Democratic estates: Property law in a free and democratic society

Cornell Law Review

Volumn 94, Issue 4, 2009, Pages 1009-1062

  Singer, Joseph William ^a  

^a HARVARD LAW SCHOOL   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 58149401835     PISSN: 00108847     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (191)

1. 19 N.Y. 68, 74 (N.Y. 1859).
2. 51 N.E. 664, 674 (III. 1898).
3. 277 A.2d 369, 373 (N.J. 1971) (quoting N.J. GOVERNOR'S TASK FORCE ON MIGRANT FARM LABOR, THE REPORT OF THE GOVERNOR'S TASK FORCE ON MIGRANT FARM LABOR 63 (1968)).
4. See John McCain Outlines New Initiatives to Provide Immediate Help for American Families (Apr. 10, 2008), http://www.ohiogop.org/news/articles/ 2008/04/john-mccainoutlines-new-initiatives-provide-immediate-help-american- families (on file with author) [hereinafter McCain Outlines New Initiatives]; Sen. Barack Obama, Plan to Strengthen the Economy, http://www.barackobama.com/ issues/economy/#home-ownership (last visited Feb. 1, 2009).
5. See President George W. Bush, President's Address to the Nation on the Economic Crisis (Sept. 24, 2008), available at http://www.nytimes. com/2008/09/24/business/economy/24text-bush.html?-r=l&oref=slogin.
6. See id.
7. See id.
8. See id.
9. Richard E. Gottlieb & Andrew J. McGuinness, When Bad Things Happen to Good Cities: Are Lenders to Blame?, 17 Bus. L. TODAY, July-Aug. 2007, at 13.
10. See Nick Timiraos, Homeownership Push Is Rethought: Both Candidates Weigh the Best Path to American Dream, WALL ST. J., Sept. 12, 2008, at A4 (explaining that Senator McCain "has warned against lending to homeowners who don't have enough of their own capital in the investment" and discussing McCain's support of a bill making "it harder for lower- and middle-class consumers to file for bankruptcy").
11. See, e.g., id. (explaining Senator Obama's support of greater regulation and discussing Obama's advisors' aversion to " privatization" as the only plan to solve the housing crisis).
12. See generally THOMAS HOBBES, LEVIATHAN (G.A.J. Rogers & Karl Schuhmann eds., Oxford World Classics 1998) (1651);
13. JOHN LOCKE, TWO TREATISES OF GOVERNMENT (Peter Laslett ed., Cambridge Univ. Press 1988) (1690).
14. See generally JOHN RAWLS, A THEORY OF JUSTICE (rev. ed. 1999) (1971).
15. See Sen. Barack Obama, Remarks of Senator Barack Obama: Our Common Stake in America's Prosperity (Sept. 17, 2007) [hereinafter Our Common Stake], http://www.barackobama.com/2007/09/17/remarks-of-senator-barack-obam-24.php ("[P]art of my agenda will be to modernize and strengthen America's safety net for working Americans.").
16. David M. Herszenhom, Bush Advisers Oppose Housing Measure, and Vow a Veto, N.Y. TIMES, May 7, 2008, at C2;
17. see Press Release, Rep. Barney Frank, Frank Announces New Economic, Mortgage and Housing Rescue Proposal (Mar. 13, 2008), available at http:// www.house.gov/frank/fha0308.litml.
18. Jennifer Loven, Bush Signs Housing Bill to Provide Mortgage Relief, ASSOCIATED PRESS, July 30, 2001, LexisNexis Academic.
19. Press Release, Sen. John McCain, John McCain Addresses the Housing Crisis (Mar. 25, 2008), available at http://www.procon.org/sourcefiles/ McCain20080325.pdf.
20. Our Common Stake, supra note 14.
21. See sources cited supra note 4.
22. Liz Sidoti, McCain Leaves Housing Crisis Options on Table: GOP Presidential Nominee Places Limits on Government Assistance, ASSOCIATED PRESS, Mar. 26, 2008, LexisNexis Academic.
