Property and relative status

Michigan Law Review

Volumn 107, Issue 5, 2009, Pages 757-817

  Davidson, Nestor M ^a  

^a UNIVERSITY OF COLORADO   (United States)

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EID: 62649090146     PISSN: 00262234     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (399)

1. JEAN-JACQUES ROUSSEAU, ON THE ORIGIN OF INEQUALITY 73-74 (G.D.H. Cole trans., Cosimo Classics 2005) (1755).
2. Status is a notoriously expansive term, so it bears a moment to clarify at the outset how this Article employs it. Status in ordinary usage can simply, and neutrally, mean state or condition. Henry Maine, by contrast, famously associated status with the concept of a rigid place in society and the legal order, from which Western society has supposedly experienced progressive movement to "free agreement" as the basis for social relations. HENRY SUMNER MAINE, ANCIENT LAW: ITS CONNECTION WITH THE EARLY HISTORY OF SOCIETY AND ITS RELATION TO MODERN IDEAS 163-65 (photo, reprint 2007) (Frederick Pollock, ed., 10th ed., Henry Holt & Co. 1906). This Article, however, deploys status in a third sense - status as relative rank or position. For convenience, then, the Article will generally use status" as a shorthand for this idea of comparative status.
3. See infra Part I.
4. See Carol M. Rose, Introduction: Property and Language, or, the Ghost of the Fifth Panel, 18 YALE J.L. & HUMAN. 1, 3-11 (2006) (discussing property as an expressive endeavor).
5. Property, of course, communicates many messages that are not related to status or hierarchy. See MARY DOUGLAS & BARON ISHERWOOD, THE WORLD OF GOODS 4, 9 (1979) (discussing the wide array of gestalt meanings that possessions can communicate, including finality, respectability, and privacy). For further discussion of the varied meanings associated with, property
6. see infra Section U.C.
7. Property must be understood here both in the sense of material and intangible goods -the objects of property law - as well as property law itself. C.B. Macpherson, The Meaning of Property, in PROPERTY: MAINSTREAM AND CRITICAL POSITIONS 1, 2 (CB. Macpherson ed., 1978) ("In current common usage, property is things; in law and in the writers, property is not things but rights, rights in or to things.")
8. see also id. at 6-9. While it is the objects of property law that most often reinforce status, in a variety of ways property law itself drives status-related dynamics.
9. See infra Part IV. Indeed, even where status signaling is primarily a question of material culture - the resource rather than the rules governing that resource - property law directly affects how that material culture is formed and relevant resources allocated.
10. See MIHALY CSIKSZENTMIHALYI & EUGENE ROCHBERG-HALTON, THE MEANING OF THINGS: DOMESTIC SYMBOLS AND THE SELF 30 (1981) ("[S]tatus - or the ability to control meaning in one's community - has become, to a certain extent, independent of other sources of control and has taken on a life of its own. Wealth, political power, talent or physical prowess are still the stuff from which status is made, but one can maintain or even gain status by manipulating its symbols for one's own purposes. This is where the importance of things as status symbols lies."). In contemporary culture, status plays out across a variety of dimensions, although property remains an important definitional force.
11. See infra text accompanying notes 145-49.
12. See infra Section II.A.
13. See infra Section II.B.
14. The drive to make interpersonal comparisons and the tendency to do so through property are by no means universal or inherent in the sense that these aspects of personality and social interaction manifest themselves similarly (or even at all) in all individuals and all cultures. Moreover, there are important gender, age, life-cycle and other variations to these dynamics, as will be explored below. See infra Section II.C.
15. Deuteronomy 5:21 (New Revised Standard Version) ("Neither shall you desire your neighbor's house, or field, or male or female slave, or ox, or donkey, or anything that belongs to your neighbor.").
16. See infra Section III.A.
17. Richard H. McAdams, Relative Preferences, 102 YALE L.J. 1 (1992).
18. See infra Section III.B.
19. See infra Section III.C.
20. See Kenneth R. Minogue, The Concept of Property and Its Contemporary Significance, in NOMOS XXII: PROPERTY 3, 8 (J. Roland Pennock & John W. Chapman eds., 1980) ("The simple idea that it needs only a change in some external thing (such as the structure of property rights) to transform the human condition is superstition lurking behind many treatments of the subject.").
21. THORSTEIN VEBLEN, THE THEORY OF THE LEISURE CLASS (Martha Banta ed., Oxford Univ. Press 2007) (1899).
22. JULIET B. SCHOR, THE OVERSPENT AMERICAN: UPSCALING, DOWNSHIFTING, AND THE NEW CONSUMER 7-19 (1998).
23. For a sample of the slew of recent popular accounts of current anxieties around status, see, for example, ALAIN DE BOTTON, STATUS ANXIETY 3-4 (2004), which describes status anxiety as "[a] worry so pernicious as to be capable of ruining extended stretches of our lives, that we are in danger of failing to conform to the ideals of success laid down by our society and that we may as a result be stripped of dignity and respect; a worry that we are currently occupying too modest a rung or are about to fall to a lower one,"
24. and NAN MOONEY, (NOT) KEEPING UP WITH OUR PARENTS: THE DECLINE OF THE PROFESSIONAL MIDDLE CLASS (2008).
25. This is not to say that legal scholars have entirely ignored the dynamics that inform status signaling through property. See, e.g., McAdams, supra note 13 (discussing other-regarding preferences in a variety of contexts, primarily to complicate law and economics understandings of demand)
26. Anita Bernstein, How Can a Product Be Liable?, 45 DUKE L.J. 1, 27-31 (1995) (discussing the communicative meaning of objects in the context of refraining product-liability law). And some property scholars have noted aspects of this phenomenon in particular contexts.
27. See, e.g., Lee Anne Fennell, Homeownership2.0, 102 Nw. U. L. REV. 1047, 1111-13 (2008) (exploring comparative-status considerations in home-ownership decisions). Moreover, in a tangential but not entirely unrelated vein, Henry Smith and Thomas Merrill have done significant work on information costs and property law.
28. See, e.g., Thomas W. Merrill & Henry E. Smith, Optimal Standardization in the Law of Property: The Numerus Clausus Principle, 110 YALE L.J. 1 (2000)
29. Henry E. Smith, The Language of Property: Form, Context, and Audience, 55 STAN. L. REV. 1105 (2003). Merrill and Smith's scholarship brings to the fore important aspects of how individuals transact around property rights-and the legal system's reaction to the challenges posed by uncertainty. This Article, by contrast, focuses on a broader and more culturally embedded sense in which the objects of property law and property law itself communicate, particularly about status.
30. The discourses summarized in this Part represent something of a "mainstream" view of property theory, and it is important to acknowledge that there have long been critical perspectives that have directly and forcefully questioned the validity of each of these discourses. See, e.g., Macpherson, supra note 6, at 11-13. As discussed below, this Article's examination of the role of property in status signaling seeks to complicate and deepen our understanding of the underpinnings of these discourses but does not argue against the institution of property as such.
31. See infra Part III and note 277.
32. Each of these discourses carries with it explicit or implicit assumptions about human nature and motivation, the texture of social interaction, and, of course, the moral foundations of rights associated with property. This Part briefly notes some of those assumptions, but reserves direct engagement with those questions until Part III.
33. A fourth foundational discourse centers on the complex relationship between property and political liberty. See generally RICHARD SCHLATTER, PRIVATE PROPERTY: THE HISTORY OF AN IDEA (Russell & Russell 1973) (1951). This discourse posits property as, alternatively, a creation of, or a bulwark against, the state. Given this Part's functionalist approach, it is appropriate to defer this strand of thought as an independent concern until the Article's discussion of the state's role in responding to status signaling in Part IV.
34. This vision of property has its roots in utilitarianism, although strictly utilitarian arguments could likewise be deployed to undermine any particular arrangement of property rights. ALAN RYAN, PROPERTY AND POLITICAL THEORY 92-95 (1984). This discourse generally finds expression today in economics and in economically oriented legal scholarship.
35. RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW § 3.1 (7th ed. 2007) (arguing that even where consumer demand exceeds the costs of production, "without property rights there is no incentive to incur these costs because there is no reasonably assured reward for incurring them")
36. see also Dean Lueck & Thomas J. Miceli, Property Law, in 1 HANDBOOK OF LAW AND ECONOMICS 183, 186 (A. Mitchell Polinsky & Steven Shavell eds., 2007) (defining property rights as a "social institution that creates incentives to efficiently use assets, and to maintain and invest in assets").
37. As Thomas Merrill and Henry Smith have noted, William Blackstone emphasized the link between security of property and incentives but was preceded in doing so by writers such as Thomas Hobbes and David Hume. Thomas W. Merrill & Henry E. Smith, What Happened to Property in Law and Economics?, 111 YALE L.J. 357, 361-62 & n.13 (2001)
38. see also Harold Demsetz, Toward a Theory of Property Rights, 57 AM. ECON. REV. 347, 347 (1967) ("Property rights are an instrument of society and derive their significance from the fact that they help a man form those expectations which he can reasonably hold in his dealings with others.").
