Virtue and rights in american property law

Cornell Law Review

Volumn 94, Issue 4, 2009, Pages 889-947

  Claeys, Eric K ^a  

^a GEORGE MASON UNIVERSITY   (United States)

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EID: 68949122322     PISSN: 00108847     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Note

References (296)

1. PLATO, THE REPUBLIC 372d4-5 [hereinafter REPUBLIC]; PLATO, THE REPUBLIC OF PLATO 49 (Allan Bloom trans., 2d ed. 1991) [hereinafter REPUBLIC (Bloom trans.)]. Bloom translates the Greek term hyôn as "sows"; "pigs" is a more common translation. For Socrates' sketch of the city of comfortable preservation, see REPUBLIC, supra, at 369b5-372d2; REPUBLIC (Bloom trans.), supra at 46-49.
2. See REPUBLIC, supra note 1, at 428e2-429a4; REPUBLIC (Bloom trans.), supra note 1, at 107.
3. See REPUBLIC, supra note 1, at 464b8-465e2; REPUBLIC (Bloom trans.), supra note 1, at 143-45.
4. Gregory S. Alexander, The Social-Obligation Norm in American Property Law, 94 CORNELL L. REV. 745 (2009).
5. Eduardo M. Peñalver, Land Virtues, 94 CORNELL L. REV. 821 (2009).
6. See Alexander, supra note 4, at 747-48, 750-51.
7. See Peñalver, supra note 5, at 832-60.
8. For one helpful overview, see Jules L. Coleman, The Grounds of Welfare, 112 YALE LJ. 1511, 1514-20 (2003) (reviewing LOUIS KAPLOW SC STEVEN SHAVELL, FAIRNESS VERSUS WELFARE (2002)). Throughout this Response, I assume that "economic analysis" integrates explanation, normative prescriptions, and underlying practical philosophy in a manner similar to that in which theories of practical philosophy do. That assumption may seem a category mistake to many readers, but it would be too distracting for me to question the assumption here.
9. Jody S. Kraus, Transparency and Determinacy in Common Law Adjudication: A Philosophical Defense of Explanatory Economic Analysis, 93 VA. L. REV. 287, 357 (2007).
10. For dissenting opinions, consider JULES L. COLEMAN, THE PRACTICE OF PRINCIPLE: IN DEFENCE OF A PRAGMATIST APPROACH TO LEGAL THEORY 1-63 (2001); STEPHEN A. SMITH, CONTRACT THEORY 14-31 (2004).
11. See Peñalver, supra note 5, at 860-86.
12. 2 WILLIAM BLACKSTONE, COMMENTARIES 8.
13. See Eric R. Claeys, Jefferson Meets Coase: Land-Use Torts, Law and Economics, and Natural Property Rights, 85 NOTRE DAME L. REV. (fordicoming 2010), manuscript at 3-4 (George Mason Univ. Sch. Law & Econ. Research Paper No. 08-20, 2008), available at http://ssrn. com/abstract=l 117999.
14. This response uses the term "practical philosophy" to describe philosophical inquiry studying human action and its proper ends and constraints. (For another example of this usage, see Stephen Buckle, Aristotle's Republic or, Why Aristotle's Ethics Is Not Virtue Ethics, 77 PHIL. 565, 575 (2002).) As used here, "practical philosophy" encompasses "ethical philosophy," the inquiry into individual human action, and "political philosophy," the inquiry into human action by groups organized into cities, nations, and other political communities. The term excludes conceptual philosophy and philosophical investigation into nonhuman phenomena. Most other forms of philosophy are devoted solely to understanding phenomena; practical philosophy makes primary the question of how humans ought to live and act. See ARISTOTLE, NICOMACHEAN ETHICS II.2, at 1103b26-32 [hereinafter NICOMACHEAN ETHICS]; ARISTOTLE, NICOMACHEAN ETHICS 23 (Joe Sachs trans., 2002) [hereinafter NICOMACHEAN ETHICS (Sachs trans.)].
15. "Moral" philosophy might be a more fitting term for the subject matter considered here. This Response will use "moral" when absolutely necessary to do so as a synonym for "applying a general metaethics and philosophical approach to a practical situation" but will avoid its use otherwise. Some scholars equate "moral" with "ethical" so that it excludes the "political." In addition, for many readers, the term "moral" presumes the "law conception of ethics" that G.E.M. Anscombe deplored and sought to overcome by the recovery of virtue ethics. G.E.M. Anscombe, Modern Moral Philosophy, 33 PHIL. 1, 5 (1958). In that light, the term "moral" has some built-in tendency in favor of deontological and against consequentialist theories of practical action.
16. See, e.g., Bernard Williams, Morality, The Peculiar Institution, in VIRTUE ETHICS 45, 48-49 (Roger Crisp & Michael Slote eds., 1997) (contrasting utilitarianism with deontology by calling the former "a marginal member of the morality system" and the latter the "central . . . version of morality").
17. Larry Alexander & Michael Moore, Deontological Ethics, in STANFORD ENCYCLOPEDIA OF PHILOSOPHY §2 (Winter 2007), http://plato.stanford.edu/archives/win2007/entries/ echics-deontological.
18. See id.; Roger Crisp & Michael Slote, Introduction, in VIRTUE ETHICS, supranote 14, at 1, 1-2; Robert B. Louden, Toward a Genealogy of Deontology,'34 J. HIST. PHIL. 571 (1996); Gregory Trianosky, What Is Virtue Ethics All About?, 27 AM. PHIL. Q 335, 338 (1990).
19. Alexander & Moore, supra note 15, §1. 18 Id.
20. See, e.g., ROSALIND HURSTHOUSE, ON VIRTUE ETHICS 37-38 (1999) (identifying "inadequacy in the slogan 'Utilitarianism begins with the Good, deontology with the Right' ") (emphasis added) ; Trianosky, supra note 16, at 335 (listing nine tenets of "neo-Kantianism" and warning that these tenets are "not necessarily Kant's own view" and are not always "uniformly understood or carefully distinguished by [their] adversaries").
21. Consider Michael S. Moore's usage in Michael S. Moore, Patrolling the Borders of Consequentialist fustifications: The Scope of Agent-Relative Restrictions, 27 LAW & PHIL. 35 passim (2007).
22. See IMMANUEL KANT, FOUNDATIONS OF THE METAPHYSICS OF MORALS 401, at 17 (Lewis White Beck trans., Macmillan Publ'g Co. 2d ed. 1990) (1785) ("Thus the moral worth of an action does not lie in the effect which is expected from it or in any principle of action which has to borrow its motive from this expected effect. For all these effects ... could be brought about through other causes and would not require the will of a rational being, while the highest and unconditional good can be found only in such a will."). Here and subsequendy, the first page citation refers to Kant's original pagination (which Beck provides in the margins), the second to the translation in the Beck edition.
