Today I'm attending the Claremont Institute conference on Defending the Constitution: Property Rights & the New Regulation. Topics to be covered span from property theory, zoning, land-use controls and "smart growth," among other things. I will update this post throughout the day to comment on the proceedings.

As a prelude to the discussion of contemporary regulation of property, Claremont fellow Thomas West summarizes the founders' views of property. He notes that some of the founders may have overestimated the extent to which a free society requires the ownership of land, and discussed the emerging recognition of the importance of self-ownership. The ensuing discussion stressed the extent to which property, as an institution, creates common interests among both rich and poor. As Hayek observed, property rights are scarcely less important for those who do not own property than for those who do not.

GMU law professor Steven Eagle follows detailing the gradual, but clear, decline of private property rights from the founding period to the modern era. Constitutional protection of property ebbed after the Civil War, but the real decline came during the Progressive Era with the rise of comprehensive zoning. Initially defended as a means of controlling nuisances and other "harmful uses" of land, property regulation metastasized into comprehensive land-use planning, including the use of eminent domain and other tools to shape and control (read: centrally plan) entire communities, if not cities.

Chapman law professor John Eastman notes that property rights, properly understood, have never included the right to harm neighboring properties. Therefore, constitutional protection or property rights does not protect the "right to pollute" nor does it simply let everyone do what he or she wants to do.

Eastman's disparagement of zoning and defense of common law nuisance rules provokes a vigorous exchange on whether reasonable zoning regimes can resolve landowner disputes more efficiently. While nuisance rules are appealing in principle, Reason's Sam Staley observes, the transaction costs of common law enforcement may be prohibitively high. My perspective is that the relative level of transaction costs is a function of the stability of the underlying rule, not whether it's generated by common law courts or legislatures. Eric Claeys notes that without a workable theory of what constitutes a "harm," nuisance law is unworkable, as it will be unclear what is actionable and what is not. Nuisance law works, however, when we recognize that I have a cause of action for those things that hit me (so to speak) on my property, but not those things that I simply do not prefer. Randal O'Toole suggests there is not simply a binary choice between nuisance and zoning, given the potential for private associations to address actual and potential land-use conflicts.

Another observation I would make on the discussion is the common comparison of an idealized, transaction-cost free, stable and predictable zoning regime with an evolving and arbitrary nuisance regime. In practice, of course, nuisance regimes can be very predictable, at least when dealing with familiar harms, and zoning regimes can be very variable and unpredictable, in no small part due to politics -- which are inseparable from any reuglatory regime in a democratic polity.

At lunch, Orange County Supervisor Chris Norby discussed the problem of "Redevelopment" agencies. Based on the study Redevelopment: The Unknown Government (available here), Norby's talk discussed how local redvelopment agencies acquire debt without public approval, subsidize corporate development, and finance eminent domain throughout California. Although redevelopment is typically promoted to eliminate "blight" and foster economic growth, Norby pointed out that per capita income seems to be growing faster in cities without redevelopment authorities.

Notre Dame architecture professor Carroll William Westfall makes the point, which cannot be repeated enough, that one consequence of modern zoning was to make traditional urban development illegal. The traditional downtowns and main streets could not be recreated in the suburbs due to government regulation. He further makes the interesting point that if the "New Urbanism" is to be successful at recreating traditional urban spaces, it must rely upon traditional architecture.

The Manhattan Institute's Henry Olsen notes that many proponents of "New Urbanism" beleive that such development promotes civic virtue, yet suburban-style development and widespread car ownership are increasingly the norm around the world. This suggests that many people prefer to live that way because such living provides other benefits. Olsen also ponders whether it will produce the results its proponents claim if it is imposed from above, as opposed to arising organically within individual communities. Insofar as it is mandated, it also furthers the erosion of property rights.