We’re Back

“You can’t have rights without advocates.”

– Michael Berger

We’re at the William and Mary Law School in Williamsburg, Virginia today for the 11th Brigham-Kanner Property Rights Conference. As we’ve noted earlier, Michael Berger is this year’s B-K Prize honoree, for his career contributions to property law and his “scholarly work and accomplishments [which] affirm that property rights are fundamental to protecting individual and civil rights.”

The list of past recipients is an All-Star roster of property scholars and jurists, including lawprofs Frank Michelman, Richard Epstein, James Ely, Carol Rose, Thomas Merrill, and Supreme Court Justice Sandra Day O’Connor (the latter perhaps more for where she ended up in her Supreme Court career than where she started). See the plaque on the Law School’s wall for the complete list of prizewinners. Quite a line up, no?

This is the first time that the Prize has been awarded to an actual practicing lawyer, and the today’s panels are focusing on the role of the advocate in defining property rights. Mike started the day’s short career retrospective with the quote above.

 

 

Legal scholars have their place, of course. They spend their careers thinking, researching, and writing about the “why’s” and the “should be’s” of the law. But without lawyers to detail the “how’s,” and who advocate for actual clients, these lofty academic theories would remain just theories. It’s the practicing bar representing clients who decide what cases to present to the courts, who craft the arguments that the judges eventually adopt (or don’t), and who take the theories and translate them to the real world where they actually matter.

Legal scholars may pump up the tires, but it’s practicing lawyers who ride the bike.

 

 

Other prizewinners have a mix of practice and academics (such as Professors Thomas Merrill and Richard Epstein), but not nearly the full-time level of Mike Berger. Given that the B-K Prize is named after a practicing lawyer (Toby Brigham) and an advocate/academic (Gideon Kanner), presenting it to Mike Berger is particularly appropriate, since in addition to his practice, he has also created a body of scholarly work.

 

 

If you haven’t had a chance to attend the Brigham-Kanner Conference, you really should consider doing so in the future. It is, in our opinion, the best one-day-and-a-bit-more academic conference of its kind. The speakers, which include past prizewinners, other notable property law academica (David Callies [U. Hawaii], Orin Kerr [George Washington U.], Weixin Shen [Tsinghua University, Beijing], and Steve Eagle [George Mason] for example), and practitioners (Jim Burling [PLF], Dana Berliner [IJ], Janet Bush Handy [State of Maryland], and Joe Waldo [Waldo & Lyle, Norfolk, Virginia]), are really interesting and exciting for those of us who do this for a living. We’ve been appointed to serve on the B-K Conference’s Board of Advisors, and we’re already planning future events.

And the highlight of the Conference is the event at which the Prize is awarded, a candlelight dinner in the historic Wren Building, in the room in which John Marshall and Thomas Jefferson read law. Here’s Mike with the four past prizewinners in attendance at the dinner last night.

Please also note that the Brigham-Kanner Property Rights Conference Journal is published as a record of the Conference (volume 3 is available here).

 

 

As a parting shot, I’ll re-share one of my favorite Mike Berger moments (which didn’t even involve him personally). At the tail end of a teleseminar on land use and regulatory takings a few years ago, the panel accepted questions from the audience. When one of the 50+ attendees asked a question about what the first step he and his clients should take having just lost a regulatory takings case in a trial court (the details of which escape me now), one panelist — a government lawyer — responded, “you mean after you call Mike Berger?”

Who among us hasn’t thought the same thing?