39. JEREMY BENTHAM, THE THEORY OF LEGISLATION 111-12 (C.K. Ogden ed., Richard Hildreth trans., Harcourt, Brace & Co. 1931) (1802) ("Property is nothing but a basis of expectation; the expectation, of deriving certain advantages from a thing which we are said to possess, in consequence of the relation in which we stand towards it.").
40. Abraham Bell & Gideon Parchomovsky, A Theory of Property, 90 CORNELL L. REV. 531 (2005).
41. See Demsetz, supra note 26, at 349.
42. E.g., James E. Krier, The Tragedy of the Commons, Part Two, 15 HARV. J.L. & PUB. POL'Y 325, 336 (1992)
43. Katrina Miriam Wyman, From Fur to Fish: Reconsidering the Evolution of Private Property, 80 N.Y.U. L. REV. 117, 121 (2005).
44. Another prominent allocation problem associated with property rights - a "reciprocal" tragedy to that of the commons on which Demsetz focused - is the problem of fragmentation. Michael Heller has built a general theory of the anticommons, through which legal rules operate to scale ownership to avoid the problem of underutilization of resources. MICHAEL HELLER, THE GRIDLOCK ECONOMY (2008)
45. see also Frank I. Michelman, Ethics, Economics, and the Law of Property, in NOMOS XXIV: ETHICS, ECONOMICS, AND THE LAW 3, 6, 9 (J. Roland Pennock & John W. Chapman eds., 1982) (positing the anticommons as a thought experiment).
46. This strong property rights baseline is often associated with Blackstone's famous description, of property as sole and despotic dominion in total exclusion of the rights of others, but Blackstone himself was hardly Blackstonian about property. David B. Schorr, How Blackstone Became a Blackstonian, 10 THEORETICAL INQUIRIES IN L. 103 (2009)
47. see also Carol M. Rose, Canons of Property Talk, or, Blackstone's Anxiety, 108 YALE L.J. 601 (1998).
48. See R.H. Coase, The Problem of Social Cost, 3 J.L. & ECON. 1 (1960).
49. This might be because uncertainty about legal rules is a transaction cost or because there are information-cost barriers to understanding a relatively certain set of legal rules. Accordingly, the argument goes, efficiency prescribes simplicity and clarity in property rights. ROBERT COOTER & THOMAS ULEN, LAW AND ECONOMICS 93 (5th ed. 2008).
50. Id. at 97.
51. Id. at 89, 104. Cooter and Ulen abstract this out to the argument that in the presence of transaction-cost barriers to exchange, the law should assign property rights to the party that values them most.
52. Id. at 98.
53. The root of this theme in the scholarship is Guido Calabresi & A. Douglas Melamed, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85 HARV. L. REV. 1089 (1972), which has spawned a vast literature.
54. E.g., Stewart E. Sterk, Property Rules, Liability Rules, and Uncertainty about Property Rights, 106 MICH. L. REV. 1285, 1289-95 (2008).
55. Henry E. Smith, Exclusion versus Governance: Two Strategies for Delineating Property Rights, 31 J. LEGAL STUD. S453 (2002).
56. Henry E. Smith, Property and Property Rules, 79 N.Y.U. L. REV. 1719 (2004). This perspective on property also tends to favor making as much of the world as possible the object of property. This universality has been critiqued by scholars concerned with the perils of commodification.
57. See infra note 51.
58. MILTON FRIEDMAN, ESSAYS IN POSITIVE ECONOMICS 62 (1953).
59. ROBERT H. FRANK, CHOOSING THE RIGHT POND: HUMAN BEHAVIOR AND THE QUEST FOR STATUS 37 (1985) ("In setting up formal models of economic behavior, economists almost always assume at the outset that a person's sense of well-being, or utility, depends on the absolute quantities of various goods he consumes, not on how those quantities compare with the amounts consumed by others.")
60. McAdams, supra note 13, at 7.
61. See infra Section II.B.3.
62. WILLIAM JAMES, THE PRINCIPLES OF PSYCHOLOGY 291-92 (Cosimo, Inc. 2007) (1890). Despite the anachronistically gendered tone of this passage, the insight that our sense of self is directly linked to our material possessions is widely recognized. Indeed, as Floyd Rudmin has noted, the link between property and identity has been a recurrent theme in the property literature since at least as far back as Aristotle. Floyd Webster Rudmin, Ownership as Interpersonal Dominance: A History and Three Studies of the Social Psychology of Property 6-8 (Mar. 1988) (unpublished doctoral thesis, Queen's University) (on file with author).
63. G.W.F. HEGEL, PHILOSOPHY OF RIGHT 40-57 (T.M. Knox trans., Oxford Univ. Press 1942) (1821). Beyond the more psychological aspects of Hegel's claims that appear in Philosophy of Right, Hegel also discussed property in more sociological terms, focusing on tensions between property owners and those without property in some of his earlier writing.
64. RYAN, supra note 24, at 119.
65. To Hegel, "individuals need private property in order to sustain and develop the abilities and self-conceptions definitive of their status as persons," and thus "they need to be able to 'embody' the freedom of their personalities in external objects so that their conceptions of themselves as persons cease to be purely subjective and become concrete and recognizable to themselves and others in a public and external world." JEREMY WALDRON, THE RIGHT TO PRIVATE PROPERTY 353 (1988).
66. For a discussion of Hegel's view of moral progression, see Peter G. Stillman, Property, Freedom and Individuality in Hegel's and Marx's Political Thought, in NOMOS XXII: PROPERTY, supra note 16, at 130, 130-31.
67. WALDRON, supra note 45, at 378.
68. Margaret Jane Radin, Property and Personhood, 34 STAN. L. REV. 957, 957 (1982).
69. Id. at 959.
70. Id. at 986-88.
71. Id. at 1013-15. Focusing on the concern that certain aspects of the self should not be made the object of property, or at least should not be made the basis for exchange, Radin and others have offered a counterpart to the universalizing tendencies of utilitarian and economic perspectives on property.
72. E.g., Margaret Jane Radin, Market-Inalienability, 100 HARV. L. REV. 1849 (1987).
73. Although Radin herself did not focus in depth on the psychological aspects of her personhood theory, others have. E.g., Stephanie Stern, Residential Protectionism and the Legal Mythology of Home, 107 MICH. L. REV. (forthcoming May 2009) (manuscript at 17-32, on file with author)
74. D. Benjamin Barros, Home as a Legal Concept, 46 SANTA CLARA L. REV. 255, 277-82 (2006).
75. See generally Leonard Bloom, People and Property: A Psychoanalytic. View, in To HAVE POSSESSIONS: A HANDBOOK ON OWNERSHIP AND PROPERTY 427 (Floyd W. Rudmin ed., 1991)
76. Jon L. Pierce et al., The State of Psychological Ownership: Integrating and Extending a Century of Research, 7 REV. GEN. PSYCHOL. 84 (2003).
77. See also Jeremy A. Blumenthal, "To Be Human": A Psychological Perspective on Property Law, 83 TUL. L. REV. (forthcoming Feb. 2009).
78. E.g., Lita Furby, The Origins and Early Development of Possessive Behavior, 2 POL. PSYCHOL. 30, 35 (1980) ("Possessions become integrated with the child's developing concept of self because they offer a very high degree of contingent control, almost as great as the control one experiences over one's body."). As Rudmin notes, the link between childhood development and possessions can be traced to James.
79. Rudmin, supra note 43, at 22.
80. See generally id. at 40-43 (reviewing studies of possessive behavior and related topics in child development).
81. E.g., HELGA DITTMAR, THE SOCIAL PSYCHOLOGY OF MATERIAL POSSESSIONS 115-16 (1992).
82. E.g., CSIKSZENTMIHALYI & ROCHBERG- HALTON, supra note 7. This literature highlights the role of possessions in reinforcing memory (as with favorite pictures), defining aspects of self (as with favorite music), and also shaping our sense of self in more abstract terms (as with possessions used to bolster confidence and stave off negative emotions). Much has been written about consumption as expressive of identity more generally.
83. E.g., SCHOR, supra note 18, at 45-63.
84. WALDRON, supra note 45, at 375-77.
85. Cf. Stern, supra note 52 (manuscript at 22) (arguing that, although Radin acknowledged the expressive aspects of property, her focus was primarily on property's "self-constructive" function).
86. See generally Stephen R. Munzer, Property as Social Relations, in NEW ESSAYS IN THE LEGAL AND POLITICAL THEORY OF PROPERTY 36 (Stephen R. Munzer ed., 2001).
