Academic journal article Vanderbilt Law Review

Overcoming Another Tragedy in New Orleans: Rebuilding in the Wake of Kelo and Act No. 851

Academic journal article Vanderbilt Law Review

Overcoming Another Tragedy in New Orleans: Rebuilding in the Wake of Kelo and Act No. 851

Article excerpt

I. Introduction

The questions are simple. Do you want to better protect the property rights of private citizens in Louisiana? Do you want to make sure government can no longer take your home for industrial development purposes? Do you want to ensure those protections in our state constitution? ... Voters in Louisiana have an opportunity to take an important step to ensure property-rights protections in the expropriation debate. I urge them to step up and act. It is act now or leave the expropriation issue to be decided by the courts or future unknown legislation. Do you really want to risk that?

Senator Joe McPherson1

Louisiana Senate District 29

During Hurricanes Katrina and Rita, thousands of Gulf Coast residents lost their homes, their possessions, their savings, and some, their lives. Those states hit hardest by the hurricanes have struggled to recover. In places like New Orleans, where hundreds of thousands of residents evacuated and may never return, uncertainty regarding the future of private property has become a fact of life. As the excerpt from Senator McPherson's letter indicates, arguably the single most critical question facing local and state governments trying to rebuild the devastated coast is how to encourage use of abandoned properties to spark the economy.

Michael A. Heller explores this question in an article that analyzes historical situations in which property has gone underused for long periods of time.2 American property law supports an owner's right to subdivide ownership in her property. According to Heller, however, beneath this seemingly free ability to divide ownership lies a subtle property law doctrine that prevents and abolishes excessive fragmentation and thus ensures that owners have the ability to put property to its most productive use.3 Heller elaborated on these general anti-fragmentation ideas with a theory he called the "tragedy of the anticommons."4

The tragedy of the anticommons is often described by comparison to the tragedy of the commons.5 In a commons, "multiple owners are each endowed with the privilege to use a given resource, and no one has the right to exclude another."6 When a commons is created, the given resource is prone to overuse because all parties have unlimited access to it.7 Anticommons property represents the mirror image of commons property; it is "a property regime in which multiple owners hold effective rights of exclusion in a scarce resource."8 In an anticommons, the given resource is prone to underuse because owners typically exercise their exclusionary rights and prevent others from using the land.9 The so-called tragedy of the anticommons occurs when the resource is under-consumed relative to the social optimum.10 Overcoming an existing tragedy of the anticommons requires bundling property rights, through either government or markets, into the hands of a smaller number of parties who will not prevent one another from using the property.11

Heller's theory deserves more attention in light of recent developments in constitutional law and the unique challenges facing governments and property owners in Louisiana after Hurricanes Katrina and Rita. In 2005, the Supreme Court released a controversial opinion in Kelo v. City of New London that arguably extended the government's already broad authority to take private property under its eminent domain power provided by the Fifth Amendment.12 The majority opinion, written by Justice Stevens, defined "public use" to allow governments to take property from individuals and sell it to private owners who intend to build hotels, restaurants, and retail and office space on the property.13 Claiming that the Court had long rejected a literal definition of "public use," the majority suggested that a taking for any "public purpose" satisfies the Fifth Amendment.14 In dissent, Justice O'Connor claimed that Kelo eviscerated constitutional protections by permitting a government to take property and transfer it to another private owner so long as that government thought that the second owner would put it to a use more beneficial to the community. …

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