Vol. 26 No. 4 (August 2016) pp. 65 – 70
PROPERTY RIGHTS AND NEOLIBERALISM: CULTURAL DEMANDS AND LEGAL ACTIONS, by Wayne V. McIntosh and Laura J. Hatcher (eds.). Farnham, UK: Ashgate, 2010. 234pp. Hardback $134.95. ISBN: 978-0-7546-7892-2.
Reviewed by Daniel Tagliarina, Department of Government and Politics, Utica College. Email: firstname.lastname@example.org.
Neoliberal efforts to reform government and property rights have been with us for a while now. KELO V. CITY OF NEW LONDON (2005) has become a neoliberal touchstone regarding the claimed irresponsible use of governmental power in violation of individual property rights. The KELO ruling sparked a widespread backlash that includes: actions by at least 42 states to change their eminent domain laws via statute or constitutional amendment (p. 71), close to 1,000 law review articles (based on a non-discerning LexisNexis search), a book-length journalistic account by Jeff Benedict titled LITTLE PINK HOUSE (2009), and a forthcoming feature-length film also titled LITTLE PINK HOUSE (Somin 2014). Clearly, the case touched a nerve. Moreover, it provided mobilization fodder for neoliberal causes that found willing partners in the Bush administration, leading to vast deregulation efforts that, in some people’s estimation, contributed to the Great Recession beginning in 2007 (e.g., Braedley and Luxton 2010).
While legal scholars generally agree that KELO did not mark any real departure from previous eminent domain precedent (p. 66), the case still stands out as an important moment in the neoliberal effort to strengthen individual property rights. I begin with KELO, because, to a large extent, that is where PROPERTY RIGHTS AND NEOLIBERALISM begins. While the volume is not only about KELO, the case does play a central role in many of the chapters, either as the explicit focus—as in Thorpe et al.’s and Wilkerson’s chapters—or an implicit role—as in Becher’s and Brisbin, Hunter, and Leyden’s chapters. In constructing the edited volume, McIntosh and Hatcher explicitly focus on property rights in the context of changing regulatory schemes, which is a focus that heretofore has been missing in the literature (p. 4). The chapters in this volume are all well-written, and draw upon quality evidence and relevant scholarship as they examine how law is changing in response to various neoliberal reform efforts. Moreover, the chapters contribute to the central theme by examining the effects of institutional contexts and cultures on the actual legal mobilization around property rights when what constitutes property—and how it should be conceptualized—is a moving target. The volume’s underlying cohesion is around our understanding of contemporary property rights.
PROPERTY RIGHTS AND NEOLIBERALISM is divided into three parts. Part I consists of four chapters, and is organized around questions of legal mobilization, eminent domain, and property rights. Part II offers a comparative analysis to the volume with three chapters that explore neoliberal efforts to create property rights where they did not previously exist (Henderson’s and Boggio’s chapters) or to limit governments’ ability to regulate property (Clark and Harrington’s chapter). Part III contains three chapters that takes a broader look within the United States context to see how non-judicial actors and contexts shape our understanding of property and the law surrounding property rights. These chapters, collectively address what the editors identify in the introduction as “three primary issues: (1) the contours and characteristics of property rights mobilization(s); (2) the degree to which property rights movements have influenced development [*66] of law in demonstrable ways; and (3) the broader cultural, social and economic implications of modern-era property rights litigation and legal mobilizations” (p. 4-5). While neoliberalism is one of the central organizing concepts for the edited volume, not all of the authors offer clear, comprehensible definitions of what they understand neoliberalism to be. This is not surprising as, in the words of the editors, neoliberalism is “notoriously difficult to define” (p. 2). To aid the uninitiated, the editors draw on Harrington and Turem (2006) to define neoliberalism as, “‘the (re)emergence of the market and economic rationale as the dominant organizing logic in society’” ((p. 2), quoting Harrington and Turem 2006, 204)).
Part I focuses on social and legal mobilization around property rights in the United States. Eminent domain factors heavily into these chapters, leaving much of the focus in Part I also on the idea of real property. Examining other, non-real property rights in this section would have been welcome, but the chapters remain fascinating contributions to the overall volume. In Chapter 1, David Schultz examines the neoliberal mobilization of property rights on the lead up to KELO and the reaction following the ruling. Schultz envisions this mobilization as a concerted neoliberal effort to challenge state authority through the concept of property rights, and ultimately push decision making into the market (p. 12-13). Schultz employs the idea of backlash to show how even the “loss” in KELO ultimately serves neoliberal ends through enhanced mobilization, in part through the media savvy Institute for Justice. It strikes me as a missed opportunity that Schultz—as is true with Wilkerson in Chapter 3—did not draw parallels between the Institute for Justice’s public media campaign and Haltom and McCann’s (2004) work on tort reform efforts. Haltom and McCann’s (2004) analysis of the tort reform movement focuses, in large part, on the success of tort reformers to claim the public understanding of tort law through effective use of information packaging and media distribution. A discussion of how both reform efforts make use of media to influence mass legal knowledge, and a comparison of the success of these efforts, would have deepened the discussion of multi-tiered mobilization efforts and winning-through-losing mobilization strategies. Even without this comparison to the tort reform movement, Schultz’s chapter sets the context nicely for the rest of Part I, and for the rest of the volume as well.
