Source: Dissertation Abstracts International, Volume: 77-12(E), Section: A.

Adviser: Claire Priest.

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This dissertation uses new histories, derived from examinations of state and local records, to analyze developments in the constitutional law of property. Each of the essays contained in this dissertation evaluates the changing power of legislatures and courts in different contexts to define what counts as property entitled to constitutional protections. These essays analyze whether the institution that controls the meaning of constitutional property is sufficiently checked by procedural and substantive rules. Each essay thus confronts dominant theories about what constitutional property is, how the authority to decide should be distributed, and what guidelines institutions should use in their interpretations.

The first two essays in this dissertation investigate the takings clauses of the federal and state constitutions, which provide that private property cannot be taken for public use without just compensation. The first essay, Defining "Navigability": Balancing State-Court Flexibility and Private Rights in Waterways, discusses the constitutional implications of state courts restricting the scope of takings clause "property" by changing interpretations of the common law. By operation of the public trust doctrine, when a court declares a waterway navigable, it becomes public property and thereby destroys adjacent landowners' rights to exclude. Many state courts consider themselves able to update the meaning of the word "navigable" under state law---say, from "used by boats" to "able to float logs for six weeks"---as public needs for waterways change over time. A history of courts changing the definition demonstrates the dubious common-law basis for this authority and the troubling circumstances surrounding some changes in navigability's meaning---like state legislatures asking for the rule change when there is little doubt that they would have to pay compensation under state and federal takings clauses if they made the change themselves. Navigability doctrine provides an ideal test case for examining the consequences of applying federal takings precedents to state judicial rulemaking and considering how those precedents might be able to permit beneficial common-law evolution while constraining the worst abuses.

The second essay in this dissertation, Property's Ceiling: State Courts and the Expansion of Takings Clause Property, explores the forgotten authority of state courts to define new constitutional property interests, thus increasing the amount and types of property protected by state and federal constitutions. This chapter focuses on a case study: from the mid-nineteenth through mid-twentieth centuries, owners of land abutting roads suffered through major regrades that often raised streets tens of feet or dug them down similar distances, leaving homeowners on massive mounds of dirt above the street or with the street looming over their property. When state and local legislatures failed to provide compensation for these projects, courts created a new type of constitutional property---a right of reasonable access---that became "property" subject to state and federal takings clauses, giving residents whose homes and businesses were devalued by the regrades a means of redress. By neglecting how courts have historically created these new sorts of constitutional property, scholars who argue that legislatures are and should be responsible for changes in property rules have missed critical implications for institutional choice analyses in property law. While there may be good reasons to prefer that legislatures define novel property interests as a general matter, courts have been overlooked as sites where constitutional property rights are created and debated in response to perceived political failures.

The final essay, The Lost "Effects" of the Fourth Amendment: Giving Personal Property Due Protection, takes up the Fourth Amendment, which expressly protects "the right of the people to be secure in their ... effects" from unreasonable searches. Unlike its counterparts "persons, houses, and papers," effects have received comparatively little attention from either scholars or courts, leading many courts to develop rules that offer extremely limited protection for property when it is not located in the home or on the person---say, a jacket temporarily left on a chair in Starbucks. In this chapter, I explore whether those rulings are sound in light of the Amendment's history and objectives by using primary sources to identify the property, privacy, and security interests specific to personal property that motivated the Founders to include "effects" in the constitutional text. Borrowing from personal property law and theory, the chapter concludes by presenting a number of property factors that can be used to identify constitutional "effects" and to examine whether that property remains in its owner's possession and is thus presumptively protected. These two inquiries are the beginning of a historically and theoretically grounded approach to searches of personal property under the Fourth Amendment.