It is gratifying, hugely flattering, and at the same time somewhat embarrassing to have to open a conference and then a symposium issue on one's own academic work. No doubt understanding this embarrassment, my colleague and good friend Ian Ayres suggested a way out: since the conference was named "The Properties of Carol Rose," I should take the occasion to talk about the various residences I have owned. A great idea, and I did indeed think about it, because as Ian knows, I have had good luck in that dimension, with more than my share of weird and interesting addresses. But as intriguing as Ian's idea would have been, there was really another topic altogether that I thought I should address at the opening of the conference and now this symposium issue. That topic is the Missing Fifth Panel, or as I will sometimes call it in this Introduction, the Ghost Panel.

In his essay on the commons scholarship of Carol Rose, Michael Heller deploys an epoch-spanning synopsis of Western society's passion for the oyster to make his case for a Rose theorem. Professor Heller posits that the work of Carol Rose sets out a testable theory: law emerges from and is shaped by the interactions of human culture with nature and natural resources. The oyster's survival across the ages, he suggests, is due to this process, a "constantly shifting matrix of strategies, simultaneously public and private, individual and community, and on their constant renegotiation and interpolation." Professor Heller's is indeed an engaging account, and he is certainly correct that the oyster's story challenges the neoclassical economic account of the evolution of property rights. But as an account of what the oyster's story contributes to our ideas about common resources, it is incomplete. And Heller surely has not gone far enough in looking at the scholarship of Carol Rose from the point of view of the oyster. By failing to bring the story into the twenty-first century, Heller misses most of what the oyster's story tells us about human institutions.

Friends of the public domain are typically suspicious of property-talk. Property is perceived as the foe, epitomizing the threat of a shrinking public domain. This common view is misguided; it is also unfortunate. It is misguided because the cleavage between property discourse and a thriving public domain is largely illusory. It is unfortunate because the concept of property has enormous rhetorical power in shaping people's expectations and therefore in the construction of what they deem normal, obvious, and thus clearly justified. For both reasons, friends of the public domain should embrace property, rather than fight it. Lawrence Lessig's work epitomizes the suspicion of public domain advocates towards property. In Re-crafting a Public Domain Lessig laments the expanding rights of copyright holders to preclude others from using cultural artifacts and offers strategies for reversing the tide. Lessig claims that once classified as property, copyright is burdened by "the ordinary view about property" which is "binary at its core." He believes that notwithstanding lawyers' understanding of property as a bundle of rights, the propertization of creative activity facilitates a social ecology in which you must secure permission before your use. This ecology (alongside the powerful interest groups supporting it) accounts for Lessig's pessimism about the possibility of a happy legal reform. It also explains his apologetic response to critics of the attempt to encourage authors to opt into a system where only some of the rights copyright secures are typically reserved. Neither the pessimism nor the apologia is warranted. Nothing in the language of property necessarily invites the agenda of the content industry. Quite the contrary: the form, the substance, and the history of property convey lessons that are rather helpful to the goal, which I share, of re-crafting the public domain. By neglecting these lessons, guardians of the public domain allow copyright expansionists to capture the powerful brand-name of property, thus undermining their very own cause.

Jim Salzman's Thirst. A Short History of Drinking Water tells a remarkable story about how we have managed one of the most important substances in our lives, and through its historical tales, may also point to a way to think not only about water management, but also about the management of all kinds of resources - a management strategy that is not defined by the resource, but instead, the resource's ultimate use. Up until this time, those who study environmental pollution have generally focused on resource management (and in this I include resources that can be despoiled by pollution, such as clean air) based on the resource itself, i.e. how should we best manage water, or air, or animals, or land generally. With many of these natural resources, management strategies have been driven by concerns of common overuse - the tragedy of the commons. Thus, much of the legal analysis of resource use has focused on how to correct the commons problem so that we all get appropriate economic signals to avoid overuse. In the environmental law arena, the market's failure to internalize costs, which results in the tragedy of the commons, is given as the main justification for government intervention into the private marketplace - we have to control how much pollution one can put into the commons because the polluters have no incentive to do so themselves. We have to choose the best management strategy to correct this market problem. Many of us have grappled with theories of which kind of intervention would best correct the overuse of resources. One of the most important contributors to this field is Professor Carol Rose, who has analyzed various methods of pollution-control strategies and drew conclusions about intervention choice based on the overall pressure faced by a resource. Importantly, she focused us not just on the effect a strategy would have on the resource itself, but its costs for the regulated community and costs for the government to enforce the strategy.

