization of Community Land Trusts         492       C. Corporate Flexibility or Fiduciary Self-Discipline      500 IV.   CONCLUSION                                                 505 

I. INTRODUCTION

The legal and economic history of the United States is far more radical than is generally acknowledged today. Many ideas now considered settled about what is both genuinely American and "natural" as to how the nation regulates core aspects of its society were very much in contest at the turn of the twentieth century. The progressive dislocations of industrial capitalism generated a pace of social change which unfurled far faster than the traditional mechanisms of law could track, especially in order to serve the needs of less enfranchised members of society. (1)

With growing intensity over the nineteenth century, immigration, urbanization, and the end of slavery unsettled the spatial and demographic categories which had previously shaped the structure and composition of communities across the nation. One result of this tumult was a rise in public and private initiatives to manage and channel these changes into new legal forms. From religion to work, the syncretism of ideas old and new led to conflict and experimentation far more diverse than what is now considered normatively "American." And no realm of law witnessed more radical experiments than that of property. (2)

It is not possible to fully catalog here this diversity of legal thought and practice, but its consistent volume establishes that the spirit of experimentation in property is a long-standing American tradition. Even before the more intense industrialization of the American economy, religious groups had come to the United States to attempt to recreate their imagined utopias of communal work and land as part of their view of the American promise. (3) The accessibility of land in the United States was historically easier than it had become in Europe--at least once indigenous claims were nullified or marginalized. If one had the resources do to so, exit to unsettled land to try and recreate a new, or recapture an old, system of land holding appeared in practical reach. If local political will existed, or state regulation was sufficiently indifferent, this same recreation could be attempted in urbanized areas.

The historical relationship of government to private land in America has also been one of recurrent intervention, as evident in the foundational acts of eminent domain through which land ownership was reordered and redistributed from colonial times onwards. (4) For a non-communist nation, the United States still has internationally high levels of public land ownership, (5) the scale of which has led to numerous administrative creations and re-workings at the state and federal levels. (6) Today the United States Department of the Interior and the United States Department of Agriculture oversee diverse land management practices for wide swaths of national territory. (7) The central role of public stewardship over formal and residual public land drove Joseph Sax's popularization of the public trust doctrine to grapple with the downsides of ignoring this historical legacy. …

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