William H. Rodgers, Jr., Bringing People Back: Toward a Comprehensive Theory of Taking in Natural Resources Law, 10 Ecology L.Q. 205 (1982), https://digitalcommons.law.uw.edu/faculty-articles/267
Ecology Law Quarterly
This Article attempts to bring people back into legal analysis by drawing upon behavioral preferences of human beings suggested by the laws of biology. Biological theory offers no all-encompassing explanations of legal outcomes, although it offers important, and much neglected, partial explanations.
That the law can be explained in this light suggests that courts have a view of human nature departing from the caricatures of much contemporary legal theory. We take as our setting an issue faced by each society in every era-property rights in natural resources.
Part I takes up the task of theory development by recanvassing property theory and assigning special importance to four prominent themes-biological and social functionary explanations, the concept of natural resource rights in common, and the process component of property rights definition. The ideas developed include the human property right, which is inalienable except upon terms of the holder, and provisional rights to the common stock of natural resources, called social property, representing wealth that may be reallocated without compensation.
These themes constitute the basis of a comprehensive theory of property. All four of the theoretical themes are amply represented in historical justifications of property, and one would expect these themes to reappear in contemporary legal doctrine governing actual property conflicts. Part II tests this comprehensive theory against legal experience in the natural resources field. Used for this purpose are the statutes and case law addressing a variety of resource conflicts in five different doctrinal settings—nuisance and takings law, waste, and the reserved rights and public trust doctrines. These doctrines define crucial relationships among people, and between people and their collective representatives.
In testing the theory articulated here, a subsidiary purpose of this Article is to develop a taking theory offering descriptive guidance for the law of natural resource wealth allocation.
[Reprinted in 14 Land Use & Envtl. L. Rev. 385-432 (1983).]