87. Property as social relations shares a close conceptual affinity with, ecological perspectives on property, which likewise emphasize the embedded and interconnected nature of property. E.g., Craig Anthony Arnold, The Reconstitution of Property: Property as a Web of Interests, 26 HARV. ENVTL. L. REV. 281 (2002)
88. Joseph L. Sax, Takings, Private Property and Public Rights, 81 YALE L.J. 149, 152 (1971) ("Particular parcels are tied to one another in complex ways, and property is more accurately described as being inextricably part of a network of relationships that is neither limited to, nor usefully defined by, the property boundaries with which the legal system is accustomed to dealing.").
89. Indeed, the phrase "property as social relations" can be traced to Felix Cohen. Munzer, supra note 59, at 38
90. (noting that the phrase was coined in Felix S. Cohen, Dialogue on Private Property, 9 RUTGERS L. REV. 357, 361 (1954)).
91. See Robert L. Hale, Coercion and Distribution in a Supposedly Non-Coercive State, 38 POL. SCI. Q. 470 (1923).
92. See generally ROBERT L. HALE, FREEDOM THROUGH LAW (1952).
93. Macpherson, supra note 6, at 4.
94. Gregory Alexander has labeled this perspective the " proprietarian" vision of property. See generally GREGORY S. ALEXANDER, COMMODITY AND PROPRIETY: COMPETING VISIONS OF PROPERTY IN AMERICAN LEGAL THOUGHT 1776-1970 (1997).
95. See Gregory S. Alexander, The Social-Obligation Norm in American Property Law, 94 CORNELL L. REV. (forthcoming May 2009).
96. See Joseph William Singer, The Reliance Interest in Property, 40 STAN. L. REV. 611 (1988) [hereinafter Singer, Reliance Interest].
97. See generally JOSEPH WILLIAM SINGER, ENTITLEMENT: THE PARADOXES OF PROPERTY 209-13 (2000) [hereinafter SINGER, ENTITLEMENT].
98. Singer, Reliance Interest, supra note 66.
99. Davina Cooper, Opening Up Ownership: Community Belonging, Belongings, and the Productive Life of Property, 32 LAW & Soc. INQUIRY 625, 629-30 (2007) (arguing that the "most important" element of the work of property is "belonging" as defining social relations within a larger group).
100. Jennifer Nedelsky, Law, Boundaries and the Bounded Self, 30 REPRESENTATIONS 162 (1990)
101. Jennifer Nedelsky, Reconceiving Rights as Relationship, 1 REV. CONST. STUD. 1 (1993).
102. Eduardo M. Peñalver, Property as Entrance, 91 VA. L. REV. 1889 (2005)
103. see also Gregory Alexander & Eduardo Peñalver, Properties of Community, 10 THEORETICAL INQUIRIES IN L. 127 (2009).
104. Peñalver, supra note 70, at 1894.
105. See SINGER, ENTITLEMENT, supra note 66, at 207-08.
106. See supra text accompanying notes 61-68.
107. There is always a risk in this kind of interdisciplinary survey of cheny picking relevant insights while minimizing the theoretical richness and often clashing incompatibilities inherent in the exercise. It is important to acknowledge this risk - although this is not often enough done - and be clear that no claim is made here for exhausting the literature or reconciling the irreconcilable. Nonetheless, it would be just as inappropriate to ignore bodies of work that present stable, coherent themes that bear direct relevance, where they exist.
108. Discussions of the connection between property and status signaling go back as far as classical thought. See, e.g., Rudmin, supra note 43, at 7, 49 (arguing that when Aristotle wrote, in Ethics, that "the magnificent man spends not on himself but on public objects," he was acknowledging property's ability to signal status and cautioning against reinforcing "social distinction through consumption").
109. Cf. GRANT MCCRACKEN, CULTURE AND CONSUMPTION: NEW APPROACHES TO THE SYMBOLIC CHARACTER OF CONSUMER GOODS AND ACTIVITIES 10-22 (1988) (discussing the significant changes in patterns of consumption in the sixteenth and eighteenth centuries).
110. JESSE DUKEMINIER ET AL., PROPERTY 175-77 (6th ed. 2006)
111. see also David Lieberman, Property, Commerce, and the Common Law, in EARLY MODERN CONCEPTIONS OF PROPERTY 144 (John Brewer & Susan Staves eds., 1995).
112. CHARLES TAYLOR, SOURCES OF THE SELF: THE MAKING OF THE MODERN IDENTITY 11-12 (1989).
113. Margaret R. Somers, The "Misteries" of Property, in EARLY MODERN CONCEPTIONS OF PROPERTY, supra note 77, at 62, 63.
114. TAYLOR, supra note 78, at 11-13.
115. E.g., WOODRUFF D. SMITH, CONSUMPTION AND THE MAKING OF RESPECTABILITY, 1600-1800, at 25-26 (2002). Smith documents a consumer revolution that began in the seventeenth century and burgeoned in the eighteenth century, characterized by changes in the quantity and types of consumer goods available.
116. Id. at 6. As a result of changing culture and new patterns of trade, Europeans began consuming in new ways.
117. Id. at 6-8. For Smith, newfound buying power of laborers was connected to civil rights - and autonomy - which in turn provided motives to consume in order to further class and status distinctions and to emulate peers and superiors. Id. at 8.
118. DAVID HUME, A. TREATISE OF HUMAN NATURE 309 (L.A. Selby-Bigge ed., Oxford, Clarendon Press 1888) (1739) ("[T]he relation, which is esteem'd the closest, and which of all others produces most commonly the passion of pride, is that of property.").
119. Id. at 375 (" 'Tis evident we must receive a greater or less satisfaction or uneasiness from reflecting on our own condition and circumstances, in proportion as they appear more or less fortunate or unhappy, in proportion to the degrees of riches, and power, and merit, and reputation, which we think ourselves possest of. Now as we seldom judge of objects tram their intrinsic value, but form our notions of them from a comparison with other objects; it follows, that according as we observe a greater or less share of happiness or misery in others, we must make an estimate of our own, and feel a consequent pain or pleasure.").
120. Rudmin, supra note 43, at 49.
121. Id.
122. ROUSSEAU, supra note 1, at 66.
123. Rousseau's story of the corrupting influence of property in destroying what he considered to have been an idyllic state of nature may be as implausible (and ahistorical) as the story on which Locke based his labor theory, but it can be seen as a marker that captures a historically important perspective on property nonetheless. Thomas Hobbes had a similar view of the role of relative status in property, arguing that the "passion for power included the desire for riches, and this passion was insatiable since men would always compare themselves with others and strive for superiority." Rudmin, supra note 43, at 15 (discussing Hobbes).
124. ADAM SMITH, THE THEORY OF MORAL SENTIMENTS 70 (London, George Bell & Sons 1875) (1759).
125. 2 ADAM SMITH, AN INQUIRY INTO THE NATURE AND CAUSES OF THE WEALTH OF NATIONS 869-70 (R.H. Campbell et al. eds., Clarendon Press 1976) (1776).
126. JOHN STUART MILL, THREE ESSAYS ON RELIGION 87 (photo, reprint 1962) (1874).
127. JOHN STUART MILL, PRINCIPLES OF POLITICAL ECONOMY 869 (W.J. Ashley ed., Longmans, Green, and Co. 1909) (1848).
128. Id.
129. KARL MARX & FRIEDRICH ENGELS, MANIFESTO OF THE COMMUNIST PARTY 24-25 (Friedrich Engels ed., Infi Publ'rs 1933) (1848).
130. McAdams, supra note 13, at 11 n.30
131. (quoting KARL MARX, WAGE-LABOUR AND CAPITAL 33 (Int'l Publ'r 1976) (1849)).
132. MARX & ENGELS, supra note 93, at 23-25.
133. See generally McAdams, supra note 13, at 11-12 & n.30 (also citing, for example, JOHN RAE, THE NEW PRINCIPLES OF POLITICAL ECONOMY (1834)
134. reprinted in SOCIOLOGICAL THEORY OF CAPITAL (Charles W. Mixter ed., 1905) for identifying social waste associated with "vanity," and Alfred Marshall, the progenitor of modern demand theory, who examined the "power and prevalence of the human desire for 'distinction' ")
135. Rudmin, supra note 43, at 54 (noting Herbert Spencer's discussion of the role of property as a "ceremonial institution" through which trophy possessions "give to their owner some influence over those around him." (citing 2 HERBERT SPENCER, PRINCIPLES OF SOCIOLOGY 36 (1879))).
136. VEBLEN, supra note 17. Vehlen's theories have generated a vast literature, some of which is explored below. Veblen has been attacked on several fronts - for misunderstanding the nature of status consumption, underestimating individual agency in consumption decisions, and oversimplifying status relations, among others.
137. See Juliet B. Schor, In Defense of Consumer Critique: Revisiting the Consumption Debates of the Twentieth Century, 611 ANNALS AM. ACAD. POL. & Soc. Sci. 16, 19-21 (2007). Veblen's insights into the status-related nature of property, however, remain deeply influential.
