Evelyn Hildebrand, Incentive, Entitlement, and the Ineffective Subsidization of the Housing Market, 18 Ave Maria L. Rev. 136 (2020)
Leaving aside the compelling critique that the LIHTC is ineffective without being coupled with rental assistance, the LIHTC has failed because it cannot move low-income people towards success and independent stability. Instead, the credit's structure actually disincentivizes work while attempting to ensure the equal outcome of housing for all.261 Likewise, the Rent Relief Act ignores how the incentive operates in the function of the free market and will lead the housing market down the same road that healthcare and education subsidization have both taken.262 Access to healthcare, education, and housing are important to Americans; however, the only equal outcome well-intentioned government intervention, built on a structure of entitlement, can remotely ensure is prohibitively increased costs charged either directly or indirectly to the taxpayer. The question of housing is certainly an important one--and the answer lies in recognizing and rewarding work by crafting policy that understands the importance of personal responsibility. The housing market is no exception to the general rule: government can ensure equal opportunity, but it cannot and should not ensure equal outcome.
J. Kirkland Miller and Maureen M. Milliron, Ownership of Property and Adverse Possession from the Catholic Perspective: You've Got to Have (Good) Faith!, 20 Ave Maria L. Rev. 125 (2022)
Arguments in favor of requiring the bad faith adverse possessor to compensate the dispossessed title holder for land knowingly taken have been recommended by several scholars over the years; 176however, none have addressed this issue from the Catholic perspective. Requiring good faith, or, in cases of bad faith, that the knowing trespasser pay for the land, underscores the sense of right and conscience that underpins the natural law and is written on the heart of every man. For "right and justice [are] ultimately . . . laws of the moral world order which flow from the qualities of God, which make themselves known as such by the organ of conscience . . . as the will of God and as a power which transcends the human being." 177
Brigid Sawyer, Comment: Whose Highest and Best? Including Economic Development and Individual Landownership in the Highest and Best Use Standard, 70 Cath. U. L. Rev. 289 (2021)
The revised definition of highest and best allows for the competing values of economic potential and individual rights to the property to be analyzed together without placing one superior to the other. Superiority of economic use was one driving motivation behind taking Native American land and allowing economic development to become a public use under eminent domain. With the new definition of highest and best use, we can allow economic development to be a factor in eminent domain valuation without allowing it to be the only factor. When highest and best use provides a concrete and accurate representation of both conflicting interests, we remain true to founding philosophies of property rights, and allow the valuation system to consider both of these goals more comprehensively.
The creation of this Comment would not be possible without expert guidance and support of Professor Lucia A. Silecchia, for whom the author is extremely grateful.
Jeremy N. Sheff, Jefferson's Taper, 73 SMU L. Rev. 299 (2020)
Sheff is a professor of law, St. John's University. This Article reports a new discovery concerning the intellectual genealogy of one of American intellectual property law's most important texts. The text is Thomas Jefferson's often-cited letter to Isaac McPherson regarding the absence of a natural right of property in inventions, metaphorically illustrated by a "taper" that spreads light from one person to another without diminishing the light at its source. I demonstrate that Thomas Jefferson likely copied this Parable of the Taper from a nearly identical passage in Cicero'sDe Officiis , and I show how this borrowing situates Jefferson's thoughts on intellectual property firmly within a natural law theory that others have cited as inconsistent with Jefferson's views. I further demonstrate how that natural law theory rests on a pre-Enlightenment Classical Tradition of distributive justice in which distribution of resources is a matter of private judgment guided by a principle of proportionality to the merit of the recipient - a view that is at odds with the post-Enlightenment Modern Tradition of distributive justice as a collective social obligation that proceeds from an initial assumption of human political equality. Jefferson's lifetime correlates with the historical pivot from the Classical to the Modern Tradition, but modern readings of the Parable of the Taper, being grounded in the Modern Tradition, ignore this historical context. Such readings cast Jefferson as a proto-utilitarian at odds with his Lockean contemporaries, who supposedly recognized property as a natural right. I argue that, to the contrary, Jefferson's Taper should be read in light of the Classical Tradition from which he borrowed and the Baconian scientific model he admired, such that it not only fits comfortably within a natural law framework, but also points the way toward a novel natural law-based argument that inventors and other knowledge creators actually have moral duties to share their knowledge with their fellow human beings.
"For upon every invention of value, we erect a statue to the inventor, and give him a liberal and honourable reward." 1
--Francis Bacon
Lucia A. Silecchia, Property and Moral Responsibilities: Some Reflections on Modern Catholic Social Theory, 9 Tex. A&M J. Prop. L. 733 (2023)
Professor Eric Claeys's forthcoming book, Natural Property Rights, offers a deep perspective on property rights principles. However, while the law tends to focus--as I believe it must--on property rights, rights are inextricably intertwined with duties or responsibilities. The natural rights framework for property is, as Claeys says, “good enough for government work.” It reflects a principled way for the government to allocate property rights and use the law to protect them.
However, it is necessary to look beyond what is desirable for government to protect through law. Other sources propose parameters for reasoned use of property with an emphasis on duties. The Catholic social tradition offers a perspective on the moral duties and responsibilities that accompany property rights. This is not a substitute for natural property rights and their robust legal protection. Rather, it is a way to supplement legally defined rights with a moral perspective stressing the correlative duties and responsibilities that come with those rights. This paper argues that the more focus there is on a rights-based view of property from a legal perspective, the more important it is to look at moral frameworks to promote a healthy and holistic vision of property. Modern Catholic social theory offers just such a framework.
Sam Spiegelman & Gregory C. Sisk, Cedar Point: Lockean Property and the Search for A Lost Liberalism, Cato Sup. Ct. Rev., 2020-2021, at 165
Cedar Point moves regulatory takings in a direction that accords far better with the history of Anglo-American property law than does Pennsylvania Coal--at least as that ruling has been understood in the post-Penn Central cases. Instead of balancing competing values, it focuses on the claimed right or interest interfered with, asking whether the ancient common law or evolving “background principles” of state law removes that claimed right or interest from the ambit of ownership, almost invariably because its use does or will produce a public harm. Still, Cedar Point omitted some crucial pieces from the latter-day takings puzzle. What is the content, scope, and elasticity of the “exceptions” to the otherwise absolute character of ownership? Cedar Point recites a few examples of when the state may appear to take the right to exclude but is in fact exercising its legitimate police powers. But the majority does not discover in those the thread of the classical liberal approach to regulations, by which the question is whether or not the regulation stops or prevents a harm, not whether it physically deprives an owner of their property. Its distinguishing of Pruneyard demonstrates this oversight. Despite arguments that it is too subjective to be workable,117 the harm/benefit distinction controlled much of the public-private relationship for centuries118 and aligns far better with Locke's social contract--with *190 its ultimate end of preserving individual life, liberty, and estates--than does the modern positivistic style. The survival of the Lockean view of property could well depend upon whether the Court has in it the want and wherewithal to move its takings jurisprudence back in a classical liberal direction.