23. Our Common Stake, supra note 14.
24. Id.
25. Sidoti, supra note 20.
26. Id.
27. Casting McCain as Opponent of Fed Intervention in Mortgage Crisis, Blilzer Ignored His Approval of Bear Stearns Aid, MEDIA MATTERS, Mar. 26, 2008, http://mediamatters.org/ items/200803280005.
28. Id.
29. Domenico Montanaro, McCain: "We're Succeeding", MSNBC, Mar. 25, 2008, http:// firstread.msnbc.msn.com/archive/2008/03/25/803794.aspx.
30. For a contrary view, see KENT GREENFIELD, THE FAILURE OF CORPORATE LAW: FUNDAMENTAL FLAWS AND PROGRESSIVE POSSIBILITIES (2006);
31. Joseph William Singer, Corporate Responsibility in a Free and Democratic Society, 58 CASE W. RES. L. REV. (forthcoming 2009) (both arguing that corporations have responsibilities to the public and to stakeholders other than shareholders).
32. Sen. Barack Obama, Barack Obama's Policy on the Foreclosure Crisis [hereinafter Policy on the Foreclosure Crisis], http://www.barackobama.com/ issues/economy/#homeownership (last visited Feb. 1, 2009);
33. see also Sen. Barack Obama, Protecting Homeownership and Cracking Down on Mortgage Fraud, http://www.barackobama.com/issues/economy/ (last visited Feb 1. 2009); Our Common Stake, supra note 14.
34. Elizabeth Warren, Making Credit Safer: The Case for Regulation, HARVARD MAG., May-June 2008, at 34 [hereinafter Warren, Making Credit Safer] ;
35. Elizabeth Warren, Unsafe at Any Rate: If It's Good Enough for Microwaves, It's Good Enough for Mortgages. Why We Need a Financial Product Safely Commission, DEMOCRACY J., Summer 2007, available at http://democracyjournal.org/article.php?ID=6528.
36. Sen. Barack Obama, Protecting Homeownership and Cracking Down on Mortgage Fraud in Iowa, http://obama.3cdn.net/54d4a826cbee880b5e-4gulmv19d.pdf (last visited Feb. 1, 2009).
37. Compare Sen. Hillary Clinton, Remarks on Wall Street on Housing Crisis (Dec. 5, 2007), available at http://www.presidency.ucsb.edu/ws/ index.php?pid-77081, with Policy on the Foreclosure Crisis, supra note 29.
38. Loven, supra note 16; Provisions of Housing-Mortgage Relief Bill, ASSOCIATED PRESS, July 30, 2008, LexisNexis Academic.
39. Our Common Stake, supra note 14.
40. McCain Outlines New Initiatives, supra note 4. S6 Id.
41. Id.
42. Id.
43. Id.
44. Joseph William Singer, Things That We Would Like to Take for Granted: Minimum Standards for the Legal Framework of a Free and Democratic Society, 2 HARV. L. & POL'Y REV. 139, 140 (2008) ("This means that liberty is not possible without regulation; paradoxically, the liberty we experience in the private sphere is only possible because of the regulation we impose in the public sphere.").
45. Of course, the tax deduction given for interest payments on mortgages may change the economic calculation dramatically; at the same time, foreclosure may ruin the borrower's credit rating in a manner that makes her worse off in the long run.
46. Singer, supra note 40, at 159 (noting that such egalitarian-minded questions highlight how regulations not only set rules but also set standards of conduct requiring each person to be treated with concern and respect).