138. VEBLEN, supra note 17, at 22.
139. Id. ("The motive that lies at the root of ownership is emulation; and the same motive of emulation continues active in the further development of the institution to which it has given rise and in the development of all those features of the social structure which this institution of ownership touches.").
140. Id.
141. Id. at 23 ("Ownership began and grew into a human institution on grounds unrelated to the subsistence minimum. The dominant incentive was from the outset the invidious distinction attaching to wealth, and, save temporarily and by exception, no other motive has usurped the primacy at any later stage of the development.").
142. Id. at 25.
143. Id.
144. Id. at 49-72.
145. Id. at 58-59. Veblen noted two related processes: invidious comparison, in which consumption is used to mark higher status, and "pecuniary emulation," in which consumption is used to signal upward mobility.
146. Id. at 25-26.
147. The literature offers a number of explanations for what generates the comparative drive in general. See, e.g., FRANK, supra note 41, at 21-26
148. Oliver Goodenough, values, Mechanism Design, and Fairness, in MORAL MARKETS: THE CRITICAL ROLE OF VALUES IN THE ECONOMY 13 (Paul J. Zak ed., 2007)
149. BELL HOOKS, WHERE WE STAND: CLASS MATTERS (2000). For present purposes, it is sufficient to recognize the existence of the comparative drive in contemporary American culture-with some emphasis on the psychological and social psychological aspects of the phenomenon.
150. See Rudmin, supra note 43, at 3 ("Property is a form of symbolic expression. A. person's material possessions communicate personal and social information, dependent on cultural norms of interpretation.")
151. see also Rose, supra note 4, at 5 (noting that "the proper study of property is communication, rhetoric, language").
152. See DOUGLAS & ISHERWOOD, supra note 5, at 59 ("It is standard ethnographic practice to assume that all material possessions carry social meanings and to concentrate a main part of cultural analysis upon their use as communicators.").
153. See generally ROLAND BARTHES, ELEMENTS OF SEMIOLOGY (Annette Lavers & Colin Smith trans., Hill and Wang 1967) (1964)
154. Sonia K. Katyal, Semiotic Disobedience, 84 WASH. U. L. REV. 489, 521-24 (2006).
155. Rudmin, supra note 43, at 53 (discussing EMILE DURKHEIM, THE ELEMENTARY FORMS OF THE RELIGIOUS LIFE (Joseph Ward Swain trans., George Allen & Unwin, Ltd. 1915) (1912)).
156. Landmark works in the symbolic interactionist literature include HERBERT BLUMER, SYMBOLIC INTERACTIONISM: PERSPECTIVE AND METHOD (1969)
157. ERVING GOFFMAN, THE PRESENTATION OF SELF IN EVERYDAY LIFE (1959)
158. and BERNARD N. MELTZER ET AL., SYMBOLIC INTERACTIONISM: GENESIS, VARIETIES AND CRITICISM (1975). Symbolic interactionism has its roots in the sociological writings of Max Weber and the philosophy of George Herbert Mead, with their mutual emphasis on both the social process and the subjective meaning of human behavior. As discussed below, similar roots underpin the social psychological literature on social comparison.
159. See infra Section. II.B.2.
160. BLUMER, supra note 111, at 2. As Blumer wrote, meaning is interactive - is a social product-in that the "meaning of a thing for a person grows out of the ways in which other persons act toward the person with regard to the thing." Id. at 4.
161. MELTZER ET AL., supra note 111, at 2.
162. CHARLES HORTON COOLEY, HUMAN NATURE AND THE SOCIAL ORDER 168-210 (Transaction Books 1983) (1902).
163. Id. at 184.
164. See DITTMAR, supra note 55, at 65-94.
165. See BLUMER, supra note 111, at 10-11 (discussing the nature of objects - physical and abstract - that form the basis for symbolic interaction)
166. E. Doyle McCarthy, Toward a Sociology of the Physical World: George Herbert Mead on Physical Objects, 5 STUD. SYMBOLIC INTERACTION 105 (1984).
167. Cf. Russell W. Belk, Assessing the Effects of Visible Consumption on Impression Formation, 5 ADVANCES CONSUMER RES. 39, 39 (1978) ("The belief that a person's possession and expenditures reveal something about the person may be one of the strongest cultural universais affecting consumer behavior. In virtually all cultures, visible products and services are the bases for inferences about the status, personality, and disposition of the owner or consumer of these goods.").
168. MCCRACKEN, supra note 76, at 68
169. see also Andrew N. Christopher et al., Materialism and self-presentational styles, 38 PERSONALITY & INDIVIDUAL DIFFERENCES 137 (2005).
170. Cf DITTMAR, supra note 55, at 65 (citing survey evidence for the proposition that "the symbolic aspects of possessions are more important than their practical functions").
171. A number of consumer scholars have explored the Jamesian link between possessions and the "extended self in the consumer culture context. E.g., Aaron C Ahuvia, Beyond the Extended Self: Loved Objects and Consumers' Identity Narratives, 32 J. CONSUMER RES. 171 (2005)
172. Eric J. Arnould & Craig J. Thompson, Reflections, Consumer Culture Theory (CCT): Twenty Years of Research, 31 J. CONSUMER RES. 868 (2005)
173. Russell W Belk, Possessions and the Extended Self, 15 J. CONSUMER RES. 139 (1988)
174. Hope Jensen. Schau, Consumer Imagination, Identity and Self-expression, 27 ADVANCES CONSUMER RES. 50 (2000)
175. Michael R. Solomon, The Role of Products as Social Stimuli: A Symbolic Interactionism Perspective, 10 J. CONSUMER RES. 319
176. E.g., Gregory P. Stone, Appearance and the Self, in HUMAN BEHAVIOR AND SOCIAL PROCESSES: AN INTERACTIONIST APPROACH 86 (Arnold M. Rose ed., 1962).
177. E.g., Angela Chao & Juliet B. Schor, Empirical tests of status consumption: Evidence from women's cosmetics, 19 J. ECON. PSYCHOL. 107 (1998).
178. E.g., Edward K. Sadalla et al., Identity Symbolism in Housing, 19 ENV'T & BEHAV. 569, 572-73, 583-86 (1987).
179. E.g., Samuel D. Gosling et al., A Room With a Cue: Personality Judgments Based on Offices and Bedrooms, 82 J. PERSONALITY & Soc. PSYCHOL. 379 (2002).
180. E.g., Americus Reed II, Activating the Self-importance of Consumer Selves: Exploring Identity Salience Effects on Judgments, 31 J. CONSUMER RES. 286, 293 (2004).
181. Helga Dittmar et al., Fine feathers make fine birds: a comparative study of the impact of material wealth on perceived identities in England and Italy, 4 Soc. BEHAV. 195 (1989).
182. See DITTMAR, supra note 55, at 10.
183. See id. at 88-92.
184. Cf. Grant McCracken, Culture and Consumption: A Theoretical Account of the Structure and Movement of the Cultural Meaning of Consumer Goods, 13 J. CONSUMER RES. 71 (1986). McCracken explores the "alienable, moveable, manipulable quality" of the meaning of consumer goods.
185. Id. at 81.
186. GOFFMAN, supra note 111, at 208.
187. Id. at 22-30, 51-58.
188. Cf. id. at 228-55 (discussing the conscious process of staging to express the self and the social dialectic in which that presentation occurs).
189. For some recent important works in this literature, see, for example, SOCIAL COMPARISON AND SOCIAL PSYCHOLOGY (Serge Guimond ed., 2006)
190. and SOCIAL COMPARISON: CONTEMPORARY THEORY AND RESEARCH (Jeny Suis & Thomas Ashby Wills eds., 1991).
191. Leon Festinger, A Theory of Social Comparison Processes, 7 HUM. REL. 117 (1954).
192. Id. at 118; see also Jerry M. Suis, Social Comparison Theory and Research: An Overview from 1954, in SOCIAL COMPARISON PROCESSES 1, 3 (Jerry M. Suis & Richard L. Miller eds., 1977).
193. Festinger, supra note 135, at 118-19.
194. Id.
195. Id.
196. See Dale T. Miller & Deborah A. Prentice, The Construction of Social Norms and Standards, in SOCIAL PSYCHOLOGY: HANDBOOK OF BASIC PRINCIPLES 799 (E. Tory Higgins & Arie W. Kruglanski eds., 1996). Thus, people tend to compare themselves to people who are similar enough to make the comparison meaningful.
197. Ladd Wheeler, A Brief History of Social Comparison Theory, in SOCIAL COMPARISON: CONTEMPORARY THEORY AND RESEARCH, supra note 134, at 3, 9-10.
