Most constitutions protect property in various ways, whether it be in requiring hearings before property is taken or disturbed, guaranteeing compensation in the event of takings, or imposing substantive limitations on disproportionate interferences with property rights. Such constitutional rights create dilemmas about how to define and identify "property." Is property defined and identified as a matter of constitutional law, or is it defined and identified as a matter of subconstitutional law? The former option puts the matter in the hands of judges; the latter option puts it in the hands of the legislature or judges acting in a subconstitutional capacity subject to legislative revision. The matter is especially prominent in federal systems, where constitutional rights may exist at the national level and subconstitutional property law may be located at the state level. But the problems are also present in a unitary legal system. The dilemmas become especially acute if property is defined and identified as a matter of subconstitutional law, and allegations are made that this law has been manipulated in order to deny constitutional protection of property. This give rise to what has been called the problem of "judicial takings," where judicial modification of subconstitutional property law is claimed to create a constitutional violation by impairing constitutional property rights. The course will identify several contexts in which problems of constitutional property have arisen, and will consider various solutions offered by judges and scholars.
Grades will be based on research papers and class participation.