Working Paper No. 10-35:
The Really New Property: A Skeptical Appraisal
Date Posted: July 2010
Abstract (below) | Full text (most recent) on SSRN
This article reviews recent scholarship invoking the prophetic tradition in American jurisprudence and calling for the transformation of property law. It contrasts imposed top-down social change with Burkean and Oakeshottian gradual change derived from conversation within our legal and cultural tradition. The work of Robert Ellickson is presented as illustrating the development of property law in the Burkean tradition. Transformative property scholarship, on the other hand, largely reflects Osborne and Gaebler’s view that government should steer and private actors row, reinforced by Thaler and Sunstein’s call for soft paternalism. The article asserts, however, that Kant and Berlin’s admonition that all of humankind is “crooked timber” precludes officials from a privileged position, a postulate well supported by public choice theory.
The article views the change in conceptual thinking from Hohfeldian property to Heller’s anticommons and assertions of disintegration and entropy of property. These set the stage, for instance, for advocacy of “rightsizing,’ through the shrinking private parcels through smart growth and densification, and the supersizing of government-controlled land through condemnation for urban redevelop.
Other topics discussed are regionalism, new governance, and the creation of affordable housing, through, among other things, the rearrangement of traditional landlord-tenant relationships. The article expresses skepticism that flaws inherent in the top-down transformation of property would permit outcomes that are coherent and effective, and could withstand capture by affected interest groups.