198. Id.
199. Recent scholarship in this field has also highlighted group dynamics in status comparisons, underscoring that comparisons play out not only in terms of individual characteristics, but also in terms of the perceived characteristics of groups with which people self-identify. See, e.g., Alison Ledgerwood et al., Group-Identity Completion and the Symbolic Value of Property, 18 PSYCHOL. SCI. 873, 873 (2007) (arguing that "property derives value from its capacity to serve as an effective means in the pursuit of group-identity goals").
200. See generally SOCIAL COMPARISON AND SOCIAL PSYCHOLOGY, supra note 134.
201. See Jonah Berger & Chip Heath, Where Consumers Diverge from Others: Identity Signaling and Product Domains, 34 J. CONSUMER RES. 121 (2007) (discussing the differentiation and uniqueness literature in psychology and consumer research).
202. The New York Times, for example, recently ran an extended series entitled Class Matters, which divided Americans into the "Top Fifth," the "Upper Middle," the "Middle," the "Lower Middle," and "Bottom Fifth," exploring four "commonly used criteria for gauging class," specifically occupation, education, income, and wealth.
203. See, e.g., Janny Scott & David Leonhardt, Class in America: Shadowy Lines That Still Divide, N.Y. TIMES, May 15, 2005, at Al. This series was controversial for its treatment of several matters but gives a strong indication of where mainstream thinking about class is today.
204. See Roger V. Gould, The Origins of Status Hierarchies: A Formal Theory and Empirical Test, 107 AM. J. Soc. 1143, 1143 (2002) ("[A]cross a wide range of scales and contexts, actors are sorted into social positions that carry unequal rewards, obligations, and expectations.").
205. MAX WEBER, THE THEORY OF SOCIAL AND ECONOMIC ORGANIZATION 428-29 (Talcott Parsons ed., A.M. Henderson & Talcott Parsons trans., The Free Press 1997) (1915). It is interesting to note that Weber cited Veblen in his work on status, particularly for the connection between status and coercive power represented through property.
206. See Rudmin, supra note 43, at 51 (discussing Weber and Veblen).
207. At a community level, public, nonprofit, or prominent private properties (such as museums or ever-taller skyscrapers) can have status dynamics associated with them. Public works are often explicitly about community status, with communities touting the biggest building, the biggest bridge, the best performing arts center, and the like.
208. See generally PIERRE BOURDIEU, DISTINCTION: A SOCIAL CRITIQUE OF THE JUDGMENT OF TASTE (1984) (discussing the taste/consumer preference-status connection)
209. Lewis Friedland et al., Capital, Consumption, Communication, and Citizenship: The Social Positioning of Taste and Civic Culture in the United States, 611 ANNALS AM. ACAD. POL. & SOC. SCI. 31 (2007).
210. Cf. Marsha L. Richins, Social Comparison, Advertising, and Consumer Discontent, 38 AM. BEHAV. SCIENTIST 593 (1995).
211. Cf. Niklas Karlsson et al., Social Comparison and Consumer Behavior: When Feeling Richer or Poorer Than Others Is More Important Than Being So, 35 J. APPLIED SOC. PSYCHOL. 1206, 1219-21 (2005).
212. Cf. John Sabini & Maury Silver, Envy, in THE SOCIAL CONSTRUCTION OF EMOTIONS 167, 172 (1986) (asserting that all status is inherently comparative).
213. As noted above, some scholars have rooted comparative drives in biological factors as well as social factors, but it is unnecessary to identify the source of this drive to acknowledge its existence and relevance. See supra note 106.
214. Although McAdams argued that recognition of status relations stood outside the mainstream of economics, and thus law and economics, see McAdams, supra note 13, there has been much renewed interest in this topic
215. see, e.g., Laurie Simon Bagwell & B. Douglas Bernheim, Veblen Effects in a Theory of Conspicuous Consumption, 86 AM. ECON. REV. 349, 349 n.1 (1996) (outlining research on "prestige" and "status" goods)
216. Bill Dupor & Wen-fang Liu, Jealousy and Equilibrium Overconsumption, 93 AM. ECON. REV. 423 (2003)
217. Gertrud M. Fremling & Richard A. Posner, Status Signaling and the Law, with Particular Application to Sexual Harassment, 147 U. PA. L. REV. 1069, 1070-75 & n.2 (1999).
218. McAdams, supra note 13, at 7-10.
219. Within economics, a focus on comparative demand is often traced to JAMES S. DUESENBERRY, INCOME, SAVING AND THE THEORY OF CONSUMER BEHAVIOR (1949), which developed an early theory of consuming and saving that focused on individual decisions tied to general levels of consumption and saving in society.
220. Even earlier explorations can be traced to A.C. Pigou, The Interdependence of Different Sources of Demand and Supply in a Market, 23 ECON. J. 19 (1913), which stated: "As regards demand, the essential matter is that people do, in fact, desire many things, not merely for their own sake, but, in the main, on account of the reputation or distinction which the possession of them confers."
221. Id. at 20.
222. FRANK, supra note 41, at 7 (citing FRED HIRSCH, SOCIAL LIMITS TO GROWTH (1976), for the term "positional goods").
223. Id. at 17-38. Frank notes that individuals can game local status races by choosing a different "league" in which to compete-choosing to be a bigger frog in a comparatively smaller pond, to use his metaphor. But Frank highlights the obvious costs of such status-related moves and from this observation argues that an implicit market for relative status (purchasers having relatively higher status and sellers having relatively lower status) operates in many situations.
224. Id. at 136-37.
225. See ROBERT FRANK, LUXURY FEVER: WHY MONEY FAILS TO SATISFY IN AN ERA OF EXCESS 207 (1999) (likening the incentives resulting from conspicuous consumption with those creating excess pollution). British economist Richard Layard has made an even more explicit link between relative inequality and the tragedy of the commons.
226. See RICHARD LAYARD, HAPPINESS: LESSONS FROM A NEW SCIENCE 35 (2005).
227. Empirical work supports the status-seeking predicates of what Juliet Schor has described as the Veblenian account of consumption. See Robert L. Basmann et al., A Note on Measuring Veblen's Theory of Conspicuous Consumption, 70 REV. ECON. & STAT. 531, 534 (1988) (drawing post-World War II commodity-expenditure data for empirical support)
228. Chao & Schor, supra note 123, at 108; Schor, supra note 97, at 16.
229. DUESENBERRY, supra note 156, at 29-32, 45.
230. See FRANK, supra note 41, at 146-49 (discussing these theories).
231. Luis Rayo & Gary S. Becker, Peer Comparisons and Consumer Debt, 73 U. CHI. L. REV. 231 (2006). For further discussion of the nature of durable goods in status comparisons
232. see infra text accompanying notes 174-76.
233. Rayo & Becker, supra note 164, at 232.
234. Erving Goffman, Symbols of Class Status, 2 BRIT. J. SOC. 294, 294 (1951)
235. see also William H. Form & Gregory P. Stone, Urbanism, Anonymity, and Status Symbolism, 62 AM. J. SOC. 504 (1957) (exploring Goffman's communication structure across varying social settings).
236. While status may be a particularly noteworthy category of information that property communicates, it is by no means the only message. For example, purchasing and driving a Prius may send a kind of hierarchical message ("I'm more environmentally conscious than Hummer drivers are"), but it also sends messages about environmental consciousness, comfort with technology, and the like. Likewise, an SUV may signal wealth in general terms (and some models more than others) but, to some consumers, it also represents spottiness, a love of the outdoors, or safety consciousness. This variety of messages can hold true for types property beyond large-scale consumer items.
237. Russell W. Belk et al., Developmental Recognition of Consumption Symbolism, 9 J. CONSUMER RES. 4 (1982)
238. see also JULIET B. SCHOR, BORN TO BUY 13, 19 (2004).
239. E.g., Bagwell & Bemheim, supra note 154, at 350 (modeling "Veblen effects" as "a willingness to pay a higher price for a functionally equivalent good" due to "the desire to signal wealth"). Veblen himself famously illustrated this phenomenon with the example of silver utensils for eating, which although much more expensive than utensils made of other material, are not any more useful and may be less so.
240. VEBLEN, supra note 17, at 85-86.
241. See H. Leibenstein, Bandwagon, Snob, and Veblen Effects in the Theory of Consumers' Demand, 64 Q.J. ECON. 183, 190 (1950).
242. Id. at 199.
243. Id. at 202-05
244. Bagwell & Bernheim, supra note 154, at 349-50.
245. Conversely, as anthropologists have pointed out, "quality" can simply be a function of objects' abilities to serve as "rank markers." DOUGLAS & ISHERWOOD, supra note 5, at 117-18.
246. See Rayo & Becker, supra note 164, at 232.
247. Id.
248. Id. at 233-34.
249. Nicholas Blomley, Landscapes of Property, 32 LAW & SOC'Y. REV. 567 (1998) (discussing the social construction of space).
250. See FRANK, supra note 160, at 28-29 (describing premiums commanded in real estate for views and "choice" locations).
