The contested commitments of property

Hastings Law Journal

Volumn 61, Issue 4, 2010, Pages 917-968

  Baron, Jane B ^a  

^a TEMPLE UNIVERSITY   (United States)

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EID: 77952540057     PISSN: 00178322     EISSN: None     Source Type: Journal    
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References (355)

1. On progressivism generally, see Gregory S. Alexander et al., A Statement of Progressive Property, 94 CORNELL L. REV. 743 (2009). Along with Professor Alexander, the Statement was written by Eduardo M. Peñalver, Joseph William Singer, and Laura S. Underkuffler.
2. For reasons described infra note 12,
3. Include Jedediah Purdy among the progressive scholars. The specific claims of progressive scholarship are examined infra Part LB.
4. See, e.g., Shyamkrishna Balganesh, Demystifying the Right to Exclude: Of Property, Inviolability, and Automatic Injunctions, 31 HARV. J.L. A PUB. POL'Y 593, 596 (2008) ("The idea of exclusion, in one form or the other, tends to inform almost any understanding of property, whether private, public, or community.");
5. Hanoch Dagan, Exclusion and Inclusion in Property 8 (June 9, 2009) (unpublished manuscript), available at http://ssrn.com/abstract=1416580.
6. "Exclusion is in vogue in property discourse." Id. at 2;
7. see also Elizabeth M. Glazer, Property's Contingent Right to Exclude I (June 2009) (unpublished manuscript, on file with the Hastings Law Journal) ("Property law's right to exclude has taken on a life of its own.").
8. See infra Part I.A.
9. Progressive theorists do not argue that exclusion is irrelevant to or trivial in property law, but rather that exclusion does not play the defining role suggested by information theorists. See, e.g., Gregory S. Alexander, Reply, The Complex Core of Property, 94 CORNELL L. REV. 1063, 1070 (2009) ("The core of ownership is more complex than the right to exclude standing alone.");
10. Dagan, supra note 2, at 8 ("[E]xclusion or exclusivity can exhaust the meaning of property and thus be properly described at its core only if we set aside, somewhat arbitrarily, large parts of what constitutes property law....");
11. Glazer, supra note 2;
12. Larissa Katz, Exclusion and Exclusivity in Property Law, 58 U.
13. TORONTO L.J. 275, 277-78 (2008);
14. see also Joseph William Singer, No Right to Exclude: Public Accommodations and Private Property, 90 Nw. U. L. REV. 1283, 1295 (1996).
15. Information and progressive theorists have explicitly debated one another over this issue. Compare Henry E. Smith, Intellectual Property as Property: Delineating Entitlements in Information, 116 YALE L.J. 1742, 1745 (2007) ("The exclusion strategy protects rights-holders' interests in the use of resources indirectly, by using a simple signal for violations. The prototypical example is trespass to land...."),
16. with Gregory S. Alexander, The Social-Obligation Norm in American Property Law, 94 CORNELL L. REV. 745, 775-810 (2009) (describing a variety of property doctrines that are not based on exclusion and that instantiate social obligation norms).
17. It is not clear that progressive theorists would have chosen the core/periphery metaphor had information theorists not emphasized it so heavily. See generally Alexander, supra note 5.
18. See J.E. Penner, The "Bundle of Rights" Picture of Property, 43 UCLA L. REV. 711, 714 (1996).
19. Among other problems, it conflicts with what Bruce Ackerman calls the "Ordinary Observer's" understanding of property, rooted in "the ordinary talk of non-lawyers," see BRUCE A. ACKERMAN, PRIVATE PROPERTY AND THE CONSTITUTION 10 (Yale Univ. Press 1977), and with what Joan Williams calls the "intuitive image," which emphasizes property's "absolutism,"
20. see Joan Williams, The Rhetoric of Property, 83 IOWA L. REV. 277, 280-95 (1998).