47. U.S. CONST, amend. V.
48. Professors Henry Smith and Thomas Merrill have usefully explored the implications of this fact about property rights. See, e.g., Thomas W. Merrill & Henry E. Smith, Optimal Standardization in the Law of Properly: The Numerus Clausus Principle, 110 YALE L.J. 1, 54-55 (2000) [hereinafter Merrill & Smith, Optimal Standardization] (noting that it is impractical to bundle in personam rights to create an in rem right and that therefore transaction costs will prevent assignable contracts from replacing property rights);
49. Thomas W. Merrill & Henry E. Smith, The Property/Contract Interface, 101 COLUM. L. REV. 773 passim (2001) [hereinafter Merrill & Smith, Property/Contract Interface] (considering why the legal system maintains the distinction between in rem and in personam rights through an analysis of four legal institutions: bailments, landlord/ tenant law, security interests, and trusts);
50. Thomas W. Merrill & Henry E. Smith, What Happened to Property in Law and Economics?, 111 YALE L.J. 357, 385-98 (2001) [hereinafter Merrill & Smith, What Happened?] (discussing the costs of adopting an economic analysis of property that ignores the in rem nature of property rights).
51. See, e.g., Johnson v. M'Intosh, 21 U.S. (8 Wheat.) 543 (1823); Pierson v. Post, 3 Cai. 175 (N.Y. Sup. Ct. 1805); Hannah v. Peel, (1945) 1 KB. 509.
52. I have criticized this litany elsewhere. See Joseph William Singer, Starting Property, 46 ST. LOUIS U. L.J. 565, 571-72 (2002) [hereinafter Singer, Starting Property];
53. see also Joseph William Singer, Original Acquisition of Property: From Conquest and Possession to Equal Opportunity (2008) (unpublished manuscript, on file with author).
54. Even the conquest story reflects the norm of first possession. It does so either by emphasizing that the land in the United States was obtained from the Indian nations through treaties or peace agreements following wars, or by acknowledging the injustice of forced seizure of Indian lands but relegating such questions to the distant past and thus allaying these concerns. See Singer, Starting Property, supra note 46, at 568-69.
55. Even adverse possession trades on the image of first possession since it invariably describes a case in which the true (or record) owner acquiesces in the encroachment by effectively abandoning exclusionary claims. See id. at 568.
56. See BRIAN BARRY, WHY SOCIAL JUSTICE MATTERS 44 (2005) (noting that a just system would have to provide people more than one chance, such that losing out at the beginning does not permanendy close doors).
57. See Susan F. French, Highlights of the New Restatement (Third) of Properly: Servitudes, 35 REAL PROP. PROB. & TR. J. 225, 228, 229 (2000) (arguing that the major goals of the Third Restatement were to avoid "confusion and unnecessary complexity in the law" as well as to get rid of "obsolete doctrines" like privity of estate and the touch and concern test).
58. See generally sources cited supra note 44.
59. See Thomas W. Merrill & Henry E. Smith, The Morality of Property, 48 WM. & MARY L. REV. 1849, 1857 (2007).
60. Freedom of disposition refers to grants through gifts or wills that do not involve a contract between individuals but radier are voluntary transfers from one to another. Gifts can be rejected, of course, and thus have a flavor of mutuality, but they are not the subject of a prior mutual agreement.
61. See Merrill & Smith, Optimal Standardization, supra note 44, at 3-10.
62. See id.
63. Id. at 8.
64. See Glen O. Robinson, Personal Property Servitudes, 71 U. CHI. L. REV. 1449, 1483-84 (2004) (making this argument).
65. See Merrill & Smith, Optimal Standardization, supra note 44, at 24-42.
66. See, e.g., Merrill & Smith, supra note 52, at 1850.
67. See, e.g., Javins v. First Nat'l Realty Corp., 428 F.2d 1071, 1074 (D.C. Cir. 1970).
68. See, e.g., Brown v. Gobble, 474 S.E.2d 489, 496 (W. Va. 1996).
69. See, e.g., Finn v. Williams, 33 N.E.2d 226, 228 (111. 1941).
70. See, e.g., Appel v. Presley Cos., 806 P.2d 1054, 1056 (N.M. 1991).
71. See, e.g, Rase v. Castle Mountain Ranch, Inc., 631 P.2d 680, 685-86 (Mont. 1981).
72. See LAURA S. UNDERKUFFLER, THE IDEA OF PROPERTY: ITS MEANING AND POWER 51 (2003).
73. See id.
74. See generally id.
75. Joseph William Singer, The Ownership Society and Takings of Property: Castles, Investments, and Just Obligations, 30 HARV. ENVTL. L. REV. 309, 314-16 (2006) (discussing the castle model of property and arguing that the citizenship model provides a better framework from which to analyze the Takings Clause).
