Canons of Property Talk, or, Blackstone's Anxiety

Yale Law Journal

Volumn 108, Issue 3, 1998, Pages 601-632

  Rose, Carol M ^a  

^a NONE

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EID: 0000056271     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: 10.2307/797498     Document Type: Article

References (163)

1. 2 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 2 (facsimile ed. 1979) (1765-69). Subsequent citations will cite to the star edition, the pages of which are the same as those in the facsimile edition. For discussion of some of the citation issues on the Commentaries, including confusion over the star edition, see Albert W. Alschuler, Rediscovering Blackstone, 145 U. PA. L. REV. 1, 3 n.4 (1996).
2. 2 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 2 (facsimile ed. 1979) (1765-69). Subsequent citations will cite to the star edition, the pages of which are the same as those in the facsimile edition. For discussion of some of the citation issues on the Commentaries, including confusion over the star edition, see Albert W. Alschuler, Rediscovering Blackstone, 145 U. PA. L. REV. 1, 3 n.4 (1996).
3. 2 WILLIAM BLACKSTONE, COMMENTARIES *1. On Blackstone's influence in the United States, see Alschuler, supra note 1, at 5-8, which stresses Blackstone's influence in America through the 19th century; and Dennis R. Nolan, Sir William Blackstone and the New American Republic: A Study of Intellectual Impact, 51 N.Y.U. L. REV. 731, 767 (1976), which concludes that Blackstone's influence was diffuse but very significant. Alschuler claims that Blackstone is now largely treated as a historical figure, generally somewhat negatively. See Alschuler, supra note 1, at 16-17. On the other hand, negative treatment implies a continuing influence, in the sense that it signals a necessity to refute Blackstone or to distance oneself from his views.
4. 2 WILLIAM BLACKSTONE, COMMENTARIES *1. On Blackstone's influence in the United States, see Alschuler, supra note 1, at 5-8, which stresses Blackstone's influence in America through the 19th century; and Dennis R. Nolan, Sir William Blackstone and the New American Republic: A Study of Intellectual Impact, 51 N.Y.U. L. REV. 731, 767 (1976), which concludes that Blackstone's influence was diffuse but very significant. Alschuler claims that Blackstone is now largely treated as a historical figure, generally somewhat negatively. See Alschuler, supra note 1, at 16-17. On the other hand, negative treatment implies a continuing influence, in the sense that it signals a necessity to refute Blackstone or to distance oneself from his views.
5. See James Madison, Property, NAT'L GAZETTE, Mar. 27, 1792, reprinted in 14 THE PAPERS OF JAMES MADISON 266 (Robert A. Rutland et al. eds., 1983).
6. See James Madison, Property, NAT'L GAZETTE, Mar. 27, 1792, reprinted in 14 THE PAPERS OF JAMES MADISON 266 (Robert A. Rutland et al. eds., 1983).
7. For modern scholars' citation of this passage as illustrative of Blackstonian property, see, for example, GREGORY S. ALEXANDER, COMMODITY AND PROPRIETY: COMPETING VISIONS OF PROPERTY IN AMERICAN LEGAL THOUGHT, 1776-1970, at 87 (1997); MARGARET JANE RADIN, REINTERPRETING PROPERTY 131 (1993);
8. For modern scholars' citation of this passage as illustrative of Blackstonian property, see, for example, GREGORY S. ALEXANDER, COMMODITY AND PROPRIETY: COMPETING VISIONS OF PROPERTY IN AMERICAN LEGAL THOUGHT, 1776-1970, at 87 (1997); MARGARET JANE RADIN, REINTERPRETING PROPERTY 131 (1993);
9. and Robert C. Ellickson, Property in Land, 102 YALE L.J. 1315, 1317 (1993).
10. See 2 BLACKSTONE, supra note 2, at *44-l 19; see also Joseph William Singer, No Right To Exclude: Public Accommodations and Private Property, 90 NW. U. L. REV. 1283, 1308-10 (1996) (discussing Blackstone's treatment of merchants' duty to serve the public).
11. See Alschuler, supra note 1, at 34.
12. See 1 BLACKSTONE, supra note 2, at * 127.
13. See CAROL M. ROSE, PROPERTY AND PERSUASION 58, 62 (1994) (describing the medieval and early modern view of property as "propriety," a tradition in which property ownership was expected to carry a number of responsibilities, including caring for the impoverished).
14. Early American commentators evidently so understood Blackstone. See ALEXANDER, supra note 4, at 87 (noting that Daniel Webster and American lawyers regarded the "Blackstonian conception" as a "myth" with respect to its English context).
15. For some of the symbolic freight of the exclusivity trope, see Louise A. Halper, Tropes of Anxiety and Desire: Metaphor and Metonymy in the Law of Takings, 8 YALE J.L. & HUMAN. 31, 57-58 (1996).
16. See, e.g., Nollan v. California Coastal Comm'n, 483 U.S. 825, 831 (1987) (concerning the right to exclude); Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435-36 (1982) (same); Halper, supra note 10, at 57-58 (describing the "anxiety of boundaries"); see also infra notes 53-55, 85-86, 104-17 and accompanying text.
17. See supra note 4; see also Alschuler, supra note 1, at 30 n.175 (complaining that the passage is generally cited out of context).
18. 2 BLACKSTONE, supra note 2, at *2.
19. Id. One of the few analyses to go on to quote the nervous later lines is Robert P. Burns, Blackstone's Theory of the "Absolute" Rights of Property, 54 U. CIN. L. REV. 67, 75 (1985). Without quoting these lines, however, some other scholars have observed that Blackstone did not think property was strictly founded on natural law. See Alschuler, supra note 1, at 28-36; Duncan Kennedy, The Structure of Blackstone's Commentaries, 28 BUFF. L. REV. 209, 311-16 (1979).
20. Id. One of the few analyses to go on to quote the nervous later lines is Robert P. Burns, Blackstone's Theory of the "Absolute" Rights of Property, 54 U. CIN. L. REV. 67, 75 (1985). Without quoting these lines, however, some other scholars have observed that Blackstone did not think property was strictly founded on natural law. See Alschuler, supra note 1, at 28-36; Duncan Kennedy, The Structure of Blackstone's Commentaries, 28 BUFF. L. REV. 209, 311-16 (1979).