21. It has been attacked as normatively empty, see Penner, supra note 7, at 714 ("[T]he bundle of rights... schema [does not] suggest any clear methodology for dealing with property issues."),
22. as incoherent, see Jeanne L. Schroeder, Chix Nix Bundle-O-Stix: A Feminist Critique of the Disaggregation of Property, 93 MICH. L. REV. 239, 243 (1994) ("[A]though its proponents usually present the 'bundle of sticks' metaphor as an alternative to the 'property as thing' metaphor, the former is in fact merely a variation of the latter."),
23. and as dysfunctional, see Michael A. Heller, The Boundaries of Private Property, 108 YALE L.J. 1163, 1165 (1999) (noting the potential of the bundle theory to create overly fragmented anticommons property).
24. Finally, as noted infra note 129, the "bundle of rights" theory potentially renders every "stick" in the bundle a separate property interest, capable of being "taken" in the Fifth Amendment sense by government regulation that reduces or eliminates it.
25. See generally Thomas W. Merrill & Henry E. Smith, Optimal Standardization in the Law of Property: The Numerus Clausus Principle, 110 YALE L.J. I (2000).
26. As explained infra Part III.A, progressive theorists focus less on the duties of nonowners to owners (which are central in information theories) and more on owners' duties to nonowners and other members of their communities. Putting this another way, information theorists tend to be concerned with "negative" duties, such as duties to "keep off." Progressive theorists are concerned, in contrast with whether owners might owe "positive" duties, such as a duty to permit access.
27. See infra Part I.A.
28. Without purporting to be exhaustive, I survey theories offered by Gregory Alexander, Eduardo Peñalver, Jedediah Purdy, and Joseph Singer. See generally Alexander, supra note 5, at 748 (flourishing);
29. Eduardo M. Peñalver, Land Virtues, 94 CORNELL L. REV. 821 (2009) (virtue);
30. Joseph William Singer, Democratic Estates: Property Law in a Free and Democratic Society, 94 CORNELL L. REV. 1009, 1047 (2009) (democracy);
31. Jedediah Purdy, A Freedom-Promoting Approach to Property: A Renewed Tradition for New Debates, 72 U. CHI. L. REV. 1237 (2005) [hereinafter Purdy, A FreedomPromoting Approach];
32. Jedediah Purdy, People as Resources: Recruitment and Reciprocity in the Freedom-Promoting Approach to Property, 56 DUKE L.J. 1047 (2007) [hereinafter Purdy, People as Resources] (respect for humanity of others).
33. As explained supra note 1, Purdy did not sign the Statement of Progressive Property. Nonetheless, his work reflects many progressive themes, and he is described by at least one of the Statement's signatories as a fellow progressive.
34. See Singer, supra. I take no position in this Article as to whether the theories offered as part of the statement are actually progressive in the political or historical sense; I simply adopt the authors' own label.
35. Thomas W. Merrill & Henry E. Smith, The Morality of Property, 48 WM. A MARY L. REV. 1849, 1850 (2007) [hereinafter Merrill & Smith, Morality of Property]. The term "things" as used by information theorists refers to intangible as well as tangible property.
36. See Henry E. Smith, Property and Property Rules, 79 N.Y.U. L. Rev. 1719, 1754 (2004) [hereinafter Smith, Property] (making no distinction between tangible and intangible things).
37. Henry E. Smith, Self-Help and the Nature of Property, 1 J.L. ECON. & POL'Y 69, 79 (2005).
38. Thomas W. Merrill & Henry E. Smith, What Happened to Property in Law and Economics?, III YALE L.J. 357, 387 (2001) [hereinafter Merrill & Smith, What Happened to Property] (footnote omitted);
39. see also Henry E. Smith, The Language of Property: Form, Context, and Audience, 55 STAN. L. REV. 1105, 1147 (2003) [hereinafter Smith, Language of Property] ("[P]otential violators' information costs bear on the design of the law. Property presents a simple message to the outside world....[T]he dutyholder only needs to know that he does not own the asset in order to know that he must keep out. This keeps informational demands on the dutyholder to a minimnm."(footnotes omitted)).
