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Publication Date

3-2011

Document Type

Article

Abstract

Property is the process of dividing the world into bits that may be subjected to private control. As such, how we understand the world, its characteristics, and its processes is very important. If, for instance, we think of water as an infinite resource that serves growth needs, we might not be concerned with how that resource is acquired, used, or even wasted. On the other hand, if we believe that water is a scarce and essential resource, we may find that an allocation scheme bears the weight of accomplishing many social and economic objectives. Nature matters because our understanding of the world matters to the manner in which we construct rights to property. Of course, at some point, the converse also obtains: how we conceive of property influences what we enjoy, fear, and want in the world. A new understanding of nature may be resisted precisely because it undermines the persuasiveness of the way we protect possessions as property. Property and nature are codependent, but their connection is an indeterminate one. ...

The thesis of this Article is that ecosystem services-the "wide range of conditions and processes through which natural ecosystems, and the species that are part of them, help sustain and fulfill human life"-will have a dramatic impact on the relationship between property and nature, and this impact may be best understood by examining how the Ecosystem Services story diverges from the legal and rhetorical commitments made in the Property and Environment paradigms. To introduce the Property story, Part II of this Article relies on the rule of capture, which occupies a special place in understanding the things in nature and how they have historically been subordinated to human use. Under the rule of capture, the natural world is divided into property and potential property. The argument made in this Part is that the Property description of nature emphasizes the importance of boundaries to delineate claims to things in the world and ascribe value to them. To introduce the story of the Environment, Part III of this Article considers environmental and natural resource laws as efforts to transition law into valuing nature by reference to something other than its potential utility. The argument made in this Part is that despite the dramatic changes reflected in the Environment, the transition from Property was made easier by retaining the central importance of boundaries in the world and by applying that notion to distinguish Property from the Environment; but as a consequence, nature took on the role of a property defect.

The remainder of this Article concerns the manner in which the trends toward an Ecosystem Services approach converge or conflict with past paradigms of nature. Accordingly, Part IV of this Article introduces Ecosystem Services as a description of the world that is notable for the way it navigates and reinvents the boundedness of the things of nature while reconnecting nature to important characteristics of property. The argument made in this Part is that Ecosystem Services combines the intent of the Environment with the value embedded in the Property scheme but modifies value to cast nature as an economic advantage. Part IV also considers the obstacles to formalizing the Ecosystem Services understanding of nature as an element of property, including the difficulties that courts have demonstrated in understanding the nature of the shift.

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