21. See infra text accompanying notes 117-121.
22. 2 BLACKSTONE, supra note 2, at *2; see also Herbert J. Storing, William Blackstone, in HISTORY OF POLITICAL PHILOSOPHY 622, 624-31 (Leo Strauss & Joseph Cropsey eds., 3d ed. 1987) (stressing that Blackstone wrote for an audience of practical gentlemen rather than philosophers and that he therefore emphasized stability and practice over first principles and theoretical extremes).
23. 2 BLACKSTONE, supra note 2, at *2.
24. See id. at *2-3.
25. Id. at *2-5.
26. Id. at *7.
27. Id. at *8.
28. In Blackstone's presentation, property has a place as a natural right, but it is at best incomplete, applying to current occupancy but evidently not to more permanent claims, and especially not to claims based on inheritance. See id. at *11; Kennedy, supra note 14, at 313-15 (arguing that only occupancy or use rights were natural for Blackstone in primitive society); see also Alschuler, supra note 1, at 28-36 (discussing Blackstone's distinction between "absolute" rights, which were derived from nature, and "relative" rights, which were derived from society); Bums, supra note 14, at 71-72 (same); cf. Storing, supra note 16, at 631 (noting Blackstone's interest in blurring conventional systems with nature, especially with respect to property). David Hume had also argued that lasting property was not a direct product of human nature because it was based on convention and the "artificial" or learned respect for the rights of others. See DAVID HUME, A TREATISE OF HUMAN NATURE 488-91 (L.A. Selby-Bigge ed., Oxford Univ. Press, 2d ed. 1978) (1739-40).
29. As Hume argued, Mankind is an inventive species; and where an invention is obvious and absolutely necessary, it may as properly be said to be natural as any thing that proceeds immediately from original principles, without the intervention of thought or reflexion. . . . Nor is the expression improper to call them Laws of Nature [principles of justice]; if by natural we understand what is common to any species, or even if we confine it to mean what is inseparable from the species. HUME, supra note 22, at 484; see also Burns, supra note 14, at 85 (arguing that civil institutions as well as property are in a sense "providential").
30. See, for example, reports on the greater productivity of private farming over collective farming in socialist or formerly socialist states, such as Richard Critchfield, Why Soviet Breadbasket Is Never Full, CHRISTIAN SCI. MONITOR, Apr. 22, 1980, at 12, which describes the disastrous Chinese collectivization of agriculture and the greater productivity caused by the reintroduction of private farming; and Gail DeGeorge & Gail Reed, Private Farming: Ten Acres and a Loan, BUS. WK. (Int'l Editions), Mar. 17, 1997, at 37, which describes the greater agricultural productivity caused by the introduction of private farms in Cuba.
31. See, for example, reports on the greater productivity of private farming over collective farming in socialist or formerly socialist states, such as Richard Critchfield, Why Soviet Breadbasket Is Never Full, CHRISTIAN SCI. MONITOR, Apr. 22, 1980, at 12, which describes the disastrous Chinese collectivization of agriculture and the greater productivity caused by the reintroduction of private farming; and Gail DeGeorge & Gail Reed, Private Farming: Ten Acres and a Loan, BUS. WK. (Int'l Editions), Mar. 17, 1997, at 37, which describes the greater agricultural productivity caused by the introduction of private farms in Cuba.
32. See, e.g., GARY D. LIBECAP, CONTRACTING FOR PROPERTY RIGHTS 19-26 (1989) (describing impediments to productive changes in property institutions); cf. MANCUR OLSON, THE RISE AND DECLINE OF NATIONS: ECONOMIC GROWTH, STAGFLATION, AND SOCIAL RIGIDITIES 77-79 (1982) (describing the decline of growth-producing governmental policies in stable democracies such as Great Britain due to the increasing power of rent-seeking special interest groups).
33. See, e.g., GARY D. LIBECAP, CONTRACTING FOR PROPERTY RIGHTS 19-26 (1989) (describing impediments to productive changes in property institutions); cf. MANCUR OLSON, THE RISE AND DECLINE OF NATIONS: ECONOMIC GROWTH, STAGFLATION, AND SOCIAL RIGIDITIES 77-79 (1982) (describing the decline of growth-producing governmental policies in stable democracies such as Great Britain due to the increasing power of rent-seeking special interest groups).
34. See ROSE, supra note 8, at 37-38; James E. Krier, The Tragedy of the Commons, Part Two, 15 HARV. J.L. & PUB. POL'Y 325, 335-39 (1992).
35. See, e.g., Geoffrey P. Miller, Comment: Economic Efficiency and the Lockean Proviso, 10 HARV. J.L. & PUB. POL'Y 401 (1987) (arguing that the Lockean proviso - that first possessors leave "enough, and as good" for later claimants - may be satisfied by the greater wealth that first possessors produce simply by introducing a wealth-enhancing property regime).
36. 2 BLACKSTONE, supra note 2, at *8.
37. See Carol M. Rose, "Enough, and as Good" of What?, 81 NW. U. L. REV. 417, 438-39 (1987) (describing a private property regime as a large-scale agreement not to succumb to the "prisoners' dilemma"); see also Carol M. Rose, Trust in the Mirror of Betrayal, 75 B.U. L. Rev. 531, 531-33 (1995) and sources cited therein (discussing similar difficulties of mutual forbearance in various contexts).
38. See Carol M. Rose, "Enough, and as Good" of What?, 81 NW. U. L. REV. 417, 438-39 (1987) (describing a private property regime as a large-scale agreement not to succumb to the "prisoners' dilemma"); see also Carol M. Rose, Trust in the Mirror of Betrayal, 75 B.U. L. Rev. 531, 531-33 (1995) and sources cited therein (discussing similar difficulties of mutual forbearance in various contexts).
39. 2 BLACKSTONE, supra note 2, at *16-17.
40. Id. at *21.
41. Id. at *382-83.
42. See David Lieberman, Property, Commerce, and the Common Law: Attitudes to Legal Change in the Eighteenth Century, in EARLY MODERN CONCEPTIONS OF PROPERTY 144, 148 (John Brewer & Susan Staves eds., 1995).