40. For more on the "measurement costs" faced by those seeking to avoid violating others' property rights, see Merrill & Smith, supra note 9, at 26-42.
41. Smith, supra note 14, at 77.
42. This observation derives from Coase's well-known work. See R. H. Coase, The Problem of Social Cost, 3 J.L. A ECON. I (1960).
43. Smith, supra note 14, at 78.
44. Id. (footnotes omitted);
45. see also Smith, Property, supra note 13, at 1754 ("Protection of a large and indefinite class of uses by delineating a thing and giving the owner a right to exclude all others from the thing is a strategy well suited to situations in which it is not economical to decide first-order questions of use on a use-by-use basis.").
46. Smith, supra note 14, at 79.
47. Id. at 79-80, 87-89;
48. see Smith, Property, supra note 13, at 1755-58.
49. For an explication of the basics of exclusion and governance, see Henry E. Smith, Exclusion Versus Governance: Two Strategies for Delineating Property Rights, 31 J. LEGAL STUD. 453 (2002).
50. Thomas W. Merrill & Henry E. Smith, The Property/Contract Interface, 101 COLUM. L. REV. 773, 797(2001).
51. Id. at 798.
52. Id.
53. Id. at 794.
54. Smith, Language of Property, supra note 15, at 1125 ("The communication of legal relations is subject to a tradeoff between intensiveness and extensiveness of information: For the same cost, one can communicate a lot to a small, close-knit audience or a little to a large, anonymous audience.").
55. Merrill & Smith, supra note 21, at 802.
56. Id. at 803.
57. Alexander, supra note 5, at 768. The relationship between Alexander's notion of human flourishing and the notion of human flourishing famously proposed by Margaret Radin in her article Property and Personhood, is not entirely clear, but Alexander explicitly locates his vision in the "Aristotelian tradition."
58. See Alexander, supra note 5, at 760-68;
59. Margaret Jane Radin, Property and Personhood, 34 STAN. L. REV. 957 (1982).
60. See Alexander, supra note 5, at 762
61. (citing MARTHA C. NUSSBAUM, WOMEN AND HUMAN DEVELOPMENT: THE CAPABILITIES APPROACH (2000);
62. AMARTYA SEN, COMMODITIES AND CAPABILITIES (1985);
63. AMARTYA SEN, DEVELOPMENT AS FREEDOM (1999)).
64. Id. at 764.
65. Id. at 765.
66. Id. at 766.
67. Id. at 774.
68. Id. at 776.
69. Id. at 805.
70. Id. at 819.
71. Peñalver, supra note 12, at 864.
72. Id.
73. Id. at 876.
74. Id. at 867-68.
75. Id. at 868.
76. Id. at 868-69 (footnotes omitted).
77. Id at 869.
78. Id. at 876.
79. Id. at 871.
80. Id.
81. Peñalver cites nondiscrimination norms embodied in the Civil Rights Act of 1964 as "contribut[ing] to dramatic changes in racial attitudes." Id. at 872.
82. Id.
83. For example, "environmental statutes or regulations... can help spread the word about best practices to landowners already inclined to act responsibly but lacking information about the remote consequences of their behavior." Id.
84. Id. at 880.
85. Id. at 882.
86. 277 A.2d 369, 374-75 (N.J. 1971) (holding that entry onto a farmer's land to offer services to migrant workers housed thereon was not trespass, despite the fact that the owner objected to the entry);
87. see also Peñalver, supra note 12, at 883.
88. Jane B. Baron, The Expressive Transparency of Property, 102 COLUM. L. REV. 208 (2002) [hereinafter Baron, Expressive Transparency of Property];
89. Jane B. Baron, Property and "No Property", 42 Hous. L. REV. 1425 (2006) [hereinafter Baron, Property and "No Property"];
90. Carol M. Rose, Property as the Keystone Right?, 71 NOTRE DAME L. REV. 329 (1996).
91. Purdy, A Freedom-Promoting Approach, supra note 12;
92. Purdy, People as Resources, supra note 12.
93. Purdy, A Freedom-Promoting Approach, supra note 12, at 1243.
94. Id.
95. Id. at 1242 ("Today [the] theoretical underpinnings [of the freedom-promoting conception] are experiencing a revival, most prominently in the thought of Nobel laureate economist Amartya Sen.").