23. Walter Sinnott-Armstrong, Consequentialism, in STANFORD ENCYCLOPEDIA OF PHILOSOPHY §§1, 3 (rev. ed. Spring 2006), http://plato.stanford.edu/entries/ consequentialism (citing JEREMY BENTHAM, AN INTRODUCTION TO THE PRINCIPLES OF MORALS AND LEGISLATION (1789); JOHN STUART MILL, UTILITARIANISM (1861); HENRY SIDGWICK, THE METHODS OF ETHICS (1874)); accord Justin Oakley, Varieties of Virtue Ethics, 9 RATIO 128, 143 (1996).
24. KAPLOW & SHAVELL, supra note 8; see also id. at 16-38; accord LIAM MURPHY & THOMAS NAGEL, THE MYTH OF OWNERSHIP 42 (2002) (assuming and applying the distinction between consequentialist and deontological theories of action).
25. And, more generally, the social science-versus-humanities divide.
26. See JOHN RAWLS, A THEORY OF JUSTICE 23-32 (1971).
27. See ROBERT NOZICK, ANARCHY, STATE, AND UTOPIA 28-33, 300-04 (1974).
28. See, e.g., ARTHUR RIPSTEIN, EQUALITY, RESPONSIBILITY, AND THE LAW 4 (1999); ERNEST J. WEINRIB, THE IDEA OF PRIVATE LAW 84-113 (1995).
29. KAPLOW & SHAVELL, supra note 8, at 43.
30. Id. at 44 (emphasis added).
31. Coleman, supra note 8, at 1512.
32. See, e.g., Oakley, supra note 22, at 128.
33. Anscombe, supra note 14.
34. Id. at 2.
35. ALASDAIR MACINTYRE, Hume on the 'Is' and the 'Ought, ' in AGAINST THE SELF-IMAGES OF THE AGE 109, 124 (Univ. Notre Dame Press, 2d prtg. 1984) (1971).
36. Michael Walzer, Liberalism and the Art of Separation, 12 POL. THEORY 315, 324 (1984).
37. Ingrid Creppell, Locke on Toleration: The Transformation of Constraint, 24 POL. THEORY 200, 201 (1996).
38. See BARBARA HERMAN, Making Room for Character, in MORAL LITERACY 1-28 (2007). For other defenses of deontological ediics, see BARBARA HERMAN, THE PRACTICE OF MORAL JUDGMENT (1993); ROBERT B. LOUDEN, KANT'S IMPURE ETHICS: FROM RATIONAL BEINGS TO HUMAN BEINCS (2000); ROBERT B. LOUDEN, MORALITY AND MORAL THEORY: A REAPPRAISAL AND REAFFIRMATION (1992); J.B. Schneewind, The Misfortunes of Virtue, 101 ETHICS 42 (1990).
39. See Buckle, supra note 14, at 566-67 (conceding that Kant treats the virtues); Mardia C. Nussbaum, Virtue Ethics: A Misleading Category?, 3 J. ETHICS 163, 165, 170 (1999) (same); id. at 170 (same for Rawls).
40. KANT, supra note 21, at 422, 38.
41. ARISTOTLE, POLITICS III.6, at 1278b28-30 [hereinafter POLITICS]; ARISTOTLE, THE POLITICS 94 (Carnes Lord trans., Univ. of Chicago Press 1984) [hereinafter POLITICS (Lord trans.)].
42. See Trianosky, supra note 16, at 339 (complaining that "the Kantian tradition does take morality to be autonomous in the extreme"); accord Nussbaum, supra note 38, at 173 ("[I]f emotions are just subrational stirrings or pushes that have nothing to do with drought or intentionality, there is not much that is interesting to be said about their relationship to ethics. They can be fed or starved, but they cannot be cultivated as parts of a character that has a unitary focus.").
43. RICHARD A. EPSTEIN, PRINCIPLES FOR A FREE SOCIETY: RECONCILING INDIVIDUAL LIBERTY WITH THE COMMON GOOD 15 (1998).
44. Richard A. Epstein, Intellectual Property: Old Boundaries and New Frontiers, 76 IND. LJ. 803, 805-06 (2001).
45. Alexander & Moore, supra note 15, §4. 45 Id.
46. JAMES GORDLEY, FOUNDATIONS OF PRIVATE LAW: PROPERTY, TORT, CONTRACT, UNJUST ENRICHMENT 11 (2006).
47. Id. at 11-12 (quoting SMITH, supra note 10, at 52 n.16).
48. KAPLOW & SHAVELL, supra note 8, at 52.
49. See id. at 62-81 (recasting fairness-based norms as utilitarian social norms).
50. Id. at 58. For a lengdiier critique of Kaplow and Shavell's argument, suggesting that the argument is analytically tautological, see Coleman, supra note 8, at 1525-30.
51. KAPLOW & SHAVELL, supra note 8, at 52 n.72 (citing J.J.C. Smart, Introduction, in J.J.C. SMART & BERNARD WILLIAMS, UTILITARIANISM: FOR AND AGAINST 5 (1973)).
52. See MARGARET JANE RADIN, R EINTERPRETING PROPERTY 108-09 (1993). Until roughly 1985, Epstein was more properly classified as a deontologist. Compare Larry Alexander & Maimón Schwarzschild, TAe Uncertain Relationship Between Libertarianism and Utilitarianism, 19 QUINNIPIAC L. REV. 657 (2000) (critiquing Epstein's current metaethics), with Richard A. Epstein, 7'Ae Uneasy Marriage of Utilitarian and Libertarian Thought, 19 QUINNIPIAC L. REV. 783, 787-90 (2000) (clarifying his utilitarian theory and defending them from Alexander and Schwarzschild's critique). Unless the text (as here) indicates otherwise, when I refer to Epstein, I mean the utilitarian Epstein.
53. Adverse possession illustrates the deontology trap even if the deontological claim right runs the other way. Assume the squatter's claim to ownership is grounded in a deontological labor-desert right to control and enjoy land he is actually using. That deontological right might then come under pressure from consequentialist considerations about the utility of clear land titles. Among other tilings, clear titles reduce disputes over land and land use, and they simplify commercial land transactions. As in the text, as soon as the consequentialist considerations outweigh the deontological right, the philosophical justification of adverse possession seems weak or incoherent. See RADIN, supra note 52, at 107-09.
54. Id. at 109.
55. Id.
56. Julia Annas, Virtue Ethics, in THE OXFORD HANDBOOK OF ETHICAL THEORY 515 (David Copp ed., 2005).
57. Or, more specifically, the tradition of political philosophy corresponding to the tradition of ethical philosophy to which Annas is referring. See infra part II.
58. See, e.g., GORDLEY, supra note 46, at 148-54 (recounting influence of Aquinas and Scholastic conceptions of use on subsequent property law). See generally STEPHEN BUCKLE, NATURAL LAW AND THE THEORY OF PROPERTY: GROTIUS TO HUME (1991) (tracing the development of property rights in early Enlightenment natural-law and -rights theories).
