Law's limits : the rule of law and the supply and demand of rights

What law is can be determined by the character of the institutions that make, interpret and enforce law. The interaction of these institutions moulds the supply of, and demand for, law. Focusing on this interaction in the context of US property rights law and the debates about private property and the rule of law, Komesar paints an unconventional picture of law and rights shifting and cycling as systemic factors, such as increasing numbers and complexity. This strain produces tough institutional choices and unexpected combinations of goals and institutions. It also frustrates the hopes for courts, rights and law embodied in notions such as the rule of law and constitutionalism. Although there may be an important role for law, rights and courts both in the US and abroad, it cannot be easily defined. This 2002 book proposes a way to define that role and to reform legal education and legal analysis. Contents 7 Preface 9 PART I. THE BASIC FRAMEWORK 11 1. Supply and Demand 13 2. The Spectrum of Rights 21 I. Boomer - The Common Law and Institutional Choice 22 A. The Market versus the Courts 22 B. The Political Process versus the Courts 26 C. Generating the Spectrum 29 II. Some General Lessons 33 III. Communities, Markests, Participation, and Methodology 37 IV. Conclusion 43 3. The Supply Side - The Little Engine of Law and Rights 45 I. The Adjudicative Process 45 II. Numbers, Complexity, and the Dynamics of Litigation 51 III. Numbers, Complexity, and Class Actions 55 IV. Conclusion 61 PART II. LAND USE AND RIGHTS 63 4. Zoning and its Discontents - Political Malfunction and Demand for Rights 65 I. Conflicting Versions of Under- and Overregulation 66 II. The Two-Force Model of Politics: Fear of the Few and Fear of the Many 70 III. Judicial Responses 80 IV. Conclusion 96 5. Just Compensation - The Problems of Judicial Pricing 98 I. The Limits of Lucas 99 II. The Proposals 103 III. The Demand Side: Just Compensation and Political Malfunction 104 IV. The Supply Side: The Courts and Just Compensation 109 V. The Strange World of Nollan and Dolan 116 VI. Conclusion 121 6. High Stakes Players and Hidden Markets 123 I. Focusing on Majoritarian Bias and Ending the Villain Hunt 124 II. Dealing with Majoritarian Bias 126 III. Conclusion 131 PART III. LAW'S LAWS 133 7. Theories of Property - From Coase to Communitarianism 135 I. The Evolution and Function of Property: The Economic Theory of Property Rights 136 II. The Search for Communities 145 III. Communites and Norms Meet Numbers and Complexity 154 IV. Conclusion 163 8. Numbers, Complexity, and the Rule of Law 166 I. Shifts and Cycles: The Decreasing Likelihood of Stable and Certain Law 167 II. Confronting the Supply Side: Images and Realities of Courts 175 III. Confronting the Demand Side: Communitarians versus the Rule of Law 180 IV. Conclusion 183 9. Changes 184 I. Changing Legal Analysis 184 II. Changing Legal Education and Discourse 187 III. Changing Economics 190 IV. Law Around the World 192 V. Law's Future 194 VI. Breaking the Cycle 196 References 201 Index 209

Focusing on U.S. property rights law and the notions of private property and the Rule of Law, this book paints an unconventional picture of law and rights in general. Law and rights shift and cycle as systematic factors like increasing numbers and complexity produce tough institutional choices and unexpected combinations of goals and institutions, such as private property best protected by the unconstrained political process and communitarian values best achieved through exit and atomistic markets. These forces also frustrate attempts to export the U.S. image of rights. Although there may be an important role for law, rights and courts both in the U.S. and abroad, it can not be easily defined. This book proposes a way to define that role and to change the way we look at law.

What law is can be determined by the character of the institutions that make, interpret and enforce law. The interaction of these institutions moulds the supply of, and demand for, law. Focusing on this interaction in the context of US property rights law and the debates about private property and the rule of law, Komesar paints an unconventional picture of law and rights shifting and cycling as systemic factors strain both supply and demand