96. Id. at 1243.
97. Id. at 1244.
98. Id. at 1244-45.
99. Id. at 1285.
100. Purdy, People as Resources, supra note 12, at 1059.
101. Id. at 1060-68.
102. Id. at 1068-79;
103. Purdy, A Freedom-Promoting Approach, supra note 12, at 1251-65.
104. Purdy, People as Resources, supra note 12, at 1097-98.
105. Purdy, A Freedom-Promoting Approach, supra note 12, at 1298.
106. Id.
107. Singer, supra note 12, at 1046-47.
108. Id. at 1047 (emphasis added).
109. Id. at 1048.
110. Id.
111. Id. at 1050.
112. Id. at 1050-51.
113. Id. at 1051-52.
114. Id. at 1052.
115. Id. at 1052-53.
116. See infra text accompanying notes 192-95.
117. Dagan, supra note 2, at 2 ("The bundle-of-sticks picture of property... had for decades been regarded as the conventional wisdom.").
118. RESTATEMENT (FIRST) OF PROPERTY §§ 1-4 (1936).
119. See, e.g., JESSE DUKEMINIER ET AL., PROPERTY 81 (6th ed. 2006) ("[T]he abstraction we call property is multi- not monolithic. It consists of a number of disparate rights, a 'bundle' of them....").
120. Heller, supra note 8, at 1192 n.150 (reporting the increase in the number of cases using the term, from four state and federal cases before 1940, to 775 cases between 1980 and 1999, when Heller's article appeared).
121. See sources cited supra note 8.
122. DUKEMINIER ET AL., supra note 79, at 81 n.40.
123. For example, owners have the power to use what they own, to exclude others from it, to sell it, to devise it, to grant others rights to use it, and so on. See, e.g., JOSEPH WILLIAM SINGER, PROPERTY LAW: RULES, POLICIES, AND PRACTICES 505 (4th ed. 2006). ("An owner of a fee simple interest in real property has the present right to possess and use the property, to sell it or give it away, and the right to devise it by will or leave it to her heirs.").
124. In the sense of being an agglomeration of separable powers, property can be said to be a "bundle of rights." In this usage, the "bundle" metaphor emphasizes the multiplicity of powers owners have. They can give and sell; they can keep others out and set the terms on which others can enter.
125. Thus, different persons might own different physical interests in the same land, with separate persons owning the mineral rights, the surface rights, or the air rights in a given parcel of land.
126. Thus, one person may own the right to present possession, and a different person own the right to possession in the future, as is true in the case of leaseholds and life estates followed by remainders. SINGER, supra note 83, at 493.
127. In addition, multiple people may own interests in the same property at the same time, via joint tenancy or tenancy in common. Id.
128. Take the example of a condominium owner who "might have a 'fee simple' interest in her unit's living space, an exclusive easement in her balcony area and parking space, tenancy in common in the hallways and the swimming pool, defined participatory rights in the community's governance, and so forth." CAROL M. ROSE, PROPERTY AND PERSUASION: ESSAYS ON THE HISTORY, THEORY, AND RHETORIC OF OWNERSHIP 280 (1994). The condo owner's rights are the sum (or "bundle") of these separate interests.
129. Id. at 282.
130. The metaphor might seem problematic insofar as it is inattentive to, or may even weaken, "the sense that groupings of property rights might be interconnected and interdependent." Id. at 280;
131. see also Craig Anthony (Tony) Arnold, The Reconstitution of Property: Property as a Web of Interests, 26 HARV. ENVTL. L. REV. 281, 282 (2002) ("In this Article, I articulate a new understanding of property as a web of interests, not a bundle of rights.").