59. For other reference guides, see Rosalind Hursthouse, Virtue Ethics, in STANFORD ENCYCLOPEDIA OF PHILOSOPHY (rev. ed. Fall 2007), http://plato.stanford.edu/archives/fall 2007/entries/ethics-virtue/; Oakley, supra note 22, at 132-34; Lawrence B. Solum, Natural Justice, 51 AM. J. JURIS. 65, 71 (2006).
60. HURSTHOUSE, supra note 19, at 1.
61. Peñalver, supra note 5, at 864.
62. See Alexander, supra note 4, at 748.
63. See NICOMACHEAN ETHICS, supra note 14, 1.4, at 1095al6; NICOMACHEAN ETHICS (Sachs trans.), supra note 14, at 3.
64. Hursdiouse, supra note 59, §2. See also id. ("The trouble with 'happiness', on any contemporary understanding of it uninfluenced by classically trained writers, is that it connotes somediing which is subjectively determined.").
65. HURSTHOUSE, supra note 19, at 4. I am grateful to Nelson Lund for encouraging me to make this clarification.
66. Buckle, supra note 14, at 565; see also Crisp & Slote, supra note 16, at 2-3 (arguing that virtue etiiicists "carve out [their] own niche [by making] essential reference to the rationality of virtue itself"); Robert B. Louden, On Some Vices of Virtue Ethics, ¿LAQUO;VIRTUE ETHICS, supra note 14, at 201, 204, 216 (contrasting a "mononomic" understanding of virtue ethics with one that "coordinate [s] irreducible or strong notions of virtue" along with strong conceptions of act-focused ethical theories); Nussbaum, supranote 38, at 165, 168 (assuming that deontologists and consequentialists may both draw on virtue ediics).
67. See, e.g., PHILIPPA FOOT, Virtues and Vices, ¿re VIRTUES AND VICES AND OTHER ESSAYS IN MORAL PHILOSOPHY 1,1-2 (2d ed., Oxford Univ. Press 2002) (1978) (arguing that Aristotle and St. Thomas Aquinas are foundational).
68. See PETER PHILLIPS SIMPSON, VICES, VIRTUES, AND CONSEQUENCES: ESSAYS IN MORAL AND POLITICAL PHILOSOPHY 93 (2001) (contrasting "neo-Aristotelians" who emphasize the "Aristotelian" with tiiose who emphasize the "neo").
69. See SIMON BLACKBURN, THE OXFORD DICTIONARY OF PHILOSOPHY 304 (1996) [hereinafter OXFORD DICTIONARY OF PHILOSOPHY] .
70. See Richard Parry, Ancient Ethical Theory, in STANFORD ENCYCLOPEDIA OF PHILOSOPHY §1 (Fall 2004), http://plato.stanford.edu/archives/fall2004/entries/ediics-ancient/.
71. See Hursthouse, supra note 59.
72. See, e.g., Ben Bradley, Virtue Consequentialism, 17 UTILITAS 282, 282-83 (2005).
73. See OXFORD DICTIONARY OF PHILOSOPHY, supra note 69, at 394.
74. NICOMACHEAN ETHICS, supra note 14, 1.7, at 1098al6-18; NICOMACHEAN ETHICS (Sachs trans.), supra note 14, at 12; accord Crisp & Slote, supra note 16, at 2 (describing Aristotie as having "perhaps one of the most radical virtue ediics ever, since he can be understood to be saying that there is reo¿A¿reg-wortíi having in life except the exercise of the virtues").
75. See JONATHAN LEAR, ARISTOTLE: THE DESIRE TO UNDERSTAND 154-55 (1988) ("The aim of the Nicomachean Ethics is to give one a reflective understanding of how one can achieve happiness by living an ethical life within society") (citing NICOMACHEAN ETHICS, supra note 14, 1.2, at 1094al8-25) (emphasis added)); accord JULIA DRIVER, UNEASY VIRTUE 70 (2001).
76. See, e.g., Fred D. Miller Jr., Property Rights in Aristotle, in ARISTOTLE'S POLITICS: CRITICAL ESSAYS 121, 125 (Richard Kraut & Steven Skultety eds., 2005) (quoting ARISTOTLE, RHETORIC 1360bl4-17); accord OXFORD DICTIONARY OF PHILOSOPHY, supra note 69, at 127 (suggesting that it is possible to understand virtue ediics in such a manner that the "equation between acting virtuously and flourishing is broken").
77. See Oakley, supra note 22, at 138-39.
78. See NICOMACHEAN ETHICS, supra note 14, I.8-.9, at 1099al3-17, 1099b25-28; NICOMACHEAN ETHICS (Sachs trans.), supra note 14, at 14, 15.
79. LEAR, supra note 75, at 164.
80. ALASDAIR MACINTYRE, AFTER VIRTUE 191 (2d ed. 1984) (emphasis removed); see also id. at 184 (defining an "internal" means to a human end as one in which "the end cannot be adequately characterized independendy of a characterization of the means").
81. Id. at 196.
82. See, e.g., Bernard H. Baumrin, Aristotle's Ethical Intuitionism, 42 THE NEW SCHOLASTICISM 1, 5,12 (1967) (classifying Aristode as a deontologist, while defining "deontologist" to refer to any nonconsequentialist theory); Nussbaum, supra note 38, at 168-69 (suggesting that virtue ethics consists of anti-utilitarians and anti-Kantians).
83. BUCKLE, supra note 58, at 70, 71.
84. Oakley, supra note 22, at 133.
85. See, e.g., Smart, supra note 51, at 9-12, 30-57 (describing act-utilitarian theory).
86. See Sinnott-Armstrong, supra note 22, §§(discussing the hedonism inherent in classic utilitarianism).
87. 2 SAMUEL PUFENDORF, DE JURE NATURAE ET GENTIUM LIBRI OCTO II.3.10, at 195 (CH. Oldfather & W.A. Oldfather trans., Clarendon Press 1934) (1688).
88. See BUCKLE, supra note 58, at 68 (citing 2 PUFENDORF, supra note 87, II.3.10, at 195).
89. See Nussbaum, supra note 38, at 168 (noting that many virtue theorists "question" utilitiarianism's "narrowly technical conception of reason").
90. See id. at 182.
91. ROBERT P. GEORGE, MAKING MEN MORAL: CIVIL LIBERTIES AND PUBLIC MORALITY 13 (1993).
92. E.g., Crisp & Slote, supra note 16, at 3; Louden, supra note 66, at 205; see, e.g., Buckle, supra note 14, at 569 & n.12.
93. See Daniel Statman, Introduction to Virtue Ethics, in VIRTUE ETHICS: A CRITICAL READER 3, 3-5 (Daniel Statman ed., 1997) (explaining why standard utilitarianism presumes a moral duty to act independent of agent-relative considerations); see also Alexander & Moore, supra note 15, §2.1 (defining "agent-centered" and "agent-relative").
