New Book Chapter on “The Right to Use Private Property”

My new book chapter, “The Right to Use Private Property” is now available on SSRN. It was recently published in Rethinking the Law of Private Property, (Jan Laitos, ed., Edward Elgar, 2025). Contributors to the volume include big-name property rights scholars Richard Epstein (on possible legal challenges to resurgent rent control statutes) and Vicki Been (who contributed an important chapter on how property rights arguments can be used both for and against zoning reform).

Here is the abstract for my chapter:

The right to use is a central element of property rights. But it is an under-analyzed aspect of the right to private property protected by the Takings Clause of the Fifth Amendment, which requires the government to pay “just compensation” whenever it takes “private property” for public use. Modern Supreme Court jurisprudence wrongly provides only modest protection for the right to use. This chapter makes the case for a strong right to use under the Takings Clause.

Part I outlines the importance of the right to use property in the real world. For most types of property, that right is an essential element of the “bundle of sticks” possessed by the owner, often even the most important element. That point applies to both property in land, and personal property. Part II makes the originalist case for a strong right to use under the Takings Clause. William Blackstone—a major influence on early American conceptions of property law and on the leading American Founders—regarded the right to use as a central element of property rights. The same was true of leading court decisions and legal theorists around the time when the Takings Clause and the rest of the Bill of Rights became “incorporated” against state and local governments in 1868. Part II also gives a brief overview of the “police power” exception to Takings Clause liability and its relevance to the right to use. That exception would deny compensation in cases where the use restricted poses a significant threat to public health or safety. But it does not do so in other situations, including the vast majority of exclusionary zoning restrictions on housing construction.

Some of the analysis in this chapter builds on my earlier article, “The Constitutional Case Against Exclusionary Zoning” (Coauthored with Josh Braver). The idea that the right to use is central to property rights may seem very obvious. Indeed, my defense of it is one of my many projects defending intuitively obvious conclusions against academics, judges, and others who deny them. But the right to use has been widely undervalued by property scholars, and by the Supreme Court’s Takings Clause precedents, both of which all too often give it short shrift.