43. 3 BLACKSTONE, supra note 2, at *268; see also Storing, supra note 16, at 630 (analogizing this passage to Blackstone's larger effort to reform while preserving the old). This passage is one of the many singled out for attack in Jeremy Bentham's venomous critique of the Commentaries. Bentham criticized Blackstone for failing to recognize the darker forces that might live in old structures. See JEREMY BENTHAM, A Fragment on Government, in A FRAGMENT ON GOVERNMENT AND AN INTRODUCTION TO THE PRINCIPLES OF MORALS AND LEGISLATION 1, 19 & n.1 (Wilfrid Harrison ed., Basil Blackwell 1948) (1776).
44. 1 BLACKSTONE, supra note 2, at *76; see also Storing, supra note 16, at 628-29 (arguing that Blackstone consistently rested law on custom).
45. See 2 BLACKSTONE, supra note 2, at *265.
46. See HUME, supra note 22, at 489-91 (arguing that property and justice arise not from human nature but from convention).
47. See id. at 490-91 (associating justice with stability of possession); see also ADAM SMITH, LECTURES ON JURISPRUDENCE 5 (R.L. Meek et al. eds., 1978) (1762) (asserting that the chief aim of government is to "maintain justice; to prevent the members of a society from incroaching on one another's property . . . . The design here is to give each one the secure and peacable possession of his own property. {The end proposed by justice is the maintaining [of] men in what are called their perfect rights.}").
48. See 2 BLACKSTONE, supra note 2, at *458-59, *466.
49. See Lieberman, supra note 33, at 147-49 (arguing that, while Blackstone may have had more interest in commerce than is apparent from his text, he ultimately had less familiarity with a commercial society).
50. See ROSE, supra note 8, at 172-73 (arguing that Blackstone's brief remarks on water use ignored the existing doctrine, although they may have encouraged the development of mills).
51. See 2 BLACKSTONE, supra note 2, at *402-06.
52. See Frank I. Michelman, Ethics, Economics, and the Law of Property, in NOMOS XXIV: ETHICS, ECONOMICS, AND THE LAW 3, 8-21 (1982) (arguing that property requires a principle of "composition"). Thomas Grey argues that the modern "bundle of sticks" metaphor undermines the commonsense and moral understanding of property. See Thomas C. Grey, The Disintegration of Property, in NOMOS XXII: PROPERTY 69, 76-77 (1980). But the complexities of 18th-century property that Blackstone described suggest an even less integrated view of property in that era.
53. See Frank I. Michelman, Ethics, Economics, and the Law of Property, in NOMOS XXIV: ETHICS, ECONOMICS, AND THE LAW 3, 8-21 (1982) (arguing that property requires a principle of "composition"). Thomas Grey argues that the modern "bundle of sticks" metaphor undermines the commonsense and moral understanding of property. See Thomas C. Grey, The Disintegration of Property, in NOMOS XXII: PROPERTY 69, 76-77 (1980). But the complexities of 18th-century property that Blackstone described suggest an even less integrated view of property in that era.
54. JOHN E. CRIBBET ET AL., PROPERTY: CASES AND MATERIALS (7th ed. 1996). This text was adopted by 57 law schools in 1994-95, according to an informal survey by Foundation Press. See Foundation Press, Subject Area: Property (1995) (unpublished informal survey of textbook adoptions distributed to the Board of Editors of Foundation Press, on file with author and cited with permission of Foundation Press).
55. JESSE DUKEMINIER & JAMES E. KRIER, PROPERTY (4th ed. 1998). The third edition was adopted by 110 law schools, according to the Foundation Press survey. See Foundation Press, supra note 44.
56. JOSEPH W. SINGER, PROPERTY LAW: RULES, POLICIES, AND PRACTICES (1993). There were 27 law school adoptions in 1994-95, an increase from 18 in 1993-94. See Foundation Press, supra note 44.
57. It is instructive to compare these casebooks' treatment of one of the chestnuts of property law, Pierson v. Post, 3 Cai. R. 175 (N.Y. Sup. Ct. 1805), an early 19th-century New York case concerning the conditions for reducing a wild animal to possession. Cribbet treats it as a footnote in the doctrine of the law of "finds." CRIBBET, supra note 44, at 105. Dukeminier and Krier use it as the opening case in a sequence that ends with a discussion of the economic concept of "externality." DUKEMINIER & KRIER, supra note 45, at 19. Singer sandwiches the case between materials illustrating the indeterminate and political character of legal definitions of property. See SINGER, supra note 46, at 56.
58. JOSEPH K. ANGELL, A TREATISE ON THE RIGHT OF PROPERTY IN TIDE WATERS AND IN THE SOIL AND SHORES THEREOF (1847).
59. H.G. WOOD, A PRACTICAL TREATISE ON THE LAW OF NUISANCES IN THEIR VARIOUS FORMS; INCLUDING REMEDIES THEREFOR AT LAW AND IN EQUITY (3d ed. 1893). The title page notes that the author is also "Author of 'The Law of Master and Servant,' 'Fire Insurance,' 'Landlord and Tenant,' 'The Limitation of Actions,' etc., etc., etc."
60. Duncan Kennedy suggests that property was a particularly retrograde academic area after the later 19th century, one left behind by the Langdellian revolution in "scientific" legal thinking. See Kennedy, supra note 14, at 349.
61. See, e.g., ROBERT C. ELLICKSON, ORDER WITHOUT LAW: HOW NEIGHBORS SETTLE DISPUTES (1991) (deriving a theory of norms from the behavior of a community of landowners); Ellickson, supra note 4 (using social theory to analyze a broad spectrum of landownership practices).
62. Similarly, it is relatively easy to establish a simple registration system for automobiles, since any secured claims die with the vehicle. Landed claims, because they can last so long, can more easily get lost in the records, or refer to non-record events, fouling up simple systems -including the Torrens system, which was borrowed from the registration of vessels. See ROSE, supra note 8, at 205-08.
63. See, e.g., Nollan v. California Coastal Comm'n, 483 U.S. 825, 831 (1987); Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435-36 (1982).
