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The purpose of this Essay is to summarize and reflect upon the second panel discussion at the Third Annual Brigham-Kanner Property Rights Conference at William & Mary School of Law, October 6-7, 2006. The panel was entitled "Comparing the Treatment of Property Rights to the Protections Given to Other Rights Under the Bill of Rights." As described by Professor Eric Kades, the organizer of the conference, the panel's topic was inspired by a statement by Justice Rehnquist in the case of Dolan v. City of Tigard: "We see no reason why the Takings Clause of the Fifth Amendment, as much a part of the Bill of Rights as the First Amendment or Fourth Amendment should be relegated to the status of a poor relation..." By virtue of their location in the Bill of Rights are the property rights embodied in the Fifth Amendment as important as the other rights in the Bill of Rights? Are they somehow even more important? Are there any textual or other reasons to treat these rights differently from other rights in the Bill of Rights? These were among the questions addressed by the panel participants and the thoughtful discussion that followed their presentations.

This Essay will proceed as follows. Part I will summarize the major points raised by each of the panelists. It is important to note at the outset that this summary is not an attempt to capture everything that each of the panelists said. Indeed, many important details and subtleties will be omitted here. Nor does it necessarily reflect the points each speaker empahasized. Rather, I seek in this Part to draw out common themes among the panelists. Part I will also summarize the discussion that followed the presentations. Part II will explicate and reflect upon some of the major themes that were raised.

Date of Authorship for this Version



property rights, Bill of Rights, Property Law and Real Estate

Original Citation

Originally published in William & Mary Bill of Rights Journal, Vol. 16, pp. 849-863, 2008.