In Chapter 2, Rebecca U. Thorpe et al. set out to address the gap in judicial decision making literature regarding economic questions and property rights. To do this, the authors examine third-party participation in regulatory takings and affirmative action cases between 1978 and 2003. They argue these issues provide a natural experiment, where 1978—the year of PENN CENTRAL TRANSPORT CO. V. NEW YORK CITY (1978) and REGENTS OF THE UNIVERISTY OF CALIFORNIA V. BAKKE (1978)—allows for the beginning of a comparison of the issues of economic property rights and civil rights, looking at how third-parties mobilize and influence judicial behavior. The data on amicus participation and conflict within the amicus briefs is presented well, but the overall connection to neoliberalism in this chapter is largely absent. The chapter is useful for understanding the level of interest group mobilization through amicus briefs in property rights cases, but it sheds little light onto the nature of neoliberal mobilization and reform in this area of law. The authors could have examined who the amicus participants were and the relationship this had on the final opinion, which they suggest as one point of potential further research, to conclude something specifically about the effectiveness of neoliberal amicus participation (p. 48). The authors also could have attempted to take their findings on amicus participation and amicus conflict and offered a clear statement of how these relate to questions specifically of neoliberal mobilization. The comparison with affirmative action and [*67] regulatory takings is an interesting one, but the findings are not clearly or overtly contextualized into the volume’s overall questions or themes. Without these or similar attempts to connect the chapter directly into the core of this volume’s themes, the implications for understanding neoliberal mobilization are underdeveloped here.
William R. Wilkerson’s chapter is squarely about KELO V. CITY OF NEW LONDON (2005). Specifically, he looks at the Institute for Justice’s mobilization in the case on behalf of Kelo and the 13 other plaintiffs in the case. Wilkerson’s chapter excels at highlighting the adept way in which the Institute for Justice was able to shape the taking in KELO, which was not an anomaly, and capture the public’s imagination enough to spark significant countermobilization in favor of neoliberal property rights reforms. Wilkerson’s analysis shows the Institute for Justice’s political acumen, as well as that the organization was working as much for their own ideological goals, or more, than they were trying to protect Kelo’s little pink house. Like Schultz, Wilkerson misses an opportunity to connect and compare the mobilization around KELO by the Institute for Justice to tort reformers’ successful capture of public media messages and popular understanding of tort cases (Haltom and McCann 2004). It would seem that the Institute for Justice is winning the contest to control what the mass public thinks about eminent domain and property rights, as is true of tort reformers’ influence on what the mass public thinks about tort law and tort cases, but the reader would benefit from an exploration of to what extent this is true. All the same, Wilkerson’s chapter serves as a valuable addition to both this volume and the broader literature on neoliberal, or even just conservative, legal mobilization.
Debbie Becher’s chapter closes out Part I and serves as an insightful parallel to Wilkerson’s chapter. By studying the eminent domain use in Philadelphia occurring at roughly the same time as the developments in New London, Becher offers a case study in extra-judicial legal mobilization around property rights. She finds the mobilization in Philadelphia to be almost completely separate from neoliberal mobilization, argumentation, and goals. In fact, as Becher explains, the Institute for Justice chose not to get involved in Philadelphia. The residents swept up in Philadelphia’s use of eminent domain chose to mobilize legal ideals and rhetoric to argue for the protection of their homes, a respect for the emotional investment in their homes and neighborhood, and for community self-determination. Becher highlights the tensions between how the individuals employ legal rhetoric to defend their claims on their homes and how neoliberal property rights advocates tend to present their arguments. This chapter shows that not all anti-eminent domain efforts are the product of neoliberal ideals, nor does the opposition always embrace the neoliberal vision of increased market completion and strong individual rights. The repeated discussion of community and claim to emotional investment in one’s home that Becher finds in her case study speaks to areas that neoliberal ideas and reforms simply cannot adequately address.