It is a great honor to be asked to pay tribute to Carol Rose, whose work has been critically important to my own scholarship and to that of so many of my peers. Carol has been an inspiration to several generations of scholars, not only because of the many keen insights she has contributed to several different fields of law, but also, perhaps especially, because of her style of thinking, writing, and working with other scholars. Carol's modesty, her incredible ability to cut right to the heart of the matter in the most down-to-earth, but always amazingly well-turned phrase, and her generosity to other scholars are models of what a more engaged, more honest, and more gracious scholarly community could be. Carol likes to organize things in lists-her articles include a dozen propositions on property and takings, seven arguments on property, and so on. I am going to offer, then, a list of the top three reasons that Carol's contributions to the "vastly overwritten" takings literature, to use her phrase, are genuine advances of a very special sort. In the hope of spurring Carol to develop her contributions into a more comprehensive theory about how to ensure that government acts efficiently and fairly when regulating property, I am then going to propose the outline for what I hope will be her book on takings.

The question of the extent to which previously recognized property rights should continue to be protected has undoubtedly bedeviled every legal system that has attempted to address it. On the one hand, the legal idea of property reflects a broad societal commitment to the continued honoring of historically based entitlements on which individuals depend. On the other hand, every complex society is acutely aware of the inadequacy of the simple idea of the legal protection of existing rights as a response to human poverty, environmental degradation, and other critical problems. This issue of who has what - or who can count on what - is at the heart of the American takings problem. Our feelings and fears about poverty, wealth, preservation, and change fuel legal and political battles over the question of the taking of property by government. Property is seen as a bulwark which protects individual wealth, liberty, and autonomy. Whether government can impair this bulwark - without recognizing that impairment-implicates, on the deepest levels, our fundamental feelings of security. Because of the complexities and extraordinarily high stakes in this field, it presents particular fascinations and minefields for scholars. It is difficult to give useful advice about takings law without oversimplifying the issues or short changing our own, conflicting emotions. In its efforts in this task, the work of Professor Carol Rose is without peer. It is (at the same time) intellectually profound, meticulously balanced, practically useful, and boldly and provocatively passionate.

I met Carol many years before Carol met me. In the fall of 1986 when I was starting my second year of law school I signed up to work on the law review, and my very first assignment was to check the accuracy of the footnotes in a manuscript called Crystals and Mud in Property Law. I wish I could say that Crystals and Mud changed my life, but that would be putting it too strongly. It did nudge my life in a new direction a little bit, though. I didn't know anything about what law professors wrote. I had been through a year of law school, and I had read lots of those edited opinions in casebooks, so I guess I must have expected scholarship to be the same - kind of boring, in that pugnacious harrumphing lawyerly style. Of course Crystals and Mud turned out to be exactly the opposite. It was fascinating stuff, but for me the main thing wasn't the substance but the style. It was written in the voice of a person you'd actually want to meet, someone who wasn't trying to win an argument at all costs, but rather a person who was clearly amused by the people and the events she was describing but who at the same time retained enough empathy for them and their predicament to want to understand why they did what they did. I wanted to write like this mysterious Carol Rose. And that's what I've been trying to do ever since.

In 1930, Judge Learned Hand, widely regarded as one of the most distinguished judges in our nation's history, spoke to the Juristic Society at the University of Pennsylvania Law School. In his address, "Sources of Tolerance," he told his listeners "I venture to believe that it is as important to a judge called upon to pass on a question of constitutional law, to have at least a bowing acquaintance with Acton and Maitland, with Thucydides, Gibbon, and Carlyle, with Homer, Dante, Shakespeare and Milton, with Machiavelli, Montaigne and Rabelais, with Plato, Bacon, Hume and Kant, as with the books which have been specifically written on the subject." Hand's remarks assume three points that form the central focus of this essay. The first is that the study of law is either part of or is strongly connected to the humanities. The second is that the lawyer or legal scholar called upon to discuss and analyze legal questions cannot do so by looking merely within the confines of traditional legal materials: cases, statutes, and "books which have been specifically written on the subject" of law. Instead, he or she needs assistance and edification from other sources. The third is that those external sources of knowledge are to be found not in the natural sciences or the social sciences, but in subjects that we customarily call "the humanities." Hand is not merely assuming these things. He also presents himself to us as a wise jurist who has been influenced by the "great books" he has selected for our attention. Because he is himself familiar with each of the writers he mentions, he enjoys membership in a "republic of letters," the sort of membership that is necessary for anyone who wishes to "live greatly in the law." There was nothing particularly unusual about these assumptions in the early twentieth century, particularly coming from an elite member of the legal profession like Hand. Moreover, membership in the American republics of law and letters had run both ways. Robert Ferguson's important book, Law and Letters in American Culture, discusses the many late-eighteenth- and early-nineteenth-century American writers who had been trained as lawyers (and in many instances, had actually practiced law), including Charles Brockden Brown, Hugh Henry Brackenridge, Washington Irving, William Bryant, and James Fenimore Cooper. One might also think of Hand's contemporary, the Harvard Law School-educated poet Archibald McLeish, or, closer to our own time, writers ranging from Louis Auchincloss to Scott Turow and John Grisham.