64. For example, the scholarly division of a right of "use" from a right of "income" may obscure the fact that these are in a sense alternatives, rather than rights simultaneously held. A person's decision whether to use property herself is influenced by the amount another might pay her for it. See ROSE, supra note 8, at 281.
65. For a description of the preference for informality in neighborly give-and-take, see ELLICKSON, supra note 51, at 76-81.
66. Tocqueville's famous commentary on the conservatism of American lawyers argues that this conservatism derives in part from the lawyers' knowledge of an arcane system of precedents. See ALEXIS DE TOCQUEVILLE, 1 DEMOCRACY IN AMERICA 276 (Phillips Bradley ed., Alfred A. Knopf 1945) (1834).
67. See ROBERT NOZICK, ANARCHY, STATE AND UTOPIA 150-53 (1974).
68. See RICHARD A. EPSTEIN, TAKINGS: PRIVATE PROPERTY AND THE POWER OF EMINENT DOMAIN 334-38 (1985) (admiring but criticizing Nozick).
69. See, e.g., Richard A. Epstein, Possession as the Root of Title, 13 GA. L. REV. 1221, 1222-23, 1226 n.6, 1241 (1979) (arguing for the advantages of common law sources, describing Roman law sources, and arguing that the first possession doctrine persists through all time). For somewhat similar identifications of fundamental rights with common law practices, see Douglas W. Kmiec, The Coherence of the Natural Law of Property, 26 VAL. U. L. REV. 367, 383-84 (1991), which argues that the natural rights tradition foresees the prevention of harms, as in the common law doctrine of nuisance; and Johnson v. M'Intosh, 21 U.S. (8 Wheat) 543, 567-68 (1823), in which the defendants argued that Indians had no property under American positive law because they had none either in the law of nature or in the common law of former British colonies. For a critique of Epstein's "conceptualism" and presupposition of a single unchanging concept of property, see Margaret Jane Radin, The Consequences of Conceptualism, 41 U. MIAMI L. REV. 239 (1986).
70. See, e.g., Richard A. Epstein, Possession as the Root of Title, 13 GA. L. REV. 1221, 1222-23, 1226 n.6, 1241 (1979) (arguing for the advantages of common law sources, describing Roman law sources, and arguing that the first possession doctrine persists through all time). For somewhat similar identifications of fundamental rights with common law practices, see Douglas W. Kmiec, The Coherence of the Natural Law of Property, 26 VAL. U. L. REV. 367, 383-84 (1991), which argues that the natural rights tradition foresees the prevention of harms, as in the common law doctrine of nuisance; and Johnson v. M'Intosh, 21 U.S. (8 Wheat) 543, 567-68 (1823), in which the defendants argued that Indians had no property under American positive law because they had none either in the law of nature or in the common law of former British colonies. For a critique of Epstein's "conceptualism" and presupposition of a single unchanging concept of property, see Margaret Jane Radin, The Consequences of Conceptualism, 41 U. MIAMI L. REV. 239 (1986).
71. See, e.g., Richard A. Epstein, Possession as the Root of Title, 13 GA. L. REV. 1221, 1222-23, 1226 n.6, 1241 (1979) (arguing for the advantages of common law sources, describing Roman law sources, and arguing that the first possession doctrine persists through all time). For somewhat similar identifications of fundamental rights with common law practices, see Douglas W. Kmiec, The Coherence of the Natural Law of Property, 26 VAL. U. L. REV. 367, 383-84 (1991), which argues that the natural rights tradition foresees the prevention of harms, as in the common law doctrine of nuisance; and Johnson v. M'Intosh, 21 U.S. (8 Wheat) 543, 567-68 (1823), in which the defendants argued that Indians had no property under American positive law because they had none either in the law of nature or in the common law of former British colonies. For a critique of Epstein's "conceptualism" and presupposition of a single unchanging concept of property, see Margaret Jane Radin, The Consequences of Conceptualism, 41 U. MIAMI L. REV. 239 (1986).
72. See Michael Janofsky, Home-Grown Courts Spring up as Judicial Arm of the Far Right, N.Y. TIMES, Apr. 17, 1996, at A1.
73. See the rather inconclusive discussion in NOZICK, supra note 57, at 150-82.
74. See Epstein, supra note 59, at 1241-43 (defending the first possession principle on the basis of longstanding practice and social need, not philosophy).
75. See, e.g., Mary Ann Glendon, The Transformation of American Landlord-Tenant Law, 23 B.C. L. REV. 503 (1982) (assessing the transformation of American landlord-tenant law); Edward H. Rabin, The Revolution in Residential Landlord-Tenant Law: Causes and Consequences, 69 CORNELL L. REV. 517 (1984) (describing the causes, history, and effects of the "revolution" in landlord-tenant law).
76. See, e.g., Mary Ann Glendon, The Transformation of American Landlord-Tenant Law, 23 B.C. L. REV. 503 (1982) (assessing the transformation of American landlord-tenant law); Edward H. Rabin, The Revolution in Residential Landlord-Tenant Law: Causes and Consequences, 69 CORNELL L. REV. 517 (1984) (describing the causes, history, and effects of the "revolution" in landlord-tenant law).
77. See Glendon, supra note 63, at 521-28.
78. See, e.g., Robinson v. Diamond Hous. Corp., 463 F.2d 853, 860 (D.C. Cir. 1972) (citing Bruce Ackerman, Regulating Slum Housing Markets on Behalf of the Poor: Of Housing Codes, Housing Subsidies and Income Redistribution Policy, 80 YALE L.J. 1093 (1971) (arguing that market forces prevent landlords from passing on the increased costs of code enforcement to tenants through rent increases)).
79. In fact, this doctrinal change has been treated with great skepticism by economic theorists. See, e.g., Charles Meyers, The Covenant of Habitability and the American Law Institute, 27 STAN. L. REV. 879 (1975) (criticizing the Restatement draft position supporting the landlord's duty of habitability); see also Chicago Bd. of Realtors v. City of Chicago, 819 F.2d 732, 741-42 (7th Cir. 1987) (Posner & Easterbrook, JJ., concurring) (criticizing a variety of landlord-tenant "reforms").
80. Cf. Oliver Wendell Holmes, The Path of the Law, 10 HARV. L. REV. 457, 476-77 (1897) (referring to the law of prescription and remarking on the way that something one has "enjoyed and used" for a long time "takes root in [one's] being").