251. See Berger & Heath, supra note 144.
252. See FRANK, supra note 160, at 3-4.
253. Cf. BOURDIEU, supra note 149 (discussing the taste-preferences of different social groups).
254. Cf. Fredrik Carlsson et al., Do You Enjoy Having More than Others? Survey Evidence of Positional Goods, 74 ECONOMICA 586, 590-96 (2007) (describing survey evidence that suggests that some goods, such as income and cars, have more positional value than others, such as leisure and car safety). Indeed, in some communities, there is arguably a negative association between property and status-what might be considered an anti-property attitude, where members of the community who display property too overtly can be ostracized. And, in some cultural contexts giving away property can confer status in much the same way that obtaining and displaying property generally does in our culture.
255. Cf. MARGARET JANE RADIN, REINTERPRETING PROPERTY 170 (1993) (discussing the culture of property).
256. E.g., CSIKSZENTMIHALYI & ROCHBERG- HALTON, supra note 7, at 105-12
257. Floyd W. Rudmin, Gender differences in the semantics of ownership: A quantitative phenomenological survey study, 15 J. ECON. PSYCHOL. 487, 504 (1994).
258. E.g., Lita Furby, Possessions: Toward a Theory of Their Meaning and Function Throughout the Life Cycle, 1 LIFESPAN DEVELOPMENT AND BEHAVIOR 297 (Paul B. Baltes ed., 1978)
259. James W. Gentry et al., The Role of Possessions in Creating, Maintaining, and Preserving One's Identity: Variation Over the Life Course, 22 ADVANCES CONSUMER RES. 413 (1995).
260. Some studies, moreover, have adduced evidence that conspicuous consumption varies by race. E.g., Chao & Schor, supra note 123, at 124
261. Kerwin Kofi Charles et al., Conspicuous Consumption and Race (Nat'l Bureau of Econ. Research, Working Paper No. 13392, 2007), available at http://ssrn.com/ abstract=1014340.
262. Robert H. Frank, The Demand for Unobservable and Other Nonpositional Goods, 75
263. AM. ECON. REV. 101, 107-08 (1985)
264. McAdams, supra note 13, at 5; see also Marsha L. Richins, Valuing Things: The Public and Private Meanings of Possessions, 21 J. CONSUMER RES. 504, 516-18 (1994) (discussing the dual nature of value in possessions as generating public and private meaning). It is worth noting that, at a certain extreme level of wealth, privacy itself can become a luxury good.
265. Cf. Fennell, supra note 20, at 1054-59 (discussing home ownership and status).
266. There is some evidence that among the generation raised on MySpace and Facebook, this taboo may be weakening. See Alex Williams, Not-So-Personal Finance, N.Y. TIMES, Apr. 27, 2008, at ST1.
267. Rudmin, supra note 43, at 55.
268. Philip Brickman & Ronnie Janoff Bulman, Pleasure and Pain in Social Comparison, in SOCIAL COMPARISON PROCESSES, supra note 136, at 149, 152, 156-57.
269. There is some scholarship, moreover, that calls into question the use of possessions as status symbols. E.g., Rudmin, supra note 43, at 55 (reviewing studies). But this work, while reminding that the symbolic nature of property is highly contextual, stands in contrast to the significant theoretical and empirical literature undergirding the idea that property is a ubiquitous status symbol.
270. See supra Sections II.A-B.
271. As Frank has argued, status races play out in. a wide variety of markets. See FRANK, supra note 41, at 87-108.
272. See, e.g., HENRY CLAY LINDGREN, GREAT EXPECTATIONS: THE PSYCHOLOGY OF MONEY 58-63 (1980).
273. See, e.g., DOUGLAS & ISHERWOOD, supra note 5, at 182
274. VEBLEN, supra note 17.
275. Cf. Charles et al., supra note 185, at 32 (finding that consumption of visible goods accounts for sixty percent of the difference in spending between whites and minorities on education, health care, food, and housing).
276. See, e.g., RONALD INGLEHART, CULTURE SHIFT IN ADVANCED INDUSTRIAL SOCIETY 66, 103 (1990).
277. Schor, supra note 97, at 24.
278. SMITH, supra note 88, at 71.
279. VEBLEN, supra note 17.
280. See Schor, supra note 97, at 23-24 (discussing the emergence, and limits, of "agentic" consumption).
281. One can access, for example, web sites such as http://www.zillow.com to get an instant estimate not only of the value of your own home, but also of the homes of all of your neighbors.
282. Albert C. Lin, Virtual Consumption: A Second Life for Earth?, 2008 BYU L. REV. 47, 97.
283. SINGER, ENTITLEMENT, supra note 66, at 205.
284. See, e.g., Fremling & Posner, supra note 154, at 1074 ("In a dynamic society, such as that of the United States, the desire to enhance one's status is generally a spur to socially beneficial rivalry. People in a society that is open, mobile, and competitive usually cannot obtain high status without achievements, so status rivalry motivates people to work harder than they would otherwise. Unless they can appropriate the entire social product of their harder work, they confer external benefits.").
285. See supra text accompanying notes 157-59.
286. See generally SCHOR, supra note 18.
287. See, e.g., Leaf Van Boven, Experientialism, Materialism, and the Pursuit of Happiness, 9 REV. GEN. PSYCHOL. 132 (2005) (discussing research findings on materialism and happiness).
288. See, e.g., TIM KASSER, THE HIGH PRICE OF MATERIALISM 87-95 (2002).
289. See William E. Rees, Ecological footprints and appropriated carrying capacity: what urban economics leaves out, ENV' T. & URBANIZATION, Oct. 1992, at 121.
290. See Marsha L. Richins & Floyd W. Rudmin, Materialism and economic psychology, 15 J. ECON. PSYCHOL. 217, 218 (1994).
291. Goffman, supra note 166, at 296.
292. Id.
293. See Stuart R. Berkowitz, The Subprime Mortgage Mess - A Primer to Assist Investors, 64 J. MO. B. 122, 123 (2008).
294. The government, particularly the federal government, directly promotes home ownership primarily through the federal income-tax deduction for mortgage interest and property taxes. See ALEX F. SCHWARTZ, HOUSING POLICY IN THE UNITED STATES 69-76 (2006). But there is also a significant policy apparatus actively selling the more abstract value of home ownership.
295. See, e.g., George W. Bush, Proclamation No. 8263, 73 Fed. Reg. 31, 747 (May 29, 2008) ("For many Americans, owning a home represents freedom, independence, and the American dream. During National Homeownership Month, we highlight the benefits of owning a home and encourage our fellow citizens to be responsible homeowners.").
296. McAdams, supra note 13, at 4-5 (emphasis omitted).
297. See id. at 15-16.
298. Richard A. Easterlin, Does Money Buy Happiness!, 30 PUB. INT. 3 (1973)
299. Richard A. Easterlin, Will raising the incomes of all increase the happiness of all?, 27 J. ECON. BEHAV. & ORG. 35 (1995).
300. Easterlin's data have been challenged. E.g., Betsey Stevenson & Justin Wolfers, Economic Growth and Subjective Weil-Being: Reassessing the Easterlin Paradox (Aug. 25, 2008) (unpublished manuscript), available at http://ssrn.com/abstract=1121237. But there is additional research supporting the tenuousness of the link, beyond subsistence, between absolute wealth and happiness.
301. See Andrew E. Clark et al., Relative Income, Happiness and Utility: An Explanation for the Easterlin Paradox and Other Puzzles (June 2007) (unpublished manuscript), available at http://ssrn.com/abstract=998225.
302. E.g., Leaf Van Boven & Thomas Gilovich, To Do or to Have? That Is the Question, 85 J. PERSONALITY & SOC. PSYCHOL. 1193 (2003) (discussing research on experiential purchases versus material purchases).
303. There is a growing literature on people's adaptation to changing conditions, particularly reactions to negative events and ability to gauge accurately how positive events will change people's subjective sense of well-being. See, e.g., Cass R. Sunstein, Illusory Losses 13-17 (AEI-Brookings Joint Crrr. for Regulatory Studies, Working Paper No. 07-07, July 2007), available at http://ssrn.com/abstract=983810.
304. E.g., McAdams, supra note 13, at 55-59 (identifying conditions under which the satisfaction, of "inherently conflicting preferences" misallocates resources toward zero-sum competition and creates social waste).
305. To be clear, as with the externalities that status-related consumption and the drive for positional goods can generate, identifying the negative aspects of identity formation through property-related comparisons focuses on what is potentially harmful about the cycle. This is not an argument that the drive to compare is inherently negative.
306. See supra text accompanying notes 48-51.
307. E.g., Stephen J. Schnably, Property and Pragmatism: A Critique of Radin's Theory of Property and Personhood, 45 STAN. L. REV. 347, 391 & n.209 (1993).