132. Yet, its disaggregative tendencies notwithstanding, "the bundle of sticks is not just sticks but a bundle," and thus "the bundle metaphor acts at least as much to 'package' the various elements as it does to give an impression of their separateness." ROSE, supra note 86, at 282.
133. See, e.g., Merrill & Smith, What Happened to Property, supra note 15, at 365 ("Hohfeld did not use the metaphor 'bundle of rights' to describe property. But his theory of jural opposites and correlatives, together with his effort to reduce in rem rights to clusters of in personam rights, provided the intellectual justification for this metaphor.....");
134. Arnold S. Weinrib, Information and Property, 38
135. U. TORONTO L.J. 117, 120 (1988) ("[S]ince the writings of W.N. Hohfeld it has been generally agreed that 'property' refers to legal interests that exist only as between persons, in respect of things." (footnote omitted)).
136. Hohfeld did write that "all legal interests are 'incorporeal'- consisting, as they do, of more or less limited aggregates of abstract legal relations." Wesley Newcomb Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, 23 YALE L.J. 16, 24 (1913).
137. See, e.g.. SINGER, supra note 83, at 2 ("It is sometimes thought that property concerns power over things. One problem with this definition is that many property rights do not concern 'things' at all, but intangible resources, such as copyright or interests in an ongoing business.");
138. see also GREGORY S. ALEXANDER, COMMODITY A PROPRIETY: COMPETING VISIONS OF PROPERTY IN AMERICAN LEGAL THOUGHT 1776-1970, at 381 (1997) ("Property exists in whatever resources have market value, and increasingly in American society the most valued goods are not the tangible things but the intangible interests, expectations, and promises.").
139. Of course, intangibles can be "things." See supra note 13 and accompanying text.
140. On historical changes in property forms and the conclusions some have drawn from those changes, see infra Part II.B.
141. ALEXANDER, supra note 89, at 320.
142. JOSEPH WILLIAM SINGER, ENTITLEMENT: THE PARADOXES OF PROPERTY 10 (2000) ("The right to exclude nonowners, for example, regulates nonowners by requiring them to stay off the owner's property.").
143. See Hohfeld, supra note 88, at 21 (describing property as an "aggregate of legal relations" appertaining to a "physical object").
144. Property was simply a "striking example" of the "ambiguity and looseness of our legal terminology." Id.
145. Though many of Hohfeld's illustrations involved property, he noted that in the field of contracts as well there was comparable "ambiguity and confusion." Id. at 24-25.
146. Id. at 28.
147. ACKERMAN, supra note 8, at 26.
148. Penner, supra note 7, at 801;
149. see also id. at 808.
150. Emily Sherwin, Two- and Three-Dimensional Property Rights, 29 ARIZ. ST. L.J. 1075, 1086 (1997);
151. see also Schroeder, supra note 8, at 292 ("Unfortunately, [Hohfeld] missed the point that property is a relationship between subjects that is mediated through an object.").
152. Schroeder argues that "although its proponents usually present the 'bundle of sticks' metaphor as an alternative to the 'property as thing' metaphor, the former is in fact merely a variation of the latter." Id. at 243 (footnote omitted).
153. Merrill & Smith, What Happened to Property, supra note 15, at 359.
154. Id. at 360 (emphasis added).
155. On the in rem nature of property rights, see, for example, Smith, supra note 14, at 78-79,
156. and Merrill & Smith, supra note 21, at 786-87.
157. Merrill & Smith, supra note 21, at 787.
158. Put another way, citizens A, B, and C have exactly the same duties vis-à-vis an owner of a thing as citizens X, Y, and Z. Id.
159. On the importance of exclusion, see supra text accompanying notes 16-27.
160. See Merrill & Smith, supra note 21, at 787.
161. See generally Merrill & Smith, supra note 9.
162. Id. at 35 (describing the way in which, like language, the standardized building blocks can be combined in complex ways).