76. See, e.g., CAL. CIV. CODE § 51-51.3 (West 2007).
77. See generally UNDERKUFFLER, supra note 65, at 37-51.
78. See Joseph William Singer, How Property Norms Construct the Externalities of Ownership 4-5 (Harvard Law Sch., Harvard Pub. Law Working Paper No. 08-06, 2008), available at http://www.ssrn.com/abstract=1093341 (discussing a methodology for identifying externalities and the forms that externalities may take).
79. See, e.g., Nw. Real Estate Co. v. Serio, 144 A. 245, 246 (Md. 1929) (describing a restraint on alienation as "clearly repugnant to the fee-simple title").
80. DUNCAN KENNEDY, THE RISE AND FALL OF CLASSICAL LEGAL THOUGHT 115-45 (paperback ed. 2006).
81. See GREGORY S. ALEXANDER, COMMODITY & PROPRIETY: COMPETING VISIONS OF PROPERTY IN AMERICAN LEGAL THOUGHT, 1776-1970, at 21 (1997) (noting the early American efforts at "dismantling of 'aristocracy' and getting rid of all vestiges of feudalism");
82. AWRENCE M. FRIEDMAN, A HISTORY OF AMERICAN LAW 230-55, 232, 239 (2d ed. 1985) (explaining the new "ideal of a country of free citizens, small-holders living on their own bits of land" and the rejection of the "tyrannical" and "feudal" past).
83. See ALEXANDER, supra note 74, at 285-89 (discussing Gray, his scholarship on restraints on alienation, and his belief that most property law was based on a few core principles and policies).
84. Wesley Newcomb Hohfeld, Fundamental Legal Conceptions as Applied Judicial Reasoning, 26 YALE L.J. 710, 718-24 (1917);
85. Wesley Newcomb Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, 23 YALE L.J. 16, 30-36 (1913) [hereinafter Hohfeld, Some Fundamental legal Conceptions];
86. see also Joseph William Singer, The Legal Rights Debate in Analytical Jurisprudence from Bentham to Hohfeld, 1982 Wis. L. REV. 975, 986-89 (1983).
87. Thomas C. Grey, The Disintegration of Property, in PROPERTY: NOMOS XXII, at 69, 69-85 (J. Roland Pennock & John W. Chapman eds., 1980).
88. GRANT GILMORE, THE DEATH OF CONTRACT (1995).
89. As an example of the backlash, see Alan Schwartz, Justice and the Law of Contracts: A Case for the Traditional Appoach, 9 HARV. J.L. & PUB. POL'Y 107 (1986).
90. See Merrill & Smith, Optimal Standardization, supra note 44, passim.
91. Henry Hansmann & Reinier Kraakman, Property, Contract, and Verification: The Numerus Clausus Problem and the Divisibility of Rights, 31 J. LEGAL STUD. S373, S405-07 (2002).