81. See, e.g., Jack L. Knetsch, The Endowment Effect and Evidence of Nonreversible Indifference Curves, 79 AM. ECON. REV. 1277-83 (1989) (describing the endowment effect and the original literature giving rise to the idea). Interestingly enough, Hume also noticed the endowment effect. See HUME, supra note 22, at 482 ("Men generally fix their affections more on what they are possess'd of, than on what they never enjoy'd: For this reason, it wou'd be greater cruelty to dispossess a man of any thing, than not to give it him.").
82. See 2 BLACKSTONE, supra note 2, at *265.
83. This reality is not lost on modern doctrinalists. See, e.g., John Edward Cribbet, Concepts in Transition: The Search for a New Definition of Property, 1986 U. ILL. L. REV. 1 (describing burgeoning special cases, and exceptions to rules that collectively show a "social side" of property).
84. See, e.g., Westfarm Assocs. v. Washington Suburban Sanitary Comm'n, 66 F.3d 669, 679 (4th Cir. 1995) (discussing "externalities"); Gail v. United States, 58 F.3d 580, 585 n.7 (10th Cir. 1995) (discussing "transaction costs").
85. See BENTHAM, supra note 34, at 3-4, 8-9, 15-22 (accusing Blackstone of impeding criticism and reform and describing passages of particular complacency).
86. See supra Section I.B.
87. RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW § 3.1, at 30 n.1 (3d ed. 1986).
88. See Harold Demsetz, Toward a Theory of Property Rights, 57 AM. ECON. REV. 347-59 (1967), reprinted in part in DUKEMINIER & KRIER, supra note 45, at 40. Demsetz gives no indication that he read Blackstone's story.
89. Demsetz, supra note 75, at 350.
90. See H. Scott Gordon, The Economic Theory of a Common-Property Resource: The Fishery, 62 J. POL. ECON. 124 (1954); Garrett Hardin, The Tragedy of the Commons, 162 SCIENCE 1243 (1968).
91. See H. Scott Gordon, The Economic Theory of a Common-Property Resource: The Fishery, 62 J. POL. ECON. 124 (1954); Garrett Hardin, The Tragedy of the Commons, 162 SCIENCE 1243 (1968).
92. For an explanation of this classic game theory problem in the context of similar problems, see Jack Hirshleifer, Evolutionary Models in Economics and Law: Cooperation Versus Conflict Strategies, 4 RES. IN LAW & ECON. 1, 17 (1982).
93. For some other variations on the optimistic creation-of-property stories, see ROSE, supra note 8, at 287, and the authorities cited therein.
94. R. H. Coase, The Problem of Social Cost, 3 J.L. & ECON. 1 (1960).
95. See, e.g., LIBECAP, supra note 25, at 12-26 (describing factors that impel and impede "contracting for property rights").
96. See Guido Calabresi & A. Douglas Melamed, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85 HARV. L. REV. 1089, 1106-07 (1972) (describing the use of liability rules instead of property rules where transactions costs would defeat value-enhancing transfers). For a modern reconsideration, see Louis Kaplow & Steven Shavell, Property Rules Versus Liability Rules: An Economic Analysis, 109 HARV. L. REV. 713 (1996).
97. See Guido Calabresi & A. Douglas Melamed, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85 HARV. L. REV. 1089, 1106-07 (1972) (describing the use of liability rules instead of property rules where transactions costs would defeat value-enhancing transfers). For a modern reconsideration, see Louis Kaplow & Steven Shavell, Property Rules Versus Liability Rules: An Economic Analysis, 109 HARV. L. REV. 713 (1996).
98. See Thomas W. Merrill, Trespass, Nuisance, and the Costs of Determining Property Rights, 14 J. LEGAL STUD. 13 (1985).
99. See Steven N.S. Cheung, The Structure of a Contract and the Theory of a Non-Exclusive Resource, 13 J.L. & ECON. 49 (1970).
100. See Clifford G. Holderness, A Legal Foundation for Exchange, 14 J. LEGAL STUD. 321 (1985); see also Frank H. Easterbrook, The Supreme Court 1983 Term-Foreword: The Court and the Economic System, 98 HARV. L. REV. 4, 10-12 (1984) (arguing that the Supreme Court is increasingly likely to consider cases from an "ex ante" perspective of defined rights, in order to ease transactions, rather than from the blurred "ex post" perspective of fairness).
101. See Clifford G. Holderness, A Legal Foundation for Exchange, 14 J. LEGAL STUD. 321 (1985); see also Frank H. Easterbrook, The Supreme Court 1983 Term-Foreword: The Court and the Economic System, 98 HARV. L. REV. 4, 10-12 (1984) (arguing that the Supreme Court is increasingly likely to consider cases from an "ex ante" perspective of defined rights, in order to ease transactions, rather than from the blurred "ex post" perspective of fairness).
102. See, e.g., BONNIE MCCAY & JAMES ACHESON, THE QUESTION OF THE COMMONS: THE CULTURE AND ECOLOGY OF COMMUNAL RESOURCES (1987); ELINOR OSTROM, GOVERNING THE COMMONS: THE EVOLUTION OF INSTITUTIONS FOR COLLECTIVE ACTION (1990).
103. See, e.g., BONNIE MCCAY & JAMES ACHESON, THE QUESTION OF THE COMMONS: THE CULTURE AND ECOLOGY OF COMMUNAL RESOURCES (1987); ELINOR OSTROM, GOVERNING THE COMMONS: THE EVOLUTION OF INSTITUTIONS FOR COLLECTIVE ACTION (1990).
104. See Robert Cooter, The Cost of Coase, 11 J. LEGAL STUD. 1, 17-18 (1982).
105. ELLICKSON, supra note 51, at 177-82.
106. See, e.g., Randal C. Picker, Simple Games in a Complex World: A Generative Approach to the Adoption of Norms, 64 U. CHI. L. REV. 1225 (1997) (giving a game-theoretic account of norm change through social learning that has implications for a wide variety of legal issues).