One would be hard pressed to find a more controversial or nebulous human right than the "right to health"-a right that stems primarily, although not exclusively, from Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) and requires governments to recognize "the right of everyone to the highest attainable standard of physical and mental health." While activists, nongovernmental organizations, and scholars have made significant progress in promoting a human rights approach to health and the field of health and human rights more generally, the question of a philosophical and conceptual foundation-a theory-for the right to health has fallen through the cracks that emerge from an interdisciplinary intersection of medical ethics, international relations, international human rights law, health policy, health law, and public health law. International human rights law scholars working in public health and health policy have typically focused on government's binding legal obligations to promote and protect both public health and human rights. They have drawn on human rights to address public health issues, especially the HIV/AIDS pandemic. Although scholars in this field have, in the words of one academic, "developed a sophisticated understanding of civil and political rights," they "have failed systematically to examine the meaning and enforcement of social and economic rights." And while General Comment No. 14, issued by the UN Committee on Economic, Social, and Cultural Rights (CESCR), provides the most reliable report on the right to health, it too, by necessity and purpose, lacks a systematic philosophical grounding for the right to health. The few international relations scholars and practitioners who do focus on health issues have provided primarily three dominant frameworks for international health cooperation: national and security interests; domestic and global economic development; and international human rights. Human rights approaches have filled a "moral gap" in the international global health discourse left primarily by economic and geo-political governance frameworks for international health issues. But the human rights strategy has been only moderately effective, for example in efforts to control and mitigate the HIV/AIDS epidemic and to implement the constitution of the World Health Organization (WHO). Furthermore, international relations as an academic discipline has not focused on providing a theory-based in moral and political philosophy - of a right to health.

I have for some time been puzzled about the status of narrative in the law, and more particularly the status of talk about narrative in the law. On the one hand, there has been plenty of legal scholarship-starting more or less from the "storytelling" issue of Michigan Law Review in 1989 - on the uses (and the virtues) of "outsider" narratives in the law, and even before that there was Robert Cover's foundational Nomos and Narrative. It has become something of a commonplace - too much of one - that legal storytelling has the virtue of presenting the lived experience of marginalized groups or individuals in a way that traditional legal reasoning doesn't. This view has of course been criticized, and some of the more naïve assumptions about the moral benefits of storytelling have been questioned. On the other hand, I am not aware that all this story talk has made any difference to legal actors. Trial advocates tell stories - they have always told stories - and clinical training in advocacy includes some attention to construction of the story you will tell in the courtroom (which of course echoes the training in rhetoric given to lawyers in antiquity, when rhetoric and the law were inextricably interwoven). In particular, it is assumed that juries often decide verdicts on the basis of the more persuasive story presented at trial. Yet you search in vain for any explicit recognition by legal decisionmakers that how a story is told can make a difference in legal outcomes. That is not quite true: there are moments when the law notes that a story has been mis-told, or not told according to the rules (of evidence, for instance), or doesn't make sense as told. Appellate courts are to some degree the enforcers of rule-governed storytelling. Yet they don't talk narrative talk. They are conspicuously lacking in the analytic vocabulary and tools of literary "narratology," for instance. Narratology - which I shall discuss in more detail later on- distinguishes between events in the world and the ways in which they are presented in narratives. It pays attention to the parts of narrative and how they combine in a plot; to how we understand the initiation and completion of an action; to standard narrative sequences (stock stories, one might say); and to the movement of a narrative through a state of disequilibrium to a final outcome that reestablishes order. Narratology also studies perspectives of telling: who sees and who tells, the explicit or implicit relation of the teller to what is told, the varying temporal modalities between the told and its telling. I know of only one instance when the Supreme Court shows an explicit, quasi-narratological awareness of narrative as a category of thought and presentation of reality (I'll come back to it later), and it has not produced a sequel.