Doing Justice in Property 'Takings' Cases: From Coal to Sand
The first section of this article introduces the topic of property takings, along with American legal theorist cum conversationalist John R Commons. My attraction to Commons is the way he adopted what may be called the 'Socratic method' in education. In this he sought to offer not a 'true understanding' of the law but, rather, insights into the generative process that construct a particular reading of a case or series of cases. (In this process, the student appreciates that her or his own answer is a creation and is not an answer that can be matched against some external standard and graded as true or false.). The second section of this article offers a discussion of the landmark United States Supreme Court takings case Pennsylvania Coal Co v Mahon, in which Holmes J wrote the opinion for the Court, and in which Brandies J wrote a dissenting opinion. The juxtaposition of the opinions offers material for illuminating the kind of conversation Commons invited. In the third section this article turns to New Zealand, revisiting some colonial property talk. Finally this article turns to the recent dispute about the 'ownership' of the foreshore, giving particular attention to the possibilities of what the Waitangi Tribunal called the 'longer conversation'.