94. Oakley, supra note 22, at 131.
95. Id. at 133.
96. Id. at 144.
97. Id. at 143-44.
98. See 2 PUFENDORF, supra note 87,1.2.4, at 24.
99. See id. 11.3.10, at 196.
100. BUCKLE, supra note 58, at 67.
101. 2 PUFENDORF, supra note 87, II.3.10, at 195.
102. See BUCKLE, supra note 58, at 62-74.
103. James Griffin, Virtue Ethics and Environs, 18 Soc. PHIL. & POL'Y 56, 63 (1998).
104. See id. at 60-61.
105. Sinnott-Armstrong, supra note 22, §3.
106. THOMAS HURKA, PERFECTIONISM 60 (1993); see id. at 55-60.
107. Larry Alexander, Pursuing the Good-Indirectly, 95 ETHICS 315, 329 (1985).
108. Hurka acknowledges this argument in HURKA, supra note 106, at 59.
109. See, e.g., HURSTHOUSE, supra note 19, at 120 (acknowledging the possibility that one can "add on an Aristotelian account of the emotions" to a Kantian account of deontic obligations).
110. One could develop an aretaic justification of property rights, and some have done so. See, e.g., Miller, supra note 76, at 124-26. Such justifications are so foreign to modern conceptual categories, however, that it would be distracting to rely on them as part of what is meant to be a meat-and-potatoes example relevant in contemporary law. I use Pufendorf as a substitute because he writes early enough to be close to the metheval tradition, in which virtue was a dominant category in political thought, but also late enough to speak in modern accents regarding natural rights. See infra note 167 and sources cited therein.
111. See 2 PUFENDORF, supra note 87, IV.3.1, at 524.
112. BUCKLE, supra note 58, at 92.
113. See 2 PUFENDORF, supra note 87, IV.4.2, at 532; accord BUCKLE, supra note 58, at 96-97.
114. See 2 PUFENDORF, supra note 87, IV.4.6, at 539-40.
115. See id.; accord BUCKLE, supra note 58, at 100-01.
116. See 2 PUFENDORF, supra note 87, IV.4.6, at 539-40; accord BUCKLE, supra note 58, at 102-03.
117. See 2 PUFENDORF, supra note 87, IV.3.6, at 531; accord BUCKLE, supra note 58, at 92 & n.148.
118. WEINRIB, supra note 27, at 176.
119. In facque v. Sternberg Homes, Inc., for example, a mobile-home company trespassed across the vacant and unused field of a retired couple to deliver a mobile-home on time when the public road was blocked by snow. Steenberg Homes was making productive use of the field, the Jacques were not, and the crossing caused the Jacques no actual harm. Yet the Jacques were entitled to a trespass cause of action and $100,000 in punitive damages. 563 N.W.2d 154 (Wis. 1997). The holding reinforced an exclusionary regime, but the facts seem to justify an exception respecting Steenberg Homes's harmless and productive use of the Jacques' exclusionary right.
120. See 2 PUFENDORF, supra note 87,1.2.4, at 24. This is a fact that James Gordley overlooks. Gordley explains adverse possession on the ground that "when an owner does not intend to put property to productive use, he does not have ownership in its true sense." GORDLEY, supra note 46, at 144. To make this explanation satisfying, Gordley must explain why trespass law at its core endows owners with ownership of land they have not yet used.
121. l21 Cf. Carol M. Rose, Possession as the Origin of Property, 52 U. CHI. L. REV. 73, 81-82 (1985) (justifying the same result in economic utilitarian terms).
122. See, e.g., Golden Press, Inc. v. Rylands, 235 P.2d 592, 595 (Colo. 1951) (suggesting that, when a court considers whether to refrain from entering an injunction ordering the removal of a trespassory encroachment, it should enter the injunction if the trespasser encroached in bad faith, irrespective of the balance of hardships); Jacque v. Steenberg Homes, Inc., 563 N.W.2d at 157-58,163-66 (upholding a $100,000 punitive damage award
123. against a bad-faidi trespasser even though the trespass caused no physical damage to the owner's property and allowed the trespasser to complete a contract that a severe blizzard would otterwise have made impossible to perform).
124. In this regard virtue theories may help respond to a challenge issued by Jules Coleman: to understand bodi utilitarian welfare and deontic claims of justice and fairness in light of more fundamental human interests:
125. Once we realize that welfare is connected to a person's interests-what is good for him, and not merely to what he desires or to his gratification or joy-it should be clear that whatever it is in that account that explains the value of welfare explains as well the importance of the law's regulating human affairs according to various principles of justice and fairness. Coleman, supra note 8, at 1543.
126. See RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW 78-79 (7th ed. 2007). I use Posner's justification of adverse possession as a point of contact not with economic analysis generally but rather with act-utilitarian modes of justification. Economic analysis, conducted differently with proper regard for informational and act-specific limitations, avoids many of these problems. I understand this to be an important point of Henry E. Smith's contribution to this theme Issue, see Henry E. Smidi, Mind the Gap: The Indirect Relation Between Ends and Means in American Property Law, 94 CORNELL L. REV. 959 (2009).
127. See POSNER, supra note 124, at 31-32 (discussing the "dynamic" influences of property law on ownership and investment). 126 Peñalver, supra note 5, at 832-60. 127 Id. at 861.
128. Id. at 863 (emphasis removed).
129. Specifically, the title owner's right to be free from trespassory invasions seems the product of a formal rule justified by universal prescriptions made by Kantian deontology. Non-Kantian deontological approaches might take a more nuanced approach than the "deontological" approach assumed in text. Among othet tilings, deontological approaches might establish a series of priorities for different relevant norms (for the use of land, for the formal control of unused but still-owned land, and so forth), which might generate a series of rules of decision.
130. For criticisms, see Louden, supra note 66; Christopher W. Gowans, Virtue and Nature, 25 Soc. PHIL & POL'Y 28, 29 (2008); Statman, supra note 93, §5, at 18-22.
131. See, e.g., BUCKLE, supra note 58, at 70 n.61 (explaining why "[n]atural law theories are . . . essentially non-Kantian," in large part because "psychological intelligibility is ... a non-accidental feature" of such theories).
132. Alexander, supra note 4, at 747.
133. See Eric R. Claeys, Property 101: Is Property a Thing or a Bundle?, 32 SEATTLE U.L. REV. 617 (2009) (reviewing THOMAS W. MERRILL & HENRY E. SMITH, PROPERTY: PRINCIPLES AND POLICIES (2007)) (critiquing the right to exclude conception in favor of a conception of an exclusive right to determine the use of property); Larissa Katz, Exclusion and Exclusivity in Property Law, 58 U. TORONTO LJ. 275 (2008) (proposing an exclusive right of agenda-setting); Adam Mossoff, Wliat Is Property? Putting the Pieces Back Together, 45 ARIZ. L. REV. 371 (2003) (proposing an exclusive right of use).