Part II shifts the focus from the U.S. to a comparative legal context. The chapters in Part II also move beyond real property and eminent domain in addressing neoliberal property rights reforms. Henderson’s and Boggio’s chapters both have a notable post-colonial focus and flair, while Clark and Harrington’s chapter is more grounded in NAFTA tribunal procedures and rulings. In her chapter, Victoria L. Henderson addresses the neoliberal reforms that led to Guatemala’s privatization of the electromagnetic spectrum, specifically looking at property rights to broadcast frequencies. This chapter is highly technical, and not easily accessible for a lay audience. However, Henderson is incredibly thoughtful, thorough in her analysis, and convincing in her central claims. Henderson demonstrates that neoliberal ideals are responsible for the properitization of the former [*68] collective resource that is the broadcast spectrum. These reforms have negatively impacted the indigenous Maya population that previously used community radio as a means to broadcast in their native tongue to reach indigenous populations still spread out after Guatemala’s 30-year civil war. Under the new reforms, the Maya cannot afford to purchase property rights to broadcast legally, but some have pushed back by operating what the neoliberal reformers have dubbed “pirate radio” broadcasts. The privatization and commodification of a formerly public good has recreated a form of former colonial oppression of indigenous populations in Guatemala.
Andrea Boggio’s chapter also looks at how various indigenous populations are potentially negatively affected by neoliberal property rights. Boggio looks at the question of patenting biological material—including DNA, cells and proteins—from indigenous populations. Implicated in the claim to intellectual property rights in genetic material is also related claims over indigenous culture that emerge from competing cultural understandings of what property—and genetic material—really are. Various indigenous populations have had some success in mobilizing and asserting their own property rights against neoliberal claims of intellectual property rights. However, as Boggio argues, these victories might come at an unintended price for indigenous populations, as the cooptation of neoliberal property rights claims has legitimized and bolstered the idea of intellectual property rights to genetic material, as well as potentially weakened these indigenous groups’ abilities to effectively resist biocolonialism. Adopting neoliberal ideas as a means to resist them could limit future attempts to resist neoliberals intellectual property rights claims.
Gabrielle E. Clark and Christine B. Harrington study NAFTA and the tribunal that allows private parties to bring what are effectively regulatory taking suits against any or all member states. While NAFTA is lauded as a successful neoliberal creation, and the ability to sue member states to challenge state laws that potentially impinge property rights is seen as dangerous for sovereignty and regulatory authority, Clark and Harrington offer a different analysis. They argue that indeterminacy in transnational legal rules and conceptions of property allow member states to shift understandings of regulation and property in the process such that state sovereignty is not sacrificed through NAFTA to the neoliberal ideals of market solutions. The analysis of NAFTA and property rights is powerful, and the findings demonstrate that even neoliberal international institutions such as NAFTA can function as more than just ideological reproduction machines. Clark and Harington demonstrate that sovereignty, international law, and neoliberal property ideals interact in interesting, and somewhat unexpected ways in NAFTA’s dispute process.
Part III returns to the U.S. context, but engages in the law-and-society tradition of decentering the study of law away from courts, this time looking at a variety of other institutions involved in the legal meaning making process. Richard A. Brisbin, Jr., Susan Hunter, and Kevin M. Leyden point out that cases like KELO and the topic of eminent domain are but a tiny fraction of the ways in which government controls or otherwise regulates real property. Local planning commissions and zoning boards are regularly involved in controlling real property, but are almost never subjected to neoliberal organized pressure and mobilization. Understanding that these local decision makers factor in public opinion into their decision making, aim for consensus, and have layers of administrative procedures that insulate their decisions from litigation all go to show how institutions, primarily here bureaucratic legalism, are important for influencing the common place of real property law in the U.S. While neoliberal eminent domain reform has been incredibly visible, the local planning committees and [*69] zoning boards that make the majority of property-based legal decisions are effectively immune from neoliberal efforts to remake American law regarding land use.
Daren Botello-Samson offers a similar overall point, albeit with a different approach and set of institutions, to that offered by Brisbin, Hunter, and Leyden. Botello-Samson addresses whether neoliberal threats of litigation actually produce a chilling effect on regulatory agencies, thus allowing neoliberal organizations and lawyers to further reform property law through stopping regulation. His findings indicate that this threat of a chilling effect is largely overblown. Through elite interviews of federal regulators involved in enforcing the Surface Mining Control and Reclamation Act, Botello-Samson shows that collective decision making in the bureaucracy protects individuals from lawsuits, that agency culture focuses on regulation and not on outside threats of lawsuits, and that the meaning-making involved in enforcing a law over time helps shape new expectations in accordance with how the law has been enforced. Thus making subsequent efforts to enforce the law easier. Time, as an institutional factor, becomes important for shifting shared understandings of what is expected in compliance, mitigating neoliberal pressures not to regulate.