308. E.g., JEANNE LORRAINE SCHROEDER, THE TRIUMPH OF VENUS: THE EROTICS OF THE MARKET 66-74 (2004).
309. For an argument, however, that privileging property in legal theory on personhood grounds lacks an empirical basis, see Stern, supra note 52 (manuscript at 4) ("[T]here is little evidence that any possession is constitutive of personhood or necessary for human flourishing.").
310. See supra note 32.
311. E.g., Nicholas A. Christakis & James H. Fowler, The Collective Dynamics of Smoking in a Large Social Network, 358 NEW ENG. J. MED. 2249 (2008)
312. Nicholas A. Christakis & James H. Fowler, The Spread of Obesity in a Large Social Network Over 32 Years, 357 NEW ENG. J. MED. 370 (2007).
313. See supra note 143.
314. For discussion of the role of law in instantiating these markers of status, see infra Part IV.
315. See Nestor M. Davidson, Standardization and Pluralism in Property Law, 61 VAND. L. REV. 1597 (2008).
316. Although pluralist theories resist the tendency to assert normative and functional priorities, they, too, often devolve to assertions of normative or instrumental preference. See, e.g., STEPHEN R. MUNZER, A. THEORY OF PROPERTY 292-316 (1990) (applying a pluralist theory of property justifications and outlining a metatheory to resolve conflicts between and within justificatory theories).
317. See supra note 2.
318. E.g., MARYLYNN SALMON, WOMEN AND THE LAW OF PROPERTY IN EARLY AMERICA XV, 14-18, 185-93 (1986) (discussing the "enforced dependence" of women with respect to property in early American history)
319. Spencer Overton, Racial Disparities and the Political Function of Property, 49 UCLA L. REV. 1553, 1558-59 (2002) ("[L]aws and policies that allowed confiscation of land from Native Americans and Mexican Americans, promoted enslavement of African. Americans, and prohibited immigration from non-European countries triggered racial disparities in the control of resources. Policies that mandated segregation in education, employment, housing, and business exacerbated these disparities." (footnotes omitted)).
320. Some scholars have argued that greater legal protection is needed for certain status-related goods. E.g., Anne Theodore Briggs, Hung Out to Dry: Clothing Design Protection Pitfalls in United States Law, 24 HASTINGS COMM. & ENT. L.J. 169, 209 (2002) (discussing European competition as a ground for protecting domestic producers of fashion goods)
321. Joseph Cockman, Note, Running from the Runway: Trade Dress Protection in an Age of Lifestyle Marketing, 89 IOWA L. REV. 671 (2004) (arguing that the efforts producers invest in developing "lifestyle" goods that relate to status should merit legal protection) .
322. Jeffrey L. Harrison, Trademark Law and Status Signaling: Tattoos for the Privileged, 59 U. FLA. L. REV. 195 (2007).
323. Id. at 197. As Harrison argues, trademark, law functions to lower consumer search costs by granting exclusive rights to identify the source of a product.
324. Id. at 198.
325. He argues that consumer confusion associated with status-which he identifies as currently protected by the Lanham Act and possibly by the Federal Trademark Dilution Act as well-is an illegitimate basis for legal protection.
326. Id. at 200-04.
327. Returning to Leibenstein's distinction between Veblen effects and snob effects, see supra text accompanying notes 170-72, Harrison argues that there is no economic basis for assuming the underproduction of goods that supply a demand for wealth signaling nor for goods that depend on scarcity (although in the latter case, Harrison models one scenario in which there may be a net consumer surplus from subsidizing this scarcity).
328. Harrison, supra note 236, at 210-19.
329. Jonathan M. Barnett, Shopping for Gucci on Canal Street: Reflections on Status Consumption, Intellectual Property, and the Incentive Thesis, 91 VA. L. REV. 1381, 1384-85 (2005). This, to Barnett, undermines the necessity of intellectual property on incentive theories.
330. See id. at 1412 (arguing that the "standard incentive thesis in the intellectual property literature" would anticipate incorrectly that the absence of legal protection for fashion goods would yield underproduction of those goods, when the empirical evidence suggests that a vigorous market for such goods exists despite extensive counterfeiting).
331. Cf. Katyal, supra note 109 (exploring the ways in which consumers and others subvert corporate control of the symbolism of property).
332. Malla Pollack, Your Image Is My Image: When Advertising Dedicates Trademarks to the Public Domain-With an Example From the Trademark Counterfeiting Act of 1984, 14 CARDOZO L. REV. 1391 (1993).
333. One could conceivably make a First Amendment argument that status signaling is protected speech, and thus entitled to protection from regulation. This argument seems a stretch, though, given the attenuated nature of the message and the differences between status signaling and the kinds of communication traditionally protected by First Amendment doctrine. Cf. John Greenman, On Communication, 106 MICH. L. REV. 1337, 1361-63 (2008) (defining communication under the law).
334. In land use and real property, however, legal sanction is not entirely limited to this structural role. As Stephanie Stern has argued, many aspects of residential real estate relate to the "self-expressive capacity" that this particular resource carries-a resource that is eminently vulnerable to symbolic manipulation. Stern, supra note 52 (manuscript at 23) (arguing against laws that "create a right to display a social status or income level that the owner does not necessarily possess").
335. E.g., DAVID L. KIRP ET AL., OUR TOWN: RACE, HOUSING, AND THE SOUL OF SUBURBIA (1995).
336. E.g., JAMES HOWARD KUNSTLER, THE GEOGRAPHY OF NOWHERE: THE RISE AND DECLINE OF AMERICA'S MAN-MADE LANDSCAPE (1993)
337. cf. Katharine B. Silbaugh, Women's Place: Urban Planning, Housing Design, and Work-Family Balance, 76 FORDHAM L. REV. 1797 (2007) (arguing that traditional patterns of suburban land use exact a material cost on work/life balance).
338. E.g., John R. Nolon & Jessica A. Bacher, Climate Change, Zoning and Transportation Planning: Urbanization as a Response to Carbon Loading, 36 REAL EST. L.J. 211 (2007).
339. Richard Briffault, Beyond City and Suburb: Thinking Regionally, 116 YALE L.J. POCKET PART 203 (2006), http://yalelawjoumal.org/images/pdfs/91.pdf.
340. Cf. CONSTANCE PERIN, EVERYTHING IN ITS PLACE: SOCIAL ORDER AND LAND USE IN AMERICA 70-77 (1977) (describing the "American ideal of homeownership"). As many commentators have noted, the origins of American suburbia involved in no small measure a self-conscious movement to create and market status-oriented environments on a broad scale.
341. See, e.g., ROBERT FISHMAN, BOURGEOIS UTOPIAS: THE RISE AND FALL OF SUBURBIA (1987)
342. KENNETH T. JACKSON, CRABGRASS FRONTIER: THE SUBURBANIZATION OF THE UNITED STATES (1985).
343. See supra text accompanying notes 177-78.
344. See PERIN, supra note 247, at 210-17.
345. Cf. Lior Jacob Strahilevitz, Exclusionary Amenities in Residential Communities, 92 VA. L. REV. 437, 437 (2006) ("[Developers will select common amenities not only on the basis of which amenities are inherently welfare-maximizing for the residents, but also on the basis of which amenities most effectively deter undesired residents from purchasing homes therein.").
346. Manuel Castells, European Cities, the Informational Society, and the Global Economy, in THE CITY READER 475, 481-82 (Richard T. LeGates & Frederick Stout eds., 3d ed. 2003).
347. See, e.g., Daniel Kahneman et al., A Survey Method for Characterizing Daily Life Experience: The Day Reconstruction Method, 306 SCIENCE 1776 (2004) (identifying commuting as the worst single subjective daily activity)
348. Alois Stutzer & Bruno S. Frey, Stress That Doesn't Pay: The Commuting Paradox, 110 SCANDINAVIAN J. ECON. 339 (2008).
349. Cf. DOUGLAS & ISHERWOOD, supra note 5, at 89 ("We have cast our argument about goods in terms of access to information. Those who can control that access act rationally if they seek a monopoly advantage. Their rational strategy then would be to erect barriers against entry, to consolidate control of opportunities, and to use techniques of exclusion.").
350. WILLIAM A. FISCHEL, THE HOMEVOTER HYPOTHESIS: How HOME VALUES INFLUENCE LOCAL GOVERNMENT TAXATION, SCHOOL FINANCE, AND LAND-USE POLICIES (2001).
351. See generally Claire Priest, Creating an American Property Law: Alienability and Its Limits in American History, 120 HARV. L. REV. 385 (2006).
352. Richard K. Green & Susan M. Wachter, The American Mortgage in Historical and International Context, J. ECON. PERSP., Fall 2005, at 93, 95.
353. Creola Johnson, Stealing the American Dream: Can Foreclosure-Rescue Companies Circumvent New Laws Designed to Protect Homeowners From Equity Theft?, 2007 WIS. L. REV. 649, 656.