107. 0. See, e.g., ROBERT H. FRANK, PASSIONS WITHIN REASON: THE STRATEGIC ROLE OF THE EMOTIONS (1988); A vner Greif, Reputation and Coalitions in Medieval Trade: Evidence on the Maghribi Traders, 49 J. ECON. HIST. 857 (1989). For a popular presentation of the social organizations of commerce, see FRANCIS FUKUYAMA, TRUST: THE SOCIAL VIRTUES AND THE CREATION OF PROSPERITY (1995).
108. 0. See, e.g., ROBERT H. FRANK, PASSIONS WITHIN REASON: THE STRATEGIC ROLE OF THE EMOTIONS (1988); A vner Greif, Reputation and Coalitions in Medieval Trade: Evidence on the Maghribi Traders, 49 J. ECON. HIST. 857 (1989). For a popular presentation of the social organizations of commerce, see FRANCIS FUKUYAMA, TRUST: THE SOCIAL VIRTUES AND THE CREATION OF PROSPERITY (1995).
109. 0. See, e.g., ROBERT H. FRANK, PASSIONS WITHIN REASON: THE STRATEGIC ROLE OF THE EMOTIONS (1988); A vner Greif, Reputation and Coalitions in Medieval Trade: Evidence on the Maghribi Traders, 49 J. ECON. HIST. 857 (1989). For a popular presentation of the social organizations of commerce, see FRANCIS FUKUYAMA, TRUST: THE SOCIAL VIRTUES AND THE CREATION OF PROSPERITY (1995).
110. In Robert Axelrod's much-cited study of the "tit for tat" strategy that he regards as a prototype of successful cooperation, the players must begin with a "nice" move or the relationship will not get off the ground. ROBERT AXELROD, THE EVOLUTION OF COOPERATION (1984).
111. ROBERT C. ELLICKSON ET AL., PERSPECTIVES ON PROPERTY LAW at xii (1995)
112. (revising BRUCE A. ACKERMAN, ECONOMIC FOUNDATIONS OF PROPERTY LAW (1975)).
113. See generally Coase, supra note 80. But see, e.g., Mark Kelman, Consumption Theory, Production Theory, and Ideology in the Coase Theorem, 52 S. CAL. L. REV. 669, 672-73, 678-79, 681-82, 688-91 (1979) (giving examples of the ways in which individuals value existing endowments more highly than opportunities and criticizing the Coase Theorem for neglecting these differences' effects on trading outcomes).
114. See, e.g., Herbert Hovenkamp, Arrow's Theorem: Ordinalism and Republican Government, 75 IOWA L. REV. 949, 968 (1990) (describing a multiplicity of Pareto optimal distributions that depend on initial entitlements).
115. PIERRE JOSEPH PROUDHON, WHAT IS PROPERTY? (Benjamin R. Tucker trans., Howard Fertig 1966) (1840).
116. 1 KARL MARX, CAPITAL: A CRITIQUE OF POLITICAL ECONOMY 713-74 (Frederick Engels ed., Int'l Publishers 1967) (1887).
117. See ROBERTO MANGABEIRA UNGER, THE CRITICAL LEGAL STUDIES MOVEMENT 36-38 (1986) [hereinafter UNGER, CLS]; ROBERTO MANGABEIRA UNGER, WHAT SHOULD LEGAL ANALYSIS BECOME? 163-64 (1996) [hereinafter UNGER, LEGAL ANALYSIS]; see also Thomas F. McInerney III, Common Ground: Reconciling Rights and Communal Concerns in Real Property Law, 25 B.C. ENVTL. AFF. L. REV. 831, 846-50 (1998) (discussing Unger's views of property).
118. See ROBERTO MANGABEIRA UNGER, THE CRITICAL LEGAL STUDIES MOVEMENT 36-38 (1986) [hereinafter UNGER, CLS]; ROBERTO MANGABEIRA UNGER, WHAT SHOULD LEGAL ANALYSIS BECOME? 163-64 (1996) [hereinafter UNGER, LEGAL ANALYSIS]; see also Thomas F. McInerney III, Common Ground: Reconciling Rights and Communal Concerns in Real Property Law, 25 B.C. ENVTL. AFF. L. REV. 831, 846-50 (1998) (discussing Unger's views of property).
119. See ROBERTO MANGABEIRA UNGER, THE CRITICAL LEGAL STUDIES MOVEMENT 36-38 (1986) [hereinafter UNGER, CLS]; ROBERTO MANGABEIRA UNGER, WHAT SHOULD LEGAL ANALYSIS BECOME? 163-64 (1996) [hereinafter UNGER, LEGAL ANALYSIS]; see also Thomas F. McInerney III, Common Ground: Reconciling Rights and Communal Concerns in Real Property Law, 25 B.C. ENVTL. AFF. L. REV. 831, 846-50 (1998) (discussing Unger's views of property).
120. See UNGER, CLS, supra note 97, at 38-40; UNGER, LEGAL ANALYSIS, supra note 97, at 157-60.
121. See MARK KELMAN, A GUIDE TO CRITICAL LEGAL STUDIES 258 (1987) (observing that while ordinary outcomes may be predictable, contrary doctrines are always available).
122. See id. at 294-95 (giving examples of instances where the supposed principle of neutrality can misdescribe legal outcomes and mask bias).
123. For various strands of critical historiography, see Robert W. Gordon, Critical Legal Histories, 36 STAN. L. REV. 57, 71-100 (1984).
124. 02. See MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1780-1860 at 32-42, 101-102 (1977). But see ROSE, supra note 8, at 165-88 (offering a different account); Stephen F. Williams, Transforming American Law: Doubtful Economics Makes Doubtful History, 25 UCLA L. REV. 1187 (1978) (book review) (criticizing Horwitz's thesis).
125. 02. See MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1780-1860 at 32-42, 101-102 (1977). But see ROSE, supra note 8, at 165-88 (offering a different account); Stephen F. Williams, Transforming American Law: Doubtful Economics Makes Doubtful History, 25 UCLA L. REV. 1187 (1978) (book review) (criticizing Horwitz's thesis).
