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Brigham–Kanner Property Rights Prize

The Brigham–Kanner Property Rights Prize is awarded annually by William & Mary College School of Law, at the Brigham-Kanner Property Rights Conference and is named in recognition of Toby Prince Brigham and Gideon Kanner for their lifetime contributions to private property rights, their efforts to advance pertinent constitutional protections of property and their accomplishments in preserving the important role that private property plays in protecting individual and civil rights.

Toby Prince Brigham is a founding partner of Brigham Moore in Florida and has practiced eminent domain and property rights law for more than 40 years. Gideon Kanner spent most of his decades-long career as an appellate lawyer limiting his practice largely to eminent domain and inverse condemnation litigation. He is now professor of law emeritus at the Loyola Law School in Los Angeles. The Brigham-Kanner Prize is awarded annually during the Brigham-Kanner Property Rights Conference. Each year the conference honors an outstanding scholar or individual whose work has advanced the cause of property rights and has contributed to the awareness of the important role property rights occupy in the overall scheme of individual liberty.

The 2011 Brigham–Kanner Property Rights Prize was presented to Justice Sandra Day O’Connor in Beijing, China, during the 8th Annual Brigham Kanner Property Rights Conference.

The 2014 Brigham-Kanner Property Rights Prize will be awarded to Michael M. Berger of Manatt, Phelps & Phillips during Eleventh Annual Brigham-Kanner Property Rights Conference, to be held on October 30, 31 2014 at William & Mary's Marshall-Wythe School of Law.

Prize Recipients

Michael M. Berger (October 2014)

Mr. Berger is the first practicing lawyer to receive the prize and is widely considered to be among the best takings lawyers in the nation. Mr. Berger has argued numerous cases before the US Courts of Appeal and the United States Supreme Court. He is being recognized for his contributions through his practice to the law of takings. The official press release from William and Mary is available here.

Thomas W. Merrill (2013)

Thomas W. Merrill, the Charles Evans Hughes Professor of Law at Columbia Law School, received the Brigham–Kanner Property Rights Prize during the 10th Annual Brigham Kanner Property Rights Conference on October 18 and 19, 2013 at the William and Mary School of Law.

James E. Krier (2012)

James E. Krier, the Earl Warren DeLano Professor of Law at the University of Michigan Law School, is the outstanding scholar on the evolution of American property rights. Fully recognizing that property rights are more than simple relationships between Kings and Princes spawned by the Magna Charta, Professor Krier comprehends the history of economic relations and behavioral conduct in an ever changing society, recognizing that the study of property is a study of economics and societal action. Fully recognizing that property rights are intrinsic in our liberty, Professor Krier has cogently espoused the nature of change in personal relationships in both economic and non-economic circumstances and how they have modified the property rights relationship. He has clarified the intrinsic relationship of property rights and societal relations.

The Brigham-Kanner Property Rights Prize was given to Professor Krier at the 2012 Brigham-Kanner Property Rights Conference on October 11, 12, 2012.

Sandra Day O'Connor (2011)

During her illustrious tenure on the Supreme Court, Justice Sandra Day O’Connor approached property rights with her trademark balance and sensitivity. She authored memorable opinions in several landmark cases, and many of her pronouncements have left a lasting impression on takings jurisprudence.

In one of her first cases, Justice O’Connor wrote for a unanimous Court in Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984), a seminal case in defining the “public use” component of the Fifth Amendment’s Takings Clause. The Hawaii Land Reform Act of 1967 allowed a state agency to condemn certain leased private properties and then sell them to private lessees. Deferring to the state’s interests in breaking up its historical land oligopoly, Justice O’Connor concluded that the Act had a direct public purpose and therefore did not violate the “public use” requirement of the Takings Clause.

Three years later, in Hodel v. Irving, 481 U.S. 704 (1987), Justice O’Connor again wrote for a unanimous Court, this time striking down a federal statute that required the escheat to the Oglala Souix tribe of fractional interests of property owned by individual tribal members. She reasoned that the right to will property to heirs is a fundamental property right, and that a complete abrogation of this right constitutes a taking that requires just compensation to the heirs.

In Eastern Enterprises v. Apfel, 524 U.S. 498 (1998), the Court, in a plurality opinion, invalidated the Coal Industry Retiree Health Benefit Act’s employer-funded health-benefits mandate. Writing for four justices, Justice O’Connor reasoned that the mandate worked an uncompensated takings by imposing a severe, retroactive, and unexpected financial liability on mining companies.

Finally, in Lingle v. Chevron U.S.A. Inc., 544 U.S. 528 (2005), a decision most well known for its clarification of regulatory-takings doctrine, Justice O’Connor, writing for a unanimous Court, held that the “substantially advances” test for due process should not control the question of whether the government has worked a regulatory takings. In the process, Justice O’Connor put the emphasis of regulatory takings on the character of the property burden rather than on the nature of the governmental interest involved.