163. See id. at 8.
164. When property rights are created, third parties must expend time and resources to determine the attributes of these rights, both to avoid violating them and to acquire them from present holders. The existence of unusual property rights increases the cost of processing information about all property rights. Those creating or transferring idiosyncratic property rights cannot always be expected to take these increases in measurement costs fully into account, making them a true externality. Standardization of property rights reduces these measurement costs. Id.
165. Merrill & Smith, What Happened to Property, supra note 15, at 387.
166. In a way, the information theorists' antagonism toward the "bundle of rights" metaphor seems odd, because they concede that the basic, building-block forms delineated by the numerus clausus principle- the common law estates-are in a real sense bundles of rights. See, e.g., Merrill & Smith, supra note 9, at 36 (referring to common law estates as the "set of property rights bundles.") That is, even those who contend that standardization is effectively mandatory do not dispute that the standard packages are bundles. Their issue with the "bundle of rights" metaphor is mainly with its tacit or implicit suggestion that the bundles can be altered at will.
167. Merrill & Smith, What Happened to Property, supra note 15, at 386.
168. See, e.g., Singer, supra note 12, at 1032 ("[T]he legal realist approach had its own problems. Taken to its extreme, the bundle-of-rights idea could suggest that property has no meaning whatsoever as a legal category....").
169. See, e.g., id. at 1049 ("[T]he democratic approach to property understands property not merely as an individual right but a social system.").
170. Singer, supra note 4, at 1461.
171. See ACKERMAN, supra note 8, at 10.
172. Id. at 26.
173. See Singer, supra note 4, at 1453 ("[T]he classical conception of property... is premised on the notion that property rights identify an 'owner' who has title to a set of valued resources with a presumption of full power over those resources.").
174. In Entitlement, Singer refers to this view as the "ownership" model. See SINGER, supra note 91, at 3.
175. Under the ownership model, as under the classical model, we "typically presume that the owner has, not just one or two powers, but all [the] powers-a full bundle-over the property." Id.
176. SINGER, supra note 91, at 9;
177. see Singer, supra note 4, at 1459-60.
178. See, e.g., Joseph William Singer, After the Flood: Equality and Humanity in Property Regimes, 52 LOY. L. REV. 243, 272 (2006). [O]wnership of property includes a bundle of rights and it is often the case that some of those rights are limited to protect the legitimate interests of others. In effect, this means that some of those sticks in the bundle are in fact owned by others and not the person we conventionally think of as the owner of the property.
179. 117- Henry E. Smith, Exclusion and Property Rules in the Law of Nuisance, 90 VA. L. REV. 965, 984 (2004) [hereinafter Smith, Exclusion and Property Rules];
180. see also Smith, Property, supra note 13, at 1728 ("Property responds to uncertainty over uses by bundling uses together and delegating to the owner the choice of how to use the asset, thus avoiding the need to specify uses at any stage.").
181. Singer, supra note 12, at 1051.
182. Id. at 1050;
183. see also Hanoch Dagan, The Craft of Property, 91 CAL. L. REV. 1517, 1566-67 (2003) (arguing that communication costs do not fully explain the numerus clausus principle; rather, "limiting the number of property forms and standardizing their content facilitates the roles of property in consolidating expectations and expressing ideal forms of relationship").
184. Singer, supra note 12, at 1050. Progressive theorists are not indifferent to how property functions. Yet they focus less on property's mechanics-its "nuts and bolts," so to speak-than on the outcomes it produces.
185. For further development of this point, see infra text accompanying notes 146-62, 246-48.
186. See MORTON J. HORWTTZ, THE TRANSFORMATION OF AMERICAN LAW 1870-1960, at 145-56 (1992).
187. See John H. Langbein, The Twentieth-Century Revolution in Family Wealth Transmission, 86 MICH. L. REV. 722, 723 (1988).
