Constitutions and Property: Seminar
Spring term, Block I
T 5:00 PM - 7:00 PM
Professor Frank Michelman
2 classroom credits LAW-91882A Spring
Over a recent historical span, constitutional drafters have confronted questions about what, if any, provision to make in their instruments regarding property institutions and property rights. Are these proper topics for constitutional recognition and entrenchment? Urgent or compulsory topics? What are the reasons pro and con?
If there is to be such a provision, what is the best way to formulate it (and what are the available choices among forms of constitutional protection for property)? How might specific assessments and understandings respecting a particular country's (or area's) history, traditions, and current situation bear on choices about whether or not to include a constitutional property clause and how best to formulate it?
Of course a parallel set of questions arises, often with greater immediacy, about how best to interpret and apply constitutional property clauses in jurisdictions where the choice to enact them has long since been settled. Much of the material to be examined in the seminar will be concerned with issues of interpretation.
These issues engage important normative debates in the fields both of constitutional law and property law. The seminar will take them up in a comparative setting, drawing from the experience of several countries, including South Africa and Germany. Materials from South Africa will figure prominently because the cluster of questions that concerns us currently attracts a high degree of attention from jurists and scholars in that country, as they did when South Africa's current constitution was being drafted during the 1990s. Completion of a basic course in constitutional law (it can be of any country or jurisdiction, or a comparative course) is required for admission to the seminar.