Justice O’Connor also authored particularly notable concurring and dissenting opinions in the property-rights area. In Kelo v. City of New London, 545 U.S. 469 (2005), the Court held that a government’s condemnation and subsequent transfer of private residences to a private commercial developer was permitted by the Constitution. In one of her most forceful dissents, Justice O’Connor distinguished between direct and indirect public purposes and rejected the idea that indirect and speculative economic development could be a “public use” justifying private-to-private transfer of property under the state’s eminent domain power. And, in Palazzolo v. Rhode Island, 533 U.S. 606 (2001), Justice O’Connor filed a concurrence arguing that pre-existing land-use restrictions are relevant in determining whether the property owner can pursue a regulatory-takings claim. In contrast to the rigid per se rule adopted by the Court, Justice O’Connor made a compelling case for an ad hoc, balanced approach that looks at context and facts. Though it did not then command a majority vote, her concurrence is now seen as a controlling legal principle.

Carol M. Rose (2010)

Professor Carol M. Rose is the 2010 recipient of the Brigham–Kanner Property Rights Prize. She is the Lohse Chair in Water and Natural Resources professor at the University of Arizona James E. Rogers College of Law. From 1990 to 1994 Professor Rose was the Fred Johnston Chair in Property and Environmental Law, Yale Law School. She has been the author of titles such as "Property and Persuasion: Essays on the History, Theory, and the Rhetoric of Ownership" "Crystals and Mud in Property Law, 40 Stan. L. Rev. 577" and "Big Roads, Big Rights: Varieties of Public Infrastructure and Their Impact on Environmental Resources, 50 Ariz. L. Rev. 409 " among others.[1]

Richard E. Pipes (2009)

Professor Richard E. Pipes is the 2009 recipient of the Brigham–Kanner Property Rights Prize. He is the Frank B. Baird, Jr., Professor of History, Emeritus, at Harvard University. Among his appointments, he served as Director of Harvard University's Russian Research "Team B" to review Strategic Intelligence Estimates in 1976, and as Director of East European and Soviet Affairs in President Ronald Reagan's National Security Council from 1981-82.[2]

Robert C. Ellickson (2008)

Professor Robert C. Ellickson is the Walter E. Meyer Professor of Property and Urban Law at Yale Law School. Prior to joining the Yale faculty in 1988, he was a member of the law faculties at the University of Southern California and Stanford University. He is author of numerous books, including The Household: Informal Order Around the Hearth, Order Without Law: How Neighbors Settle Disputes (awarded the Order of the Coif Triennial Book Award), Land Use Controls (with Vicki L. Been), and Perspectives on Property Law (with Carol M. Rose and Bruce A. Ackerman). He is a fellow of the American Academy of Arts and Sciences and a past president of the American Law and Economics Association.[3]

Margaret Jane Radin (2007)

Professor Margaret Jane Radin is professor of law at the University of Michigan Law School. Prior to joining the Michigan faculty in fall 2007, she was the William Benjamin Scott and Luna M. Scott Professor of Law at Stanford University. She also has been on the faculty of the University of Southern California Law School and has been a visiting professor at UCLA and Harvard. Radin has published prolifically on property rights theory and institutions, commodification, intellectual property, and cyberlaw. Highlights of her property scholarship appear in Contested Commodities (Harvard University Press, 1996) and Reinterpreting Property (University of Chicago Press, 1993).[4]

James W. Ely (2006)

Professor James W. Ely is a renowned legal historian and property rights expert. He is the author of several books that have received widespread critical acclaim from legal scholars and historians, including The Guardian of Every Other Right: A Constitutional History of Property Rights, The Fuller Court: Justices, Rulings and Legacy, in which he examines the work of the Supreme Court between 1888 and 1910, and Railroads and American Law, in which he systematically explores the way that the rise of the railroads shaped American legal culture. Since Professor Ely joined the Vanderbilt faculty in 1972, he has been frequently recognized by students as one of the law school’s outstanding teachers. He holds a joint appointment in Vanderbilt’s history department.[5]

Richard A. Epstein (2005)

Professor Richard A. Epstein is the James Parker Hall Distinguished Service Professor of Law at the University of Chicago where he also serves as director of the John M. Olin Program in Law and Economics. He is known for his research and writing in a broad range of constitutional, economic, historical, and philosophical subjects.He edited the Journal of Legal Studies (1981–91) and the Journal of Law and Economics (1991–2001). He is now a director of its Olin Program in Law and Economics. Epstein's books include How the Progressives Rewrote the Constitution (2006); Free Markets under Siege: Cartels, Politics and Social Welfare (Hoover Institution Press, 2005), Skepticism and Freedom: A Modern Case for Classical Liberalism (2003); Principles for a Free Society: Reconciling Individual Liberty with the Common Good (1998); Mortal Peril: Our Inalienable Right to Health Care? (1997); Simple Rules for a Complex World (1995); Bargaining with the State (1993); Forbidden Grounds: The Case against Employment Discrimination Laws (1992); and Takings: Private Property and the Power of Eminent Domain (1985).[6]

Frank I. Michelman (2004)

Professor Frank I. Michelman was chosen in large measure for his influential article, Property, Utility, and Fairness: Comments on the Ethical Foundations of ‘Just Compensation’ Law, 80 Har.L. Rev. 1165 (1967). He is the author of Brennan and Democracy and also has published numerous articles on property law and theory, constitutional law and theory, local government law and jurisprudence. Other books he has written include Rights and Democracy in a Transformative Constitution and Constitutional Property Clauses: A Comparative Analysis.[7]


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