Challenging Equality: Property Loss, Government Fault, and the Global Warming Catastrophe

Laura S. Underkuffler | August 28, 2022

One of the bedrock principles of American property law is that all property owners and all property are protected equally. We do not believe—when it comes to compensation for loss—that poor owners are compensated rigidly and rich owners are not, or that property in private homes is protected rigidly and property in commercial or industrial structures is not. When it comes to compensation due to public or private fault, we believe in absolute equality. Equal treatment of property is at the heart of the liberal state and is the promise of American property law. This Essay challenges that bedrock idea. The ultimate inadequacy of finite resources limits government decisions about their distribution, including compensation of private owners for their loss under takings law and other theories. In fact, the idea that public payment for private loss is “resource neutral,” particularly in the context of government fault-based claims, has always been a mythical one. When it comes to legal protection and rights to public compensation, ideas of equal protection for all kinds of property loss are neither currently implemented by American law, nor should they be. When loss occurs, and the adequacy of public resources fails, all property is not equal. It is not equal in origin, societal value, or deserved compensation. If there has been plausible deniability of this truth in the past, it will be shattered by the looming demands of global-warming catastrophe.