92. See generally RICHARD A. EPSTEIN, TAKINGS: PRIVATE PROPERTY AND THE POWER OF EMINENT DOMAIN (1985);
93. Eric R. Claeys, Takings, Regulations, and Natural Property Rights, 88 CORNELL L. REV. 1549, 1669-71 (2003) [hereinafter Claeys, Takings, Regulations];
94. Eric R. Claeys, Jefferson Meets Coase: Land-Use Torts, Law and Economics, and Natural Property Rights 20-25 (George Mason Univ. School of Law, George Mason Law & Econ. Research Paper No. 08-20, 2008) [hereinafter Claeys, Jefferson Meets Coase], available at http://ssrn.com/ abstract-id=1117999. Neither Professor Epstein nor Professor Claeys identifies himself as a libertarian; each has complicated and sophisticated theories of the boundaries of property rights, and each combines a number of norms in defining those rights. Epstein combines deontological arguments with consequentialist ones, and Claeys develops a modern form of natural law analysis. Nevertheless, both Epstein and Claeys privilege the value of free use and disposition of land and narrowly constrain the legitimate sphere of regulations designed to promote other goals, such as redistribution of wealth to avoid undue inequality or zoning laws designed to promote particular neighborhood character.
95. UNDERKUFFLER, supra note 65, at 64-74.
96. Singer, supra note 68, at 316-22.
97. ALEXANDER, supra note 74, at 1 (arguing that property as commodity is only "onehalf of a dialect" and that "property is the material foundation for creating and maintaining the proper social order, the private basis for public good").
98. See Merrill & Smith, Optimal Standardization, supra note 44, at 3-10.
99. Michael A. Heller, The Tragedy of the Anticommons: Property in the Transition from Marx to Markets, 111 HARV. L. REV. 621, 624 (1998) ("When there are too many owners holding rights of exclusion, the resource is prone to underuse.").
100. See Frank I. Michelman, Ethics, Economics, and the Law of Property, 39 TULSA L. REV. 663, 668 (2004) ("[W]e can safely conclude that the [private property] form must require some restriction on decomposition of full ownership into privileges held without their congruent rights, or rights without their congruent privileges." (emphasis in original)).
101. See ALEXANDER, supra note 74, at 1-15.
102. See id.
103. See id.
104. Gregory S. Alexander, The Social-Obligation Norm in American Property Law, 94 CORNELL L. REV. 745, 760-73 (2009).
105. See id.
106. See id.
107. See id.
108. See Eduardo M. Pen̄alver, Land Virtues, 94 CORNELL L. REV. 821, 832-60 (2009).
109. See id.
110. See id. at 842-44.
111. See id. at 850-53.
112. See, e.g., JOSEPH WILLIAM SINGER, ENTITLEMENT: THE PARADOXES OF PROPERTY (2000);
113. Joseph William Singer, Normative Methods for Lawyers, 56 UCLA L. REV. (forthcoming 2009) (manuscript at 15-22, on file with author).
114. For critiques of this view, see Daphna Lewinsohn-Zamir, In Defense of Redistribution Through Private Law, 91 MINN. L. REV. 326, 330-31 (2006); Singer, supra note 100 (manuscript at 17); Joseph William Singer, Something Important in Humanity, 37 HARV. C.R.-C.L. L. REV. 103, 113-19 (2002).
115. WILL KYMLICKA, CONTEMPORARY POLITICAL PHILOSOPHY: AN INTRODUCTION (2d ed. 2002).
116. See generally Joseph William Singer, Critical Normativily, LAW & CRITIQUE (forthcoming 2009), available at http.7/www.springerlink.com/content/kkx784526925u220/?p=051f 026194bb46af92a3610c5e2e9531&pi=4 (discussing the weaknesses of efficiency analysis).
117. See generally Pen̄alver, supra note 96 (proposing a virtue ethics system of property).
118. See Alexander, supra note 92, at 748 ("[T] he version of the social-obligation norm that I develop here is morally superior to other candidates .... because it best promotes human flourishing ....").
119. See generally Jedediah Purdy, A Freedom-Promoting Approach to Property: A Renewed Tradition for New Debates, 72 U. CHI. L. REV. 1237 (2005) (proposing a property system that embraces individual freedom).