188. John Langbein tells this story to explain changes in inheritance law. See id.
189. As Langbein explains, "Into the eighteenth century, land was the dominant form of wealth." Id.
190. During this period, "wealth transmission from parents to children tended to center upon major items of patrimony such as the family farm or the family firm." Id.
191. But "technological forces" not only "broke up older familycentered modes of economic organization," they also "called forth two new forms of private-sector wealth": financial assets ("stocks, bonds, bank deposits, mutual fund shares, insurance contracts, and the like") and human capital. Id.
192. This change led to a "revolution" in family wealth transmission, a revolution driven by important changes in the form in which property is held. "In today's economic order," Langbein writes, it is "the new human capital rather than the old physical capital, that... advantages a child" and rescues him "from the harsh fate of being a mere laborer." Id. at 732-33.
193. Relatedly, "most parental wealth (apart from the parents' own human capital) now takes the form of financial assets," most particularly pension wealth, which, unlike the tangible assets of old, is consumed during the parents' own lifetimes via annuitization. Id. at 743. Since human capital is transmitted inter vivos and since most wealth remaining after the education of children is annuitized, there is now much less for the probate system to do.
194. HORWITZ, supra note 121, at 156.
195. Kenneth J. Vandevelde, The New Property of the Nineteenth Century, 29 BUFF. L. REV. 325, 366 (1980).
196. As developed below, this view is often associated with legal realism. However, it is by no means confined to realists or their descendants. "Most modern economic accounts endow property with no distinctive character at all. Property rights are simply 'entitlements,' little empty boxes filled with a miscellany of use rights that operate in the background of a world consisting of nothing but in personam obligations." Merrill & Smith, What Happened to Property, supra note 15, at 385.
197. Merrill and Smith and Eric Claeys refer to this idea as the "ad hoc bundle" conception. See THOMAS W. MERRILL & HENRY E. SMTTH, PROPERTY: PRINCIPLES AND POLICIES, at v (2007);
198. Eric R. Claeys, Property 101: Is Property a Thing or a Bundle?, 32 SEATTLE U. L. REV. 617, 623 (2009).
199. In its broadest form, the claim here emphasizes the extent to which "private" property requires and depends on the state; without public protection, no one's property rights would be secure. This idea is at the center of much of Joseph Singer's work. See, e.g.. SINGER, supra note 91, at 36, 68;
200. Joseph William Singer, Things That We Would Like to Take for Granted: Minimum Standards for the Legal Framework of a Free and Democratic Society, 2 HARV. L. & POL'Y REV. 139 (2008).
201. This idea is often traced back to the legal realists-and Robert Hale in particular-who developed it to defend New Deal legislation against the charge that such legislation interfered with the operation of the free market. See Robert L. Hale, Bargaining, Duress, and Economic Liberty, 43 COLUM. L. REV. 603, 626 (1943).
202. The defense posited that there was nothing "free" about the market prior to regulation; basic rules of property, even such seemingly innocuous rules as those forbidding the use of goods without the owner's consent, invisibly "regulate" in favor of those who already happen to own goods. Different background rules about who can withhold what from whom would lead to different outcomes, but those different background rules would be no more "regulatory" than the rules that happened to be in place previously. See id.
203. The question thus is not whether the government can regulate, but in what ways or to what ends it will regulate. For a description of how this argument was meant to work, and why it has failed over time to gain the traction that might otherwise have been expected, see Baron, Expressive Transparency of Property, supra note 52, at 231-32.
204. See Merrill & Smith, What Happened to Property, supra note 15, at 365 ("[T]he motivation behind the realists' fascination with the bundle-of-rights conception was mainly political. They sought to undermine the notion that property is a natural right, and thereby smooth the way for activist state intervention in regulating and redistributing property.");
205. see also Smith, supra note 14, at 77 ("The atomized bundle-of-rights picture of property makes the bundles the law provides look arbitrary and makes re-engineering the bundle seem attractive.").
