Properties of Property

Abstract

Properties of Property is a reader in property theory intended for both a U.S. and an international audience, within and without law schools, both as the main text for property theory seminars and as a companion to a Property casebook. It weaves the thread between theory and the concrete details of everyday life by exploring the normative and structural foundations of property and connecting them to particular property-related institutions. The selections excerpted as the main texts for the various chapters represent a broad spectrum of the leading forces in property theory from both within and without the legal academic community. They provide important insights into the topics covered, and raise many issues for deliberation. Following each excerpt, we add a series of notes, comments, and questions, designed both to flesh out the topic and to stimulate discussion. These notes also make some references to other scholarly writings to provide a balanced account of contending approaches to the matter at hand.

Properties of Property begins with readings that provide a broad theoretical framework. Thus, Part I – Why Property – addresses the major liberal normative accounts of property, focusing on labor, personhood, liberty, rights, welfare, citizenship, and distributive justice. Part II – How Property – shifts from the normative plane to the conceptual, contemplating the question of how ownership and property rights are structured, both legally and in social practice. Here we consider the choice between understanding property as “despotic” dominion or a bundle of rights, the role of the numerus clausus principle, the competition between exclusion and social responsibility, the functions of exit and entry, the place of social norms, as well as the features of common and public property and the issue of commodification.

In Part III we consider Property in Action. We include materials that cover five grounded topics, namely, things, the family, the home, transitions, and the environment. Things include information, body parts, the so-called “new property,” and rights to artifacts of cultural heritage. Family includes inheritance and intergenerational justice as well as marital property and trusts. Home, in addition to the home strictu sensu, also covers residential associations as well as the problems of homelessness and of housing discrimination. Finally, Transitions touches on property problems that result from shifts to new political and legal regimes. These problems range from eminent domain and regulatory takings to aboriginal land claims, reparations for historic injustices, and the shift from a Marxist political and economic regime to a market-based regime. Throughout Part III our aim is to bring theoretical problems concerning property to life by grounding them in some of the most persistent and contentious problems facing societies around the world. This part thus demonstrates why theory matters and provides some tools for analyzing controversial social phenomena in a theoretically sophisticated way.