120. Kelo v. City of New London, 545 U.S. 469 (2005).
121. See Or. Ballot Measure 37 (codified at OR. REV. STAT. §195.305 (West 2009) ), available at http://www.sos.state.or.us/elections/nov22004/guide/meas/m37-text.html, superseded by Or. Ballot Measure 49 (codified in scattered sections of OR. REV. STAT.), available at http://www.oregonvotes.org/nov62007/guide/m49-text.html.
122. See Private Property Rights Protection Act (codified at ARIZ. REV. STAT. ANN. §§121131 to-38 (2009)).
123. See generally RANDY E. BARNETT, RESTORING THE LOST CONSTITUTION: THE PRESUMPTION OF LIBERTY (2004); RANDY E. BARNETT, THE STRUCTURE OF LIBERTY: JUSTICE AND THE RULE OF LAW (2000); RICHARD A. EPSTEIN, SIMPLE RULES FOR A COMPLEX WORLD (1995); EPSTEIN, supra note 82.
124. See EPSTEIN, supra note 82, at 60 ("The idea of ownership entails that whatever uses are permitted must fall within the exclusive province of the owner."). For such arguments by a natural law theorist, see Claeys, Takings, Regulations, supra note 82, at 1567-68 ("[E]very person 'has a right to exert those powers ... in such a manner, and upon such objects, as his inclination and judgment shall direct; provided he does no injury to others.' " (quoting JAMES WILSON, Lectures on Law, in 1 THE WORKS OF JAMES WILSON 69, 241-42 (Robert Green McCloskey ed., 1967))); Claeys, Jefferson Meets Coase, supra note 82, at 23-24 ("Property . . . consists not so much of specific entitlements as a general domain of practical discretion in relation to an external asset. That discretion protects in the owner free choice how actively to use and enjoy the asset in relation to his own individual needs.").
125. Richard A. Epstein, Notice and Freedom of Contract in the Law of Servitudes, 55 S. CAL. L. REV. 1353, 1354 (1982) ("[T]he only need for public regulation, either judicial or legislative, is to provide notice by recordation of the interests privately created.").
126. See Eric Olson, Supreme Court Justice's In-Laws Told to Remove Flag; "I'm Not About to, " He Says, ASSOCIATED PRESS, May 28, 2004, LexisNexis Academic; see also Tony Mauro, An Unwelcome Mat for Free Speech, USA TODAY, Aug. 18, 2004, at 13A; Eric Olson, Father-in-Law of High Court Justice Defies Rule, Flies Flag, ST. LOUIS POST-DISPATCH, May 29, 2004, at 6, LexisNexis Academic.
127. See Freedom to Display the American Flag Act of 2005, Pub. L. 109-243, 120 Stat. 572, 572 (2006) (codified as amended at 4 U.S.C. §5 (2006)). 215 The operative portion of the statute states:
128. A condominium association, cooperative association, or residential real estate management association may not adopt or enforce any policy, or enter into any agreement, that would restrict or prevent a member of the association from displaying the flag of the United States on residential property within the association with respect to which such member has a separate ownership interest or a right to exclusive possession or use.
129. Id. §3.
130. See Purdy, supra note 106, at 1259.
131. UNDERKUFFLER, supra note 65, at 125-27; Laura S. Underkuffler-Freund, Property: A Special Right, 71 NOTRE DAME L. REV. 1033, 1039 (1996) ("The protection of property ... is quite different [than the protection of free speech].... The extension of property protection to one person necessarily and inevitably denies the same right to others." (emphasis in original)).
132. See JOSEPH WILLIAM SINGER, THE EDGES OF THE FIELD: LESSONS ON THE OBLIGATIONS OF OWNERSHIP 38-62 (2000).
133. 2 LOCKE, supra note 12, at 288.
134. See Frank I. Michelman, The Supreme Court, 1968 Term-Foreword: On Protecting the Poor Through the Fourteenth Amendment, 83 HARV. L REV. 7, 13-16 (1969) (discussing his theory of "minimum protection against economic hazard" that includes the idea that "persons are entitled to have certain wants satisfied ... by government").