134. See Alexander, supra note 4, at 747. 1S5 See id. at 748.
135. See Peñalver, supra note 5, at 826.
136. See Smith, supra note 124.
137. See infra Part V.C.
138. See Smith, supra note 124, at 967.
139. HURSTHOUSE, supra note 19, at 5. Hursthouse dtnks that the topic of justice, personal and political, is not only contested but also "corrupted." See id.; see also Rosalind Hursthouse, Virtue Ethics, STANFORD ENCYCLOPEDIA OF PHILOSOPHY §4 (rev. ed. Fall 2007), http://plato.stanford.edu/ archives/fall2007/entries/ettics-virtue ("Although Plato and Aristotie can be great inspirations as far as [virtue ethics are] concerned, neither, on the face of it, are attractive sources of insight where politics is concerned.").
140. See Alexander, supra note 4, at 751 n.13.
141. See MARTHA C. NUSSBAUM, WOMEN AND HUMAN DEVELOPMENT: THE CAPABILITIES APPROACH 7-8 (2000) (arguing for "a form of political liberalism in connection with the capabilities idea").
142. See John Lewis, Giving Way: Martha Nussbaum and the Morality of Privation, 8 U. CHI. L. SCH. ROUNDTABLE 215, 216, 217 (2001) (reviewing NUSSBAUM, supra note 142) (complaining that Nussbaum "seems to assume that every moral good should become a constitutional guarantee").
143. See Fred D. Miller, Jr., Virtue and Rights in Aristotle's Best Regime, in VALUES AND VIRTUES: ARISTOTELIANISM IN CONTEMPORARY ETHICS 67 (Timothy Chappell ed., 2006).
144. Id. at 67.
145. Crisp & Slote, supra note 16, at 25.
146. Gregory S. Alexander, The Complex Core of Property, 94 CORNELL L. REV. 1063 ( 2009), at 1068.
147. "The laws seem to be the works of the political art." NICOMACHEAN ETHICS, supra note 14, X.9, at 1181a23; NICOMACHEAN ETHICS (Sachs trans.), supra note 14, at 200.
148. Peñalver, supra note 5, at n.168; accord Alexander, supra note 4, at 760-61.
149. Although I cite Aristotle heavily in this Part and the next, I am not prepared to suggest that I am interpreting Aristotle accurately on all the points covered in this Response. It suffices for my argument that Aristotle makes a number of observations and normative prescriptions about the relations between law and politics and that these observations are so sensible that they should be considered in complete analyses of virtue politics.
150. NICOMACHEAN ETHICS, supra note 14, X.9, at 1181b20-22; NICOMACHEAN ETHICS (Sachs trans.), supra note 14, at 200. Sachs uses "constitution" though I prefer "political regime."
151. See POLITICS, supra note 40, VIII, at 1337a-42b; POLITICS (Lord trans.), supra note 40, at 229-41.
152. NICOMACHEAN ETHICS, supra note 14, II.2, at 1103b27-29; NICOMACHEAN ETHICS (Sachs trans.), supra note 14, at 23.
153. See NICOMACHEAN ETHICS, supra note 14, X.9, 1179bl0; NICOMACHEAN ETHICS (Sachs trans.), supra note 14, at 196.
154. See NICOMACHEAN ETHICS, supranote 14, X.9, at 1179a33-80al4; NICOMACHEAN ETHICS (Sachs trans.), supra note 14, at 196-97.
155. At least, as long as he does not violate any laws in the process.
156. See POLITICS, supra note 40,1.1, at 1252al-6; POLITICS (Lord trans.), supra note 40, at 35.
157. JOHN FINNIS, NATURAL LAW AND NATURAL RIGHTS 217 (1980); see GEORGE, supranote 91, at 95-96, 155-57; accord U.S. CATHOLIC CONFERENCE, CATECHISM OF THE CATHOLIC CHURCH §§2351-57, at 564-66 (1994) (specifying moral offenses against chastity).
158. See U.S. CATHOLIC CONFERENCE, supra note 158, §2284, at 550.
159. "[T]he existence of somedtng called 'obscenity' is still a long and painful step from agreement on a workable definition of the term." Paris Adult Theatre I v. Slaton, 413 U.S. 49, 79 (1973) (Brennan, J., dissenting).
160. Katrina M. Wyman describes this view without embracing it herself in her Response in this Issue, Katrina M. Wyman, Should Property Scholars Embrace Virtue Ethics? A Skeptical Comment, 94 CORNELL L. REV. 991, 1002-04 (2009).
161. GEORGE, supra note 91, at 25-26. For an excellent analysis of Aristotle's analysis of this issue, see Buckle, supra note 14.
162. See Alexander, supra note 147, at 1068.
163. Cf. MACINTYRE, supra note 80, at 205 ("[A] virtue is not a disposition that makes for success only in some one particular type of situation. What are spoken of as the virtues of a good committee man or of a good administrator or of a gambler or a pool husder are professional skills professionally deployed in ttose situations where they can be effective, not virtues.").
164. See Alexander, supra note 4, at 747 (citing Duncan Kennedy, Form and Substance in Private Law Adjudication, 89 HARV. L. REV. 1685, 1737 (1976)).
165. See supra notes 110-16 and accompanying text.
166. This section and the next will explain the basic issues in the political-theory terms in which virtue-friendly early Enlightenment political philosophers portrayed ttose terms. To appreciate the issues fully, one would also need a sound appreciation of the history of the same period, and specifically the full range of historical forces that caused metheval law, which applied natural-law principles, to evolve into modern law, which drew on natural rights. For two excellent starts into that topic, see BRIAN TIERNEY, THE IDEA OF NATURAL RIGHTS (1997); Benjamin Straumann, Is Modern Liberty Ancient? Roman Remethes and Natural Rights in Hugo Grotius's Early Works on Natural Law, 27 LAW & HIST. REV. 55 (2009).
167. Indeed, Professor Alexander deserves pride of place in this project. See GREGORY S. ALEXANDER, COMMODITY & PROPRIETY: COMPETING VISIONS OF PROPERTY IN AMERICAN LEGAL THOUGHT, 1776-1970 (1997); James W. EIy, Jr., Book Review, 43 AM. J. JURIS. 227 (1998) (reviewing ALEXANDER, supra).
168. See Alexander, supra note 4, at 748. 170 See Peñalver, supra note 5, at 877-86.
169. See supra notes 35-36 and accompanying text.
170. Christopher J. Berry, Adam Smith and the Virtues of Commerce, in NOMOS XXXIV: VIRTUE 69, 69 (1992); see CHRISTOPHER J. BERRY, THE IDEA OF A DEMOCRATIC COMMUNITY (1989).