126. See Joseph William Singer, Sovereignty and Property, 86 NW. U. L. REV. 1, 5-6 (1991).
127. See Gordon, supra note 101, at 98-100, 109-12; see also KELMAN, supra note 99, at 270-71 (noting that critical thinkers believe property-law categories block the reimagination of existing distributions); James L. Kainen, Nineteenth Century Interpretations of the Federal Contract Clause: The Transformation from Vested to Substantive Rights Against the State, 31 BUFF. L. REV. 381, 399-401, 451, 476-77 (1982) (describing the process by which nineteenth-century legal elites shifted the concept of rights from "vested" to "substantive," leading to the reification of the laissez-faire principle of "freedom of contract"); Mark Tushnet, An Essay on Rights, 62 TEX. L. REV. 1363, 1382-84 (1984) (criticizing the "reification" of rights). Kelman appears to think that legal doctrine's flaw is less its bias (though it may indeed be biased) than its tendency to deny contradictions and promote complacency. See KELMAN, supra note 99, at 286.
128. See Gordon, supra note 101, at 98-100, 109-12; see also KELMAN, supra note 99, at 270-71 (noting that critical thinkers believe property-law categories block the reimagination of existing distributions); James L. Kainen, Nineteenth Century Interpretations of the Federal Contract Clause: The Transformation from Vested to Substantive Rights Against the State, 31 BUFF. L. REV. 381, 399-401, 451, 476-77 (1982) (describing the process by which nineteenth-century legal elites shifted the concept of rights from "vested" to "substantive," leading to the reification of the laissez-faire principle of "freedom of contract"); Mark Tushnet, An Essay on Rights, 62 TEX. L. REV. 1363, 1382-84 (1984) (criticizing the "reification" of rights). Kelman appears to think that legal doctrine's flaw is less its bias (though it may indeed be biased) than its tendency to deny contradictions and promote complacency. See KELMAN, supra note 99, at 286.
129. See JEREMY BENTHAM, Principles of the Civil Code, in THE THEORY OF LEGISLATION 88, 119-20 (C.K. Ogden ed. & Richard Hildreth trans., Kegan Paul, Trench, Trubner & Co. 1931) (1802).
130. Duncan Kennedy, Form and Substance in Private Law Adjudication, 89 HARV. L. REV. 1685, 1710 (1976).
131. See id. at 1742-45, 1773-74.
132. A reprise of this argument appeared in Laurence Tribe's critique of an influential article by Frank Easterbrook. See Laurence H. Tribe, Constitutional Calculus: Equal Justice or Economic Efficiency?, 98 HARV. L. REV. 592, 600-01 (1985) (critiquing Easterbrook, supra note 85). But see Frank H. Easterbrook, Method, Result, and Authority: A Reply, 98 HARV. L. REV. 622, 624-26 (1985) (acknowledging that ex ante approaches are not always dispositive but reasserting that they are informative, productive of social wealth, and more appropriate for judges than Tribe's constitutive approach).
133. A reprise of this argument appeared in Laurence Tribe's critique of an influential article by Frank Easterbrook. See Laurence H. Tribe, Constitutional Calculus: Equal Justice or Economic Efficiency?, 98 HARV. L. REV. 592, 600-01 (1985) (critiquing Easterbrook, supra note 85). But see Frank H. Easterbrook, Method, Result, and Authority: A Reply, 98 HARV. L. REV. 622, 624-26 (1985) (acknowledging that ex ante approaches are not always dispositive but reasserting that they are informative, productive of social wealth, and more appropriate for judges than Tribe's constitutive approach).
134. See Duncan Kennedy & Frank Michelman, Are Property and Contract Efficient?, 8 HOFSTRA L. REV. 711 (1980); Frank I. Michelman, supra note 43, at 25.
135. Cf. KELMAN, supra note 99, at 159 (noting instances where forced sharing overcomes inefficiencies).
136. See Duncan Kennedy, Law-and-Economics from the Perspective of Critical Legal Studies, in 2 THE NEW PALGRAVE DICTIONARY OF LAW AND ECONOMICS 465, 471-73 (1998).
137. See, e.g., POSNER, supra note 74, § 3.1, at 30-31 n.1 (responding to Michelman). But see KELMAN, supra note 99, at 329 n.4 (criticizing Posner's response).
138. See Charles A. Reich, The New Property, 73 YALE L.J. 733, 785-86 (1964); see also STEPHEN R. MUNZER, A THEORY OF PROPERTY 241-47 (1990) (discussing the minimum entitlements necessary for "a decent human life in society").
139. See Charles A. Reich, The New Property, 73 YALE L.J. 733, 785-86 (1964); see also STEPHEN R. MUNZER, A THEORY OF PROPERTY 241-47 (1990) (discussing the minimum entitlements necessary for "a decent human life in society").
140. J.G.A. POCOCK, THE MACHIAVELLIAN MOMENT: FLORENTINE POLITICAL THOUGHT AND THE ATLANTIC REPUBLICAN TRADITION 506-52 (1975).
141. See Gregory S. Alexander, Takings and the Post-Modern Dialectic of Property, 9 CONST. COMMENTARY 259, 275 (1992); Frank I. Michelman, Possession vs. Distribution in the Constitutional Idea of Property, 72 IOWA L. REV. 1319, 1329-30 (1987).
142. See Gregory S. Alexander, Takings and the Post-Modern Dialectic of Property, 9 CONST. COMMENTARY 259, 275 (1992); Frank I. Michelman, Possession vs. Distribution in the Constitutional Idea of Property, 72 IOWA L. REV. 1319, 1329-30 (1987).
143. See Margaret Jane Radin, Property and Personhood, 34 STAN. L. REV. 957 (1982).
144. JOHN RAWLS, A THEORY OF JUSTICE 101 (1971).
145. See, e.g., KELMAN, supra note 99, at 142-44, 165 (arguing that efficiency concerns cannot justify property rules because supposedly efficient outcomes vary depending on the distribution of initial entitlements).
146. For an exploration of some of the conflicting demands, see Klaus Bosselmann, Plants and Politics: The International Legal Regime Concerning Biotechnology and Biodiversity, 7 COLO. J. INT'L ENVTL. L. & POL'Y 111 (1996).
147. See, e.g., KELMAN, supra note 99, at 260; see also Singer, supra note 5, at 1450-51 (concluding, after an extensive discussion of public accommodations law, that property incorporates "built-in distributive principles" reflecting wider social organization and changing social values).