135. See JEREMY WALDRON, THE RIGHT TO PRIVATE PROPERTY 287 (1988) (setting out a general right-based theory of property).
136. See Frank I. Michelman, Possession vs. Distribution in the Constitutional Idea of Property, 72 IOWA L. REV. 1319, 1329 (1987) (discussing the importance of property as a vehicle for individual political and social power).
137. See Underkuffler-Freund, supra note 117, at 1040 ("Any scheme for the supermajoritarian protection of the appropriations by some persons means, correspondingly, the denial of the appropriation of the same goods, resources, and essentials of life by others.").
138. SINGER, supra note 100, at 140-78.
139. See Lewinsohn-Zamir, supra note 101, at 331 ("[T]he benefit people derive from resources depends on complex factors, including the acts that generate the resources and die source from which they are received.").
140. See jedediah Purdy, People as Resources: Recruitment and Reciprocity in the Freedom-Promoting Approach to Property, 56 DUKE L.J. 1047, 1094-98 (2007).
141. See Aviam Soifer, Status, Contract, and Promises Unkept, 96 YALE L.J. 1916, 1929 (1987).
142. See Singer, supra note 100 (manuscript at 65, 71) (applying the Golden Rule to normative questions).
143. For example, in his reformation of his position in Justice as Fairness, Rawls emphasizes that the right to have personal property is necessary "for personal independence and a sense of self-respect." JOHN RAWLS, JUSTICE AS FAIRNESS: A RESTATEMENT 114 (Erin Kelly ed., 2001). However, he does not analyze the role that property plays in structuring social relationships and thus emphasizes an individual conception of liberty rather than the idea of a citizen of a free and democratic society in which property is related, not only to individual powers, but to just social relations. Id For discussion of a conception of freedom that recognizes the structural role that property plays in a free and democratic society, see generally Purdy, supra note 126.
144. 28 U.S.C. §1738C (2006).
145. See generally Joseph William Singer, Same Sex Marriage, Full Faith and Credit, and the Evasion of Obligation, 1 STAN. J. C.R. & C.L. 1 (2005).
146. MARGARET JANE RADIN, REINTERPRETING PROPERTY 35-71 (1993).
147. See id.
148. MARGARET JANE RADIN, CONTESTED COMMODITIES: THE TROUBLE WITH TRADE IN SEX, CHILDREN, BODY PARTS, AND OTHER THINGS 1-15 (paperback ed. 2001) (discussing the limits of market rhetoric).
149. Id. at 79-101.
150. See Alexander, supra note 92, at 748 (proposing a social-obligation norm system of property because such a system is most likely to promote human flourishing).
151. MARTHA C. NUSSBAUM, FRONTIERS OF JUSTICE: DISABILITY, NATIONALITY, SPECIES MEMBERSHIP 155 (2006); AMARTYA SEN, DEVELOPMENT AS FREEDOM (1999); AMARTYA SEN, RATIONALITY AND FREEDOM 206-20 (2002); Amartya Sen, Capability and Weil-Being, in THE QUALITY OF LIFE 30 (Martha Nussbaum & Amartya Sen eds., 1993) (explaining the capability approach as a comprehensive approach to social advantage).
152. See generally Pen̄alver, supra note 96.
153. See generally SINGER, supra note 100, at 6 ("The recognition and exercise of property rights affects the interests of others, including other owners and nonowners.").
154. Hohfeld, Some Fundamental Legal Conceptions, supra note 76, at 28-32.
155. See id.
156. See generally ALEXANDER, supra note 74, at 2 (discussing the "political-legal principle in proprietarian thought that when individuals fail to meet their precontractual social obligations, the state may legitimately compel them to act for the good of the entire community"); SINGER, supra note 100, at 16 ("[O]wners have obligations as well as rights." (emphasis omitted)).