354. FRANK, supra note 160, at 3 (average house built in the United States has nearly doubled in size since the 1950s)
355. Lin, supra note 202, at 54 n.25 (average new-home size more than doubled from 1100 square feet in the 1950s to 2340 square feet by 2002).
356. See Rayo & Becker, supra note 164.
357. See DUKEMINIER ET AL., supra note 77, at 195.
358. Id. at 240-51 (discussing common-law rules that resist dead-hand control over assets).
359. E.g., id.
360. Battles over gentrification present another example of where alienability and the sttucture of entitlements disrupts established patterns of status relations, generally displacing relatively lower-status residents with relatively higher-status residents. Thus part of the anxiety suffered by displaced residents in gentrifying neighborhoods may have something to do with a consciousness of this particular kind of status-related displacement. That certainly seems to underscore some of the more heated rhetoric that abounds in these conflicts.
361. BENTHAM, supra note 27, at 111-12 (describing property as "established expectation")
362. Bell & Parchomovsky, supra note 28 (proposing a theory of property grounded in "stable ownership").
363. The literature on inalienability in legal scholarship has focused on concerns of efficiency (reducing externalities associated with allowing certain, kinds of transactions), distributional equity, and moral qualms about debasing the objects of property, among others. See Calabresi & Melamed, supra note 37, at 1111-15
364. Lee Anne Fennell, Adjusting Alienability, 122 HARV. L. REV. (forthcoming Mar. 2009) (manuscript at 7-9, on file with author)
365. Radin, supra note 51.
366. DOUGLAS & ISHERWOOD, supra note 5, at 140 ("Refusal to transact is such a common, if not worldwide, strategy of exclusion that we have been able to base a cross-cultural meaning for the notion of consumption.").
367. Kelo v. City of New London, 545 U.S. 469 (2005).
368. E.g., Lee Anne Fennell, Taking Eminent Domain Apart, 2004 MICH. ST. L. REV. 957, 962-67
369. see also Janice Nadler & Shari Seidman Diamond, Eminent Domain and the Psychology of Property Rights: Proposed Use, Subjective Attachment, and Taker Identity, 5 J. EMP. LEGAL STUD. 713 (2008) (offering experimental data on subjective valuation).
370. Cf. David A. Dana, Exclusionary Eminent Domain (Northwestern. Law & Econ. Research, Working Paper No. 08-06, May 6, 2008), available at http://ssrn.com/abstract=1129839 (exploring situations in which low-income residents displaced by eminent domain are unable to relocate in their former neighborhoods and arguing that eminent domain undercompensates in that situation, because an element of what condemnees value is their particular place).
371. Berman v. Parker, 348 U.S. 26 (1954). This case involved a challenge by two business owners to the District of Columbia's urban renewal program predicated on the argument that although the area of the District being condemned had many dilapidated structures, the challengers' business was "not slum housing." Id. at 31.
372. Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984) (involving a Public Use Clause challenge to the Hawaii Land Reform Act of 1967, which allowed the transfer of title from lessors to lessees).
373. See Eduardo Moises Peñalver & Sonia K. Katyal, Property Outlaws, 155 U. PA. L. REV. 1095, 1122-26 (2007).
374. See id. at 1132 ("[T]he centrality of property to the satisfaction of fundamental human needs . .. creates a strong impetus for those excluded from participation in the system of ownership to challenge both existing property rules and established property entitlements.").
375. Edward H. Rabin, The Revolution in Residential Landlord-Tenant Law: Causes and Consequences, 69 CORNELL L. REV. 517 (1984).
376. For discussion of the deep and varied symbolism of this tenure choice, see PERIN, supra note 247, at 32-80.
377. See DUKEMINIER ET AL., supra note 77, at 817 (collecting sources).
378. To choose to focus on the state role in status signaling is not to suggest lack of interest in the reality of material inequality or to argue that is it not vitally important for scholars to continue to explore that inequality. Rather, it is to suggest that that field is well occupied, both in the legal academy and beyond, and that what has been missing from the discourse at least in the legal literature is more focused examination of the symbolic overlay. One critique of this analysis could certainly be that isolating specific doctrinal examples risks obscuring the larger tendency of the basic system of private property to generate and reinforce inequality. Accordingly, one reaction to the link between status and property, pace Marx, would be to restructure radically the nature of private property. Eliminating underlying material inequality would hardly eliminate people's tendency to sort hierarchically and to signal that sorting, but there is no doubt that it would have some effect on current dynamics around property and status signaling. For such an. argument, see PAUL A. BARAN & PAUL M. SWEEZY, MONOPOLY CAPITAL: AN ESSAY ON THE AMERICAN ECONOMIC AND SOCIAL ORDER (1966)
379. cited in Jim. Peach. & William M. Dugger, An Intellectual History of Abundance, 40 J. ECON. ISSUES 693, 698 (2006).
380. However, beyond the infeasibility of such restructuring, and setting aside the libertarian objection, see ROBERT NOZICK, ANARCHY, STATE, AND UTOPIA 244-46 (1974), there are many reasons to believe that the negative consequences that seem inevitable with change of that magnitude are enough, to take the option, off the table for serious consideration. Accordingly, this Section proceeds with the assumption that any changes in law or society that might evince sensitivity to the negative consequences of status signaling through, property are going to be incremental and, perhaps, marginal in nature. That is not to undermine their potential significance, but rather to place any such changes in appropriate context.
381. E.g., McAdams, supra note 13, at 74 (proposing taxation of status goods as a preferable strategy over prohibition of status consumption).
382. E.g., MILL, supra note 91, at 869 (proposing a "tax on luxuries" that would target what "is expended on indulgences" that flow from seeking to satisfy the "opinion" of others)
383. see also Thomas D. Griffith, Progressive Taxation and Happiness, 45 B.C. L. REV. 1363, 1384-88, 1395-97 (2004) (discussing progressive taxation, as a tool to reduce the negative externalities associated with positional goods).
384. See Michael E. DeBow & Dwight R. Lee, Happiness and Public Policy: A Partial Dissent (or, Why a Department of Homeland Happiness Would be a Bad Idea), 22 J.L. & POL. 283, 289-90 (2006).
385. See supra note 169. Frank has proposed a progressive consumption tax, which he argues solves the problems associated with, taxes on expenditures.
386. FRANK, supra note 160, at 211-23. Even a consumption tax, however, risks merely reallocating incentives toward other status goods.
387. I am grateful to Lee Fennell for suggesting informational responses to the problems associated with status signaling through property.
388. Lior Jacob Strahilevitz, Reputation Nation: Law in an Era of Ubiquitous Personal Information, 102 NW. U. L. REV. 1667 (2008).
389. Cf. Eric A. Posner, Symbols, Signals, and Social Norms in Politics and the Law, 27 J. LEGAL STUD. 765, 789 (1998) (discussing law as a way to increase or decrease the cost of signaling).
390. See supra text accompanying notes 188-90.
391. FRANK, supra note 41, at 154-61.
392. Id. at 161-69.
393. This could also lead to a focus on the tangible aspects of status races through property. Some communities, for example, have begun to regulate disproportionate home sizes and renovations that take houses out of neighborhood context, see, e.g., Jessica Garrison. & Cara Mia DiMassa, Rules Limit Home Size, Hotel. Conversion in L.A., L.A. TIMES, May 7, 2008, at 1, and similar strategies are conceivable. This is a very direct way in which the visual impact of property can be regulated to moderate the status signals that property sends.
394. FRANK, supra note 160, at 199-200 (discussing historical laws restricting luxury-related expenditures and the tendency of such laws to generate "evasive" actions generally as costly as the avoided consumption).
395. See DE BOTTON, supra note 19, at 303 (discussing currents in philosophy, art, politics, religion, and bohemia that although not seeking to eliminate status hierarchy, have nonetheless sought "to institute new kinds of hierarchy based on sets of values unrecognized by, and critical of, those of the majority").
396. See Emily Beller & Michael Hout, Intergenerational Social Mobility: The United States in Comparative Perspective, FUTURE OF CHILDREN, Fall 2006, at 19.
397. Our cunent level of income inequality has not been seen, since the end of the Roaring Twenties-1928, the eve of the Great Depression, to be precise. Thomas Piketty & Emmanuel Saez, Income Inequality in the United States, 1913-1998, 118 Q.J. ECON. 1 (2003)
398. Lany M. Bartels, Inequalities, N. Y. TIMES, Apr. 27, 2008, at MM22 ("The past three decades have seen a momentous shift: The rich became vastly richer while working-class wages stagnated. Economists say that 80 percent of net income gains since 1980 went to people in the top 1 percent of the income distribution, boosting their share of total income to levels unseen since before the Great Depression.").
399. AKIKO BUSCH, THE UNCOMMON LIFE OF COMMON OBJECTS 15 (2005).