171. DAVID HUME, AN ENQUIRY CONCERNING THE PRINCIPLES OF MORALS III.t, at 25-26 (Open Court Publishing Co. 1966) (1777).
172. Charles Larmore, 7'Ae Limits of Aristotelian Ethics, in NOMOS XXXIV: VIRTUE, supra note 172, at 185, 192; see CHARLES E. LARMORE, PATTERNS OF MORAL COMPLEXITY (1987).
173. MACINTYRE, supra note 80, at 195.
174. GEORGE, supra note 91, at 38.
175. See Peñalver, supra note 5, at 887 n.260 (citing MACINTYRE, supra note 80); id. at 873-74 & n.207 (citing GEORGE, supra note 91).
176. Within the context of a polis and an ethical theory intended to accompany it, the strategy of pointing to a phronimos makes a certain sense. However, to divorce this strategy from its social and economic roots and to then apply it to a very different sort of community-one where people really do not know each othet all that well, and where there is wide disagreement on values-does not [make sense]. Louden, supra note 66, at 213.
177. See POLITICS, supra note 40, VII.4, at 1326a25-27; POLITICS (Lord trans.), supranote 40, at 204.
178. See POLITICS, supra note 40, 1.2, at 1252a24-53a39; POLITICS (Lord trans.), supra note 40, at 35-38.
179. See POLITICS, supra note 40, 1.2, at 1252a24-1253a39; POLITICS (Lord trans.), supra note 40, at 35-38.
180. See POLITICS, supra note 40, VII.8, at 1328bll-13; POLITICS (Lord trans.), supra note 40, at 210 (proposing to make the priesdy offices simultaneously fifth and first in priority in the well-ordered city).
181. Thomas G. West, Introduction to FOUR TEXTS ON SOCRATES 9,15 (Thomas G. West & Grace Starry West trans., rev. ed. 1998) (commenting on Plato's dialogue Euthyphro).
182. See, e.g., Matthew 28:18-20. The same can be said of the othet major monotteistic revealed religions; it just so happens that Christianity has been the most influential of these religions in the Western world.
183. See POLITICS, supra note 40, 1.2, at 1253a35-36; POLITICS (Lord trans.), supra note 40, at 38.
184. Philip Verwimp, Development Ideology, the Peasantry, and Genocide: Rwanda Repesented in Habyarimana's Speeches, 2 J. GENOCIDE RES. 325, 326 (2000).
185. Id. at 325 (quoting Major-General Juvenal Habyarimana, Message of the Head of State (May 1, 1974)).
186. See supra note 147 and accompanying text.
187. See Harry V. Jaffa, Aristotle, in HISTORY OF POLITICAL PHILOSOPHY 64, 65-67 (Leo Strauss & Joseph Cropsey eds., 2d ed. 1972). But see Miller, supra note 144 (reading Aris-
188. tode's political theory to be at least somewhat compatible with some theories of rights); supra notes 165-66 and accompanying text.
189. Larmore, supra note 174, at 195.
190. I have explained why the claims made about Locke in the following paragraphs interpret Locke faittfully in Eric R. Claeys, TAe Private Society
191. See JOHN LOCKE, ESSAY CONCERNING HUMAN UNDERSTANDING 11.21.55, at 269 (Peter H. Nidditch ed., 1979) (criticizing "the [p]hilosophers of old" for "in vain enquiring], whether Summum bonum consisted in Riches, or bodily Delights, or Virtue, or Contemplation: And they might have as reasonably disputed, whether the best Relish were to be found in Apples, Plumbs, or Nuts; and have divided themselves into Sects upon it"); PETER C. MYERS, OUR ONLY STAR AND COMPASS: LOCKE AND THE STRUGGLE FOR POLITICAL RATIONALITY 123 (1998) ("[Locke] does not see in [natural human sociality] a natural inclination toward lawfulness or virtue.").
192. See, e.g., JOHN COLMAN, JOHN LOCKE'S MORAL PHILOSOPHY 195-96 (1983) (both describing Locke's political philosophy as having hedonistic foundations); MYERS, supra note 192, at 137-72; Nomi M. Stolzenberg & Gideon Yaffe, Waldron's Locke and Locke's WaIdron: A Review offeremy Waldron's God, Locke, and Equality, 49 INQUIRY 186,197-202 (2006) (reviewing WALDRON, infra, and reading Locke to be a utilitarian) ; Thomas G. West, Nature and Happiness in Locke (Unabridged) (2004), http://www.claremont.org/publications/ pubid.659/pub-detail.asp (book review) (arguing that Locke is a eudaimonistic consequentialist) . Contra JEREMY WALDRON, GOD, LOCKE, AND EQUALITY: CHRISTIAN FOUNDATIONS OF JOHN LOCKE'S POLITICAL THOUGHT 82,102, 225 (2002) (reading Locke to be a deontologist and a divine-command theorist) ; Peter Laslett, Introduction to LOCKE, TWO TREATISES OF GOVERNMENT 3, 81-82 (Peter Laslett ed., Cambridge Univ. Press 1988) (1690) [hereinafter "Two TREATISES"] ("Locke's ethical statements . . . point in many directions at the same time.").
193. See supra notes 105-06 and accompanying text.
194. See, e.g., Robert A. Goldwin, John Locke, in HISTORY OF POLITICAL PHILOSOPHY 476, 476-510 (Leo Strauss & Joseph Cropsey eds., 3d ed. 1987). Locke considers the possibility that "some one good and excellent Man, having got a Preheminency amongst the rest, had this Deference paid to his Goodness and Vertue . . . that the chief Rule ... by a tacit Consent devolved" into absolute monarchy. Two TREATISES, supra note 193,11.94, at 329. In context, however, this example confirms Locke's overall reserve toward virtue understood as an open-ended goal of political life. Virtue is part of the monarchical political system Locke seeks to displace. Similarly, Locke acknowledges that "Age or Virtue may give men a just Precedency" over their peers-but not to the point that the former may claim the power to rule the latter wittout their consent. Id. 11.54, at 304.
195. LOCKE, supra note 192, 11.21.51, at 266.
196. JOHN LOCKE, Some Thoughts Concerning Education, in SOME THOUGHTS CONCERNING EDUCATION AND OF THE CONDUCT OF THE UNDERSTANDING §33, at 25 (Ruth W. Grant & Nathan Tarcov eds., 1996) (1693).
197. See JOHN LOCKE, THE REASONABLENESS OF CHRISTIANITY 55 241-45, at 169-85 (George W. Ewing ed., 1965) (1695).
198. JOHN LOCKE, A LETTER CONCERNING TOLERATION 18 (London, Awnsham Churchill 1689).
199. JOHN LOCKE, Epistola de Tolerantia: A Letter Concerning Toleration 122 (Raymond Klibanskyed.,J.W. Gough trans., 1968) (1689).