In the final chapter, Laura J. Hatcher offers what is best-described as an historical institutionalist study of one specific decades-long case involving claims to property rights to develop part of the coastal land off of the Rhode Island coast. Through a long-term exploration of the meaning of the “wasteland” off the coast, Hatcher convincingly shows how the understanding of property and legitimate use of the property off the coast was shaped by changing technologies, needs, as well as natural disasters. These shifting conceptual understandings of property, largely established through little more than administrative practice, led to the long case at the heart of the chapter where one man tried to assert his rights to use his property as he wanted. Even with the support of the neoliberal organization Pacific Legal Foundation, the case, PALAZZOLO V. RHODE ISLAND (2001), ends on a largely ambiguous legal outcome with neither side wholly satisfied. Hatcher demonstrates that the agency practice and conventions around coastal land use were just as powerful, if not more powerful, as court cases in shaping understandings of legitimate uses of property. Legal meaning is multifaceted, and courts and neoliberalism are only part of the meaning-making story.
The volume, as a whole, is probably too technical and focused to be useful in its entirety for an undergraduate law course. Individual essays could certainly be used as supplemental reading to go along with cases on American constitutional law, especially classes engaging with KELO, which is central to many of the chapters. Almost any of the KELO-centric chapters would add to a constitutional law course, or even a class examining the political nature of the judiciary. Either or both Henderson’s and Boggio’s chapters would be useful for exploring post-colonialism and indigenous rights. The legal mobilization chapters could be useful for a class on various mobilization efforts, perhaps in a law and society program. Finally, the chapters in Part III could be used for a course that investigates the decentered nature of regulatory law, if such specific courses exist. As such, the volume is probably most valuable to scholars studying property rights or neoliberal (or conservative) legal mobilization. The three parts of the volume all have internal coherence that would aid educators in using one part in a given course.
Overall, the volume effectively collects chapters that show the complex nature of current property rights law and practice. Despite neoliberal reform efforts—and successes, in the case of eminent domain—the law of property rights is far from being a tool of the neoliberal agenda. The sustained focus on institutions and context [*70] throughout the chapters bolsters the analyses of various political questions, disputes, and actors, as they allow for a more robust explanation of the law, the mobilization in the face of the law, and the rules and procedures that serve as the arena for these disputes. Where the volume is at its weakest, interestingly enough, is around the neoliberalism theme. Part of this is comes from the inherently nebulous nature of the meaning of “neoliberalism.” The editors directly acknowledge this terminological challenge at the outset and try to address this by embracing Harrington and Turem’s (2006) broad understanding of neoliberalism. This is a logical approach, and as far as offering a shared understanding of one of the volume’s central concerns, a wise decision. Where the weakness comes in is the varying degrees to which the authors embrace neoliberalism as a central part of their analysis. For some authors, neoliberalism is integral to the story they tell, for others it is more tangential, and for some it feels like it was added on after the fact. This is not to say that neoliberalism is an empty concept in the volume or that the use of the term is too varied to provide any insight. Rather, I raise this critique to indicate that neoliberalism as an ideal and a movement does not carry equal importance throughout the chapters. As the volume intends to address the role of neoliberalism in property rights, this is a notable concern. Regardless, all of the chapters make a valuable contribution to our understanding of the changing notions of property, property rights, and the role of the law in regulating property. Even where neoliberalism is largely missing in the analysis, the study of shifting conceptions of property and property rights is still valid and a welcome contribution to the literature.
Benedict, Jeff. 2009. LITTLE PINK HOUSE: A TRUE STORY OF DEFIANCE AND COURAGE. New York: Grand Central Publishing.
Braedley, Susan and Meg Luxton, eds. 2010. NEOLIBERALISM AND EVERYDAY LIFE. Montreal, CA: McGill-Queen's University Press.
Haltom, William and Michael McCann. 2004. DISTORTING THE LAW: POLITICS, MEDIA, AND THE LITIGATION CRISIS. Chicago: The University of Chicago Press.
Harrington, Christine B. and Z. Umut Turem. 2006. “Accounting and Accountability in Neoliberal Regimes, in Public Accountability.” In DESIGNS, DILEMMAS AND EXPEREICNES, ed. Michael W. Dowdle. Cambridge, UK: Cambridge University, 195-219.
Somin, Ilya. 2014. “A Forthcoming Film about KELO V. CITY OF NEW LONDON.” June 23. Available at: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/06/23/a-forthcoming-documentary-on-kelo-v-city-of-new-london/ (December 9, 2014).
KELO V. CITY OF NEW LONDON. 545 U.S. 469 (2005).
PALAZZOLO V. RHODE ISLAND. 533 U.S. 606 (2001).
PENN CENTRAL TRANSPORT CO. V. NEW YORK CITY. 438 U.S. 104 (1978).
REGENTS OF THE UNIVERSITY OF CALIFORNIA V. BAKKE. 438 U.S. 265 (1978).
© Copyright 2016 by author, Daniel Tagliarina.