157. See Singer, supra note 71, at 3.
158. Singer, supra note 28 (manuscript at 8) ("All the basic areas of law governing the market system, including tort, contract, and property law, rest on the idea that we are obligated to attend to the effects our actions have on others.").
159. See id. (manuscript at 8) ("The law of property is not indifferent to the effects of exercising property rights nor on the structure of those rights themselves.").
160. See Pen̄alver, supra note 96, at 831-32 ("Land's memory, and the attachments on which it depends, also shed light on the ambiguous status of gentrification, helping to explain why communities frequently (and sometimes almost reflexively) resist change, even when they stand to gain financially from the process." (footnote omitted)).
161. See Singer, supra note 71, at 2.
162. See generally ALEXANDER, supra note 74, at 311-51; SINGER, supra note 100, at 95-139.
163. JEDEDIAH PURDY, ASPECTS OF MASTERY. PROPERTY, FREEDOM, AND THE LEGAL IMAGINATION (forthcoming 2009) (manuscript at xii, on file with author).
164. See Jeremy Waldron, Homelessness and the Issue of Freedom, 39 UCLA L. REV. 295, 300-01 (1991).
165. Merrill & Smith, Optimal Standardization, supra note 44, at 12-14.
166. See id. at 14 (noting that courts may choose an appropriate characterization of an estate based on what "is most consistent with the testator's intentions or is otherwise 'best' in terms of policy concerns such as promoting the free alienability of property").
167. See, e.g., CAL. CIV. CODE §§51-51.3 (West 2007).
168. Merrill & Smith, Optimal Standardization, supra note 44, at 4.
169. See Singer, supra note 40, at 141-42 ("[W]e should recognize that all contracts are subject to regulations that set minimum standards for economic and social relationships.").
170. Pub. L. No. 110-289, 122 Stat. 2654 (2008).
171. Singer, supra note 100 (manuscript at 6) ("We lawyers have borrowed liberally from economic theory; it is time to extend our reach to political and moral theory in an equally sustained way.").
172. I have explained this in depth in Singer, supra note 100 (manuscript at 15-22). 159 See generally CHRISTINE M. KORSGAARD ET AL., THE SOURCES OF NORMATIVITY (1996); T.M. SCANLON, WHAT WE OWE TO EACH OTHER 147-68 (1998).
173. See generally ELIZABETH ANDERSON, VALUE IN ETHICS AND ECONOMICS (1993); PURDY, supra note 149; Alexander, supra note 92; Pen̄alver, supra note 96; Singer, supra note 100.
174. PURDY, supra note 149; Pen̄alver, supra note 96.
175. See, e.g., Singer, supra note 100.
176. See RADIN, supra note 132, at 35-71.
177. See id.
178. See supra 1047-55.
179. See City of Ladue v. Gilleo, 512 U.S. 43, 58-59 (1994) (holding that Ladue's ban on almost all residential signs violates the First Amendment).
180. See id.
181. See Comm. for a Better Twin Rivers v. Twin Rivers Homeowners' Ass'n, 890 A.2d 947 (N.J. Super. Ct. App. Div. 2006) (questioning whether the authority of a community association is limited by the expressive rights guarantee in the New Jersey Constitution), rev'd, 929 A.2d 1060 (N.J. 2007).
182. I have described the variety of such normative methods in Singer, supra note 100.
183. See supra Part IV.A.3.
184. See Berg v. Wiley, 264 N.W.2d 145 (Minn. 1978) (holding that self-help eviction was unlawful).
185. See Warren, Making Credit Safer, supra note 30, at 35-36.
186. Our Common Stake, supra note 14.
187. Id.
188. Id.
189. Id.
190. See generally sources cited supra note 12.
191. See Singer, supra note 40, at 141 ("Our regulations . . . shape the house that we live in, and the liberty that we value comes from having built that house and the environment around it. . . . [T] he character of those background regulations matters enormously; they determine the shape of our social world and the character of our economic relationships.").