148. See Alschuler, supra note 1, at 34.
149. See, e.g., EPSTEIN, supra note 58, at 334-36; NOZICK, supra note 57, at 155-64.
150. See, e.g., Thomas W. Merrill, Wealth and Property, 38 UCLA L. REV. 489, 495 (1990) (book review). Richard Epstein, wearing his utilitarian hat, makes this point as well. See EPSTEIN, supra note 58, at 336-37.
151. See, e.g., SINGER, supra note 46, at 23-24; Robert A. Williams, Jr., Encounters on the Frontiers of International Human Rights Law: Redefining the Terms of Indigenous Peoples' Survival in the World, 1990 DUKE L.J. 660, 687-89; see also Michael J. Perry, Taking Neither Rights-Talk nor the "Critique of Rights" Too Seriously, 62 TEX. L. REV. 1405, 1415 (1984) (arguing that the critique of "rights-talk" gives no better alternative to those in need).
152. See, e.g., SINGER, supra note 46, at 23-24; Robert A. Williams, Jr., Encounters on the Frontiers of International Human Rights Law: Redefining the Terms of Indigenous Peoples' Survival in the World, 1990 DUKE L.J. 660, 687-89; see also Michael J. Perry, Taking Neither Rights-Talk nor the "Critique of Rights" Too Seriously, 62 TEX. L. REV. 1405, 1415 (1984) (arguing that the critique of "rights-talk" gives no better alternative to those in need).
153. See Kimberlé Williams Crenshaw, Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law, 101 HARV. L. REV. 1331, 1364-65 (1988). For a review of the differences that emerged between critical race theorists and the Critical Legal Studies movement, see KIMBERLÉ WILLIAMS CRENSHAW ET AL., Introduction to CRITICAL RACE THEORY: THE KEY WRITINGS THAT FORMED THE MOVEMENT at xiii, xxii-xxvii (1995). Among the critics themselves, Duncan Kennedy has been interested in the ways that legal forms interplay with autonomy. Interestingly enough, Kennedy's most explicit discussion is in The Structure of Blackstone's Commentaries, in which he describes the "fundamental contradiction" in the belief that the protection of individual freedom entails legal coercion. Kennedy, supra note 14, at 211-13.
154. See Kimberlé Williams Crenshaw, Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law, 101 HARV. L. REV. 1331, 1364-65 (1988). For a review of the differences that emerged between critical race theorists and the Critical Legal Studies movement, see KIMBERLÉ WILLIAMS CRENSHAW ET AL., Introduction to CRITICAL RACE THEORY: THE KEY WRITINGS THAT FORMED THE MOVEMENT at xiii, xxii-xxvii (1995). Among the critics themselves, Duncan Kennedy has been interested in the ways that legal forms interplay with autonomy. Interestingly enough, Kennedy's most explicit discussion is in The Structure of Blackstone's Commentaries, in which he describes the "fundamental contradiction" in the belief that the protection of individual freedom entails legal coercion. Kennedy, supra note 14, at 211-13.
155. See Martha Minow, Interpreting Rights: An Essay for Robert Cover, 96 YALE L.J. 1860, 1866-67, 1892-93, 1907-08, 1910-11 (1987) (arguing that the language of rights can invite serious consideration of unconventional claims); Reva B. Siegel, Home as Work: The First Women's Rights Claims Concerning Wives' Household Labor, 1850-1880, 103 YALE L.J. 1073, 1111 (1994) (arguing that feminists' early property claims in marriage opened up at least a partial challenge to the then-current "gendered aspects of the market ideology").
156. See Martha Minow, Interpreting Rights: An Essay for Robert Cover, 96 YALE L.J. 1860, 1866-67, 1892-93, 1907-08, 1910-11 (1987) (arguing that the language of rights can invite serious consideration of unconventional claims); Reva B. Siegel, Home as Work: The First Women's Rights Claims Concerning Wives' Household Labor, 1850-1880, 103 YALE L.J. 1073, 1111 (1994) (arguing that feminists' early property claims in marriage opened up at least a partial challenge to the then-current "gendered aspects of the market ideology").
157. On the importance that working-class people place on property, see SALLY ENGLE MERRY, GETTING JUSTICE AND GETTING EVEN: LEGAL CONSCIOUSNESS AMONG WORKING-CLASS AMERICANS 44-47 (1990). See also Maria Newman, Housing Plan: From Projects into Co-ops, N.Y. TIMES, Sept. 27, 1992, at 33 (describing public housing tenants' "almost obsessive" wish to be included in conversions to privately owned units because owners can control their environment and exclude persons they do not want as neighbors).
158. On the importance that working-class people place on property, see SALLY ENGLE MERRY, GETTING JUSTICE AND GETTING EVEN: LEGAL CONSCIOUSNESS AMONG WORKING-CLASS AMERICANS 44-47 (1990). See also Maria Newman, Housing Plan: From Projects into Co-ops, N.Y. TIMES, Sept. 27, 1992, at 33 (describing public housing tenants' "almost obsessive" wish to be included in conversions to privately owned units because owners can control their environment and exclude persons they do not want as neighbors).
159. An especially interesting example of property's relation to personal efficacy is seen in ERVING GOFFMAN, ASYLUMS: ESSAYS ON THE SOCIAL SITUATION OF MENTAL PATIENTS AND OTHER INMATES 18-21 (1961), which describes inmates' tremendous efforts to reestablish property-like claims in personal spaces, personal effects, and "stashes" following institutional divestment of their property.
160. See Alschuler, supra note 1, at 49 n.266, 51 n.269 (criticizing critical scholars for failing to pay attention to their own wishes to maintain a zone of autonomy from the community).
161. See Carol M. Rose, Property as the Keystone Right?, 71 NOTRE DAME L. REV. 329, 348-49 (1996) (describing both the argument that property symbolizes other rights and critiques of that position).
162. See Ellickson, supra note 4, at 1322-26 (classifying land regimes according to the number who may enter and use the land and discussing the ramifications thereof); Laura S. Underkuffler, The Perfidy of Property, 70 TEX. L. REV. 293, 311 (1991) (book review) (arguing that the concept of property contains both individual and collective elements).
163. See Rose, supra note 129, at 363-64.