200. LOCKE, supra note 199, at 40-41.
201. See LOCKE, supra note 193, 11.34, at 291.
202. See supra notes 158-60 and accompanying text; see also Claeys, supra note 191, at 223-24.
203. Michael P. Zuckert, On Constitutional Welfare Liberalism: An Old-Liberal Perspective, 24 Soc. PHIL. & POL'Y 266, 270 (2007).
204. LOCKE, supra note 193, II.5, at 303-320.
205. I BLACKSTONE, supra note 12, at *123.
206. id. at *124.
207. Id.
208. id. at *8.
209. See, e.g., MARK WARREN BAILEY, GUARDIANS OF THE MORAL ORDER: THE LEGAL PHILOSOPHY OF THE SUPREME COURT, 1860-1910, at 24-84 (2004) (describing the standard catechism of law, ethics, politics, and theology learned by college students in the second quarter of the nineteenth century at leading liberal arts colleges).
210. See, e.g., THE FEDERALIST NO. 10, at 77, 79 (James Madison) (Clinton Rossiter ed., 1961) (suggesting that "the latent causes of faction are .. . sown in the nature of man" and include "zeal for different opinions concerning religion, concerning government, and many other points, as well of speculation as of practice," "an attachment to different leaders," and "the verious [sic] and unequal distribution of property").
211. THE FEDERALIST NO. 51 (James Madison), supra note 211, at 320, 324 (explaining how the American political order secures civil rights widi "the multiplicity of interests" and religious rights with "the multiplicity of sects").
212. VA. DECLARATION OF RIGHTSart. I (June 12, 1776).
213. Id. art. XV (June 12, 1776).
214. See, e.g., MASS. CONST, of 1780, Declaration of Rights, art. 3 (stating that "the happiness of a people, and the good order and preservation of civil government, essentially depend upon piety, religion and morality"); Northwest Ordinance art. 3 (1787) (assuming "[r]eligion, morality, and knowledge [to be] necessary to good government and the happiness of mankind").
215. See generally Carol M. Rose, Property as the Keystone Right?, 71 NOTRE DAME L. REV. 329 (1996).
216. THE FEDERALIST NO. 10, supra note 211, at 78. But see The FEDERALIST NO. 3 (John Jay), supra note 211, at 44, 45 (describing public safety as the first object of government).
217. See BUCKLE, supra note 58, at 124; Paul A. Rahe, TAe Political Needs of a Toolmaking Animal: Madison, Hamilton, Locke, and the Question of Property, 22 Soc. PHIL. & POL'Y 1 (2005).
218. See, e.g., MACINTYRE, supra note 80.
219. See, e.g., ANDREW KOPPELMAN, ANTIDISCRIMINATION LAW AND SOCIAL EQUALITY (1996) (examining racism and stigmatization in both governmental and nongovernmental contexts).
220. See Claeys, supra note 191, at 224-30.
221. See POLITICS, supra note 40, II.8, at 1268b22-1269a28; POLITICS (Lord trans.), supra note 40, at 72-73.
222. See 3 BLACKSTONE, supra note 12, at *212-13. Blackstone justified these laws on the ground that they inculcated charity, specifically as understood in the Mosaical law.
223. See id. at *213; accord Leviticus 23:22; Ruth 2:2.
224. See, e.g., Bennis v. Michigan, 516 U.S. 442 (1996) (rejecting a due process challenge by a wife to block a forfeiture proceeding against a car, co-owned widi her husband and used by the husband to solicit a prostitute, even though the wife did not audiorize or even know how her husband was using the car).
225. See supra notes 163-64 and accompanying text.
226. Alexander, supra note 4, at 746.
227. See id. at 747.
228. See Alexander, supra note 147, at 754-55.
229. Alexander, supra note 4, at 774.
230. Id.
231. Id. at 779-82.
232. See, e.g., Estancias Dallas Corp. v. Schulte, 500 S.W.2d 217, 219 (Tex. App. 1973).
233. See id. at 221-22 (suggesting that the court would deny the injunction only if the polluter could satisfy a " 'stern rule of necessity rather than on the right of the [polluter] to work a hurt, or injury to his neighbor'" (quoting Storey v. Cent. Hide & Rendering Co., 226 S.W.2d 615, 619 (Tex. 1950))); Quinn v. Am. Spiral Spring & Mfg. Co., 141 A. 855, 857, 858 (Pa. 1928) (holding that the defendant must move equipment in its iron and steel plant in order to minimize damage to a neighbor's house and providing for an injunction if the defendant could not comply).
234. See, e.g., Boomer v. Ad. Cement Co., 257 N.E.2d 870, 873, n.* (NY. 1970) (noting the number of employees and the amount invested in a cement plant before declining to permanendy enjoin the plant as a nuisance); Madison v. Ducktown Sulphur, Copper & Iron Co., 83 S.W. 658, 661, 666-67 (Tenn. 1904) (declining to permanendy enjoin mining and manufacturing operations, but granting damages after comparing the value of the industry to the surrounding property).
235. See generally Guido Calabresi & A. Douglas Melamed, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85 HARV. L. REV. 1089 (1972).
236. See Alexander, supra note 4, at 762-64.
237. See, e.g., J.E. PENNER, THE IDEA OF PROPERTY IN LAW 49 (1997) ("If we believe in any fairly robust interest in autonomy, then the interest in determining the use of things is in part an interest in trying to achieve different goals.").
238. See supra Part I.E.
239. 2 BLACKSTONE, supra note 12, at *2.
240. Id. at *14.
241. Madison v. Ducktown Sulphur, Copper & Iron Co., 83 S.W. 658, 667 (Tenn. 1904);
242. see JAMES W. ELY, JR., RAILROADS AND AMERICAN LAW 200-05 (2001);
243. Paul M. Kurtz, MreeíeenťA Century Anti-Entrepeneurial Nuisance Injunctions-Avoiding the Chancellor, 17 WM. & MARY L. REV. 621, 647-48, 656-63 (1976).
244. Some of the confusion here stems also from a tendency in the cases to describe property in terms of the lay conception of the "right to exclude." As Alexander correcdy notes, "exclude" focuses on the right without the correlative duty. If property refers to a domain of "[e]xclusivity," "exclusive use" accentuates the fact that boundaries steer parallel discretion to many different owners simultaneously. See supra note 133 and accompanying text.
245. See Calabresi &: Melamed, supra note 235, at 1116.
246. Alexander, supra note 4, at 780.
247. 257 N.E.2d 870 (N.Y. 1970). In fairness, even after Boomer, many modern cases continue to weigh the equities more skeptically than Boomer encourages.
248. See, e.g., Estancias Dallas Corp. v. Schultz, 500 S.W.2d 217 (Tex. App. 1973). Even in Boomer, on remand, the trial court awarded the plaintiffs quadruple the actual damages it had determined they had suffered before appeal.
