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13 Harv. J. L. & Pub. Pol'y 91 (1990)
Privprop, Regprop, and Beyond

handle is hein.journals/hjlpp13 and id is 107 raw text is: PRIVPROP, REGPROP, AND BEYOND RICHARD B. STEWART* The title of this panel-Regulation and Property: Allies or Enemies?-captures the janus-faced quality of regulation. On the one hand, regulation can be looked upon as a means of protecting traditional personal and property interests that are inadequately protected by the common law because of institu- tional problems created primarily by industrialization. On the other hand, regulation can be an exploitative tool used by or- ganized political interests to enrich themselves at others' ex- pense and undermine private property. Under industrialization, our common-law system of private remedies may fail to protect property and personal interests from infringement.' Widespread pollution is a good example. Because of small stakes and collective action problems, there are great difficulties in using the courts to deal with problems such as acid rain. Another example is product safety. Lack of access to market information may produce inadequate con- sumer demand for product safety. Tort liability for defective products is a potential solution, but a decentralized case-by- case system of regulation by juries is a clumsy process. To help solve these problems, we have developed centralized regulatory schemes, starting with food and drugs and moving to other product areas, such as automobiles. In the past twenty years, the focus has been environmental, health, and safety reg- ulation.2 Many of these programs helped protect personal and property interests from infringement. We, however, also know that regulation can be a means by which economic and ideological factions use the coercive power of government to infringe, without compensation, tradi- tional personal and property interests. At the same time, regu- lation often undermines the virtues of innovation, diversity, * At the time of the symposium, Richard B. Stewart was the Byrne Professor of Administrative Law, Harvard Law School. He currently is serving as the United States Assistant Attorney General for Land & Natural Resources. 1. See Stewart & Sunstein, Public Programs and Private Rights, 95 HARV. L. REV. 1193 (1982); S. BREYER & R. STEWART, ADMINISTRATIVE LAW AND REGULATORY POLICY (1979). 2. As the pollution example illustrates, implementing environmental regulatory schemes involves federal, state, and local governments. Environmental regulation is therefore far more complex than zoning, which is often a standard model for criticizing regulation.

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