Sarah Harding has posted her paper “Perpetual Property” 61 Florida Law Review (2009) on SSRN. Many of these ideas speak to the importance of limitations rules for claimants, particularly in the Nazi spoliation context. These rules have been expanded to accommodate these past injustices, which may be a very good thing for redressing the wrongs of the past, but might alos have some undesirable consequences for other areas.
Here’s the abstract:
This paper explores the emergence of perpetual property in a number of discrete areas of property law: the longevity of servitudes in historic and environmental preservation, the ever growing time span of intellectual property rights, the disappearance of the rules against perpetual interests, and the temporally unlimited reach of cultural property claims. While the demise of temporal limitations is itself worthy of recognition and will be the focus of a significant part of this paper, my primary interest is whether these changes tell us something about shifting cultural attitudes to the institution of private property. If it is the case, as a number of prominent sociologists have argued, that an exploration of social attitudes toward time is indispensable to an understanding of our current cultural conditions then exploring temporal limitations in property law will presumably help us better understand what Professor Radin has called the cultural commitments of property. This topic is particularly compelling when one considers that the emergence of perpetual property, with its assumption of stability and permanence, has occurred at a time when speed, flexibility and impermanence are dominant features of our current social conditions. The prevailing conditions in society, even a single generation into the future, are likely to be so different from today that long-term control of property seems anachronistic and paradoxical. So why is it that in an era of rapid technological change we are more willing to tolerate perpetual property interests?