249. See Daniel A. Farber, Reassessing Boomer: Justice, Efficiency, and Nuisance Law, in PROPERTY LAW AND LEGAL EDUCATION: ESSAYS IN HONOR OF JOHN E. CRIBBET 7, 8-11 (Peter Hay & Michael H. Heoflich eds., 1988). For a skeptical account of Boomer, consider Roger Meiners & Bruce Yandle, Common Law and the Conceit of Modem Environmental Policy, 7 GEO. MASON L. REV. 923 (1999).
250. RESTATEMENT (SECOND) OF TORTS §§826-28 (1979). I might use a theory of justice to interpret an instrumentalist opinion if the opinion's instrumentalist arguments are so question-begging they seem likely to be recasting instrumentally latent and unarticulated claims of justice. Posner's economic analysis of adverse possession reads this way to me. See supra notes 124-25 and accompanying text. That possibility might apply to economic analysis of nuisance remethes, but whether it does or not is a question too complicated and tangential to explore here.
251. King v. Columbian Carbon Co., 152 F.2d 636, 638 (5th Cir. 1945); see Pendoley v. Ferreira, 187 N.E.2d 142, 146 (Mass. 1963) (giving "[d]ue consideration ... to the [defendants'] economic interest in an orderly, rather dian a hurried, liquidation of their [polluting business]"); Gilbert v. Showérman, 23 Mich. 448 at *4 (1871) (denying injunctive relief where "the business of the defendants is . . . lawful in itself and necessary to the community"); Storey v. Cent. Hide & Rendering Co, 226 S.W.2d 615, 617 (Tex. 1950) (focusing on whether the defendant engaged in a "lawful" activity);
252. see also H.G. WOOD, A PRACTICAL TREATISE ON THE LAW OF NUISANCES IN THEIR VARIOUS FORMS: INCLUDING REMEDIES THEREFOR AT LAW AND IN EQUITY 1182 (3d ed. 1893) ("[T]he effect upon the defendant's business and interests will be considered.").
253. Alexander, supra note 4, at 781.
254. Provided the law recognizes that the plaintiff has suffered some invasion of rights and holds the plaintiff harmless for the taking with proper damages.
255. Carpenter v. Double R Catde Co., 701 P.2d 222, 227 (Idaho 1985), takes this approach, but the case is regarded as an outher. See, e.g., RICHARD A. EPSTEIN, TORTS 361 (2001) (praising the "strong dissent" for "righdy denouncing]" the majority's approach).
256. See Smith, supra note 124, at 985-86.
257. 277 A.2d 369 (N.J. 1971).
258. See, e.g, Pruneyard Shopping Ctr. v. Robbins, 447 U.S. 74, 77, 88 (1980) (holding that a state law did not violate property rights when it prevented a private shopping center from excluding individuals seeking signatures for a petition).
259. See Shack, 277 A.2d at 370.
260. See id. at 370-71.
261. See id. at 373-75.
262. Peñalver, supra note 5, at 883-84.
263. See Alexander, supra note 4, at 808.
264. w. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS 70 (5tt ed. 1984).
265. BLACKSTONE, supra note 12, at *209.
266. See, e.g., Vincent v. Lake Erie Transp. Co., 124 N.W. 221 (Minn. 1910); Ploof v. Putnam, 71 A. 188 (Vt. 1908).
267. See, e.g., Smith v. New England Aircraft Co., 170 N.E. 385 (Mass. 1930).
268. See Andrew P. Morriss, Review of Jesse Dukeminier and James E. Krier, Property (4th Edition 1998), 22 SEATTLE U. L. REV. 997, 1005 (1999) (calling Shack "virtually meaningless outside its historical and economic context" and questioning "whether the case accurately expresses even a significant minority view of limits on the right to exclude").
269. see State v. Shack, 277 A.2d 369, 370 (N.J. 1971).
270. id.
271. See Morriss, supra note 262, at 1005-06.
272. For an academic exposition of the case for protecting migrant workers, see MARC LINDER, MIGRANT WORKERS & MINIMUM WAGES: REGULATING THE EXPLOITATION OF AGRICULTURAL LABOR IN THE UNITED STATES (1992).
273. See WENDELL BERRY, THE GIFT OF GOOD LAND: FURTHER ESSAYS CULTURAL AND AGRICULTURAL (1981) (exploring how farmers enjoy closeness to land and the practice of farming independent from their monetary benefits).
274. Cf. ROBERT C. ELLICKSON, ORDER WITHOUT LAW: HOW NEIGHBORS SETTLE DISPUTES 40-120 (1991) (finding that ranchers and farmers internalize strong social norms to respect one another's boundaries, even when local trespass rules sanction such invasions).
275. See Howard Gault Co. v. Tex. Rural Legal Aid, Inc., 615 F. Supp. 916, 922-26 (N.D. Tex. 1985).
276. See, e.g, Lloyd Corp. v. Tanner, 407 U.S. 551 (1972) ("[T]his Court has never held that a trespasser or an uninvited guest may exercise general rights of free speech on property privately owned and used nondiscriminatorily for private purposes only.").
277. BARRY GREEVER, TRAIN INSTITUTE, STRATEGIC AND TACTICAL RESEARCH POWER STRUCTURE ANALYSIS 14, 16 (1981);
278. see id. at 58.
279. See Smith, supra note 124, at 982-84.
280. See id. at 962-63.
281. MACINTYRE, supra note 80, at 186.
282. See Peñalver, supra note 5, at 884.
283. See NICOMACHEAN ETHICS, supranote 14, V.3, at 1131a24-bl2;
284. NICOMACHEAN ETHICS (Sachs trans.), supra note 14, at 84.
285. GEORGE, supra note 91, at 44; accord POLITICS, supra note 40, II.5, at 1263M1-14;
286. POLITICS (Lord trans.), supra note 40, at 61.
287. See PENNER, supra note 237, at 74-75.
288. See Joseph William Singer, TAe Reliance Interest in Property, 40 STAN.-L. REV. 611 (1988) (arguing that, when individuals rely on relations organized around property assets, their reliance can grow into property interests in ttose assets).
289. See Rael Jean Isaac, WAo Funds the Left? The GOP, WALL ST. J., June 23, 1995, at Al4, Lexis Nexis Academic.
290. 1 XENOPHON, CYROPAEDIA 1.3.16-17, at 40-43 (G.P. Goold ed., 1994) (1914).
291. see id. at 1.3.17-18, at 42-43.
292. See ROBERT FAULKNER, THE CASE FOR GREATNESS: HONORABLE AMBITION AND ITS CRITICS 144 (2007);
293. see id. at 140-44.
294. I diank Peter Byrne for encouraging me to consider this possibility.
295. See NICOMACHEAN ETHICS, supra note 14, X.9, at 1180a22-24;
296. NICOMACHEAN ETHICS (Sachs trans.), supra note 14, at 198.