206. See Merrill & Smith, What Happened to Property, supra note 15, at 365.
207. One obvious difficulty with this view is its potential to conflict with the view of property emphasizing fragmentation. If, as earlier described, each separate "right" or "stick" in the property rights bundle is itself property (and is its own "bundle of rights"), then any regulatory action that eliminates or even just reduces the value of any individual right or stick arguably "takes" that fragmented property right. See HORWITZ, supra note 121, at 160 ("Th[e] process of abstracting the idea of property into market value was... dangerously over-inclusive [because] it made virtually every change in government policy that caused a decline in market value potentially a taking.....").
208. During the nineteenth century, Horwitz explains, "American courts came as close as they had ever had to saying that one had a property right to an unchanging world." Id. at 151.
209. Alexander argues that, in light of this problem, "[t]he whole bundle-of-rights metaphor ought to be abandoned." Alexander, supra note 5, at 801.
210. Yet the very fragmentation that creates the potential taking problem may, ironically, solve it. Even if the government "takes" some rights or sticks, other fragments will inevitably remain, and if "enough" remains, there is no taking after all. See Eric R. Claeys, Takings: An Appreciative Retrospective, 15 Wm. & Mary Bill Rts. J. 439, 448 (2006).
211. Because [the bundle-of-rights approach] treats different property claims as disaggregated rights, it expands the free action that legislators and regulators have to set policy. Once property is disaggregated, regulators can sort through particular rights claims piecemeal. Regulators may socialize a few owners' rights to satisfy the demands of legislative majorities while still leaving the owners with a substantial residue. Regulators can insert or remove different sticks in an owner's bag, but the owner still has "property" as long as she still has a bag and other sticks. Id.
212. See, e.g., Dagan, supra note 119, at 1532 ("The bundle of rights metaphor captures the truism that property is an artifact, a human creation that can be, and has been, modified in accordance with human needs and values.");
213. Weinrib, supra note 88, at 120-22 (emphasizing that the concept of property is "purposive" and that "it follows from the instrumental nature of property that the concept should not be a static one").
214. Merrill & Smith, supra note 9, at 24.
215. Id. at 23.
216. 133- Id. at 11.
217. Id. at 51 ("Throughout history and across numerous legal systems, the provision of standards for the basic building blocks of the property system has been largely a government affair.").
218. Id. at 58.
219. By limiting courts to enforcing the status quo in terms of recognized property interests, the numerus clausus makes the courts an inhospitable forum for modifying existing forms of property or creating new ones. Consequently, parties who wish to secure changes in the pattern of available property rights must look elsewhere-most prominently, to the legislature. Id.
220. Interestingly, Hale also argued that the legislature might be institutionally superior as a vehicle for the redistributional changes he envisioned. See Hale, supra note 127, at 625.
221. Merrill & Smith, supra note 9, at 63.
222. Id. at 16.
223. Id. at 40.
224. Id. at 69;
225. see also id. at 61-68 (describing legislative decisionmaking's advantages in terms of "clarity, universality, comprehensiveness, stability, prospectivity, and implicit compensation").
226. See, e.g., Singer, supra note 12, at 1023.
227. See SINGER, supra note 91, at 36 ("[P]roperty requires regulation.").
228. On the realists' views, see supra note 127.
229. See Alexander, supra note 5, at 796-801.
230. See, e.g.. Singer, supra note 12, at 1026.
231. Id. at 1055 (describing, among the normative features of property law in a free and democratic society, "widespread distribution of property and realistic potential for access to ownership").
232. Id. ("[W]e value both stability and change....").
233. See supra text accompanying notes 74-75.
234. Singer, supra note 12, at 1050-55 (describing the "plural values" underlying democratic property rights, including, inter alia, freedom, stability, family, autonomy, mobility, and "widespread distribution of property").
235. Smith, Exclusion and Property Rules, supra note 117, at 978.
236. Id. at 978-79.
237. Henry E. Smith, Community and Custom in Property, 10 THEORETICAL INQUIRIES L. 5, 15 (2009);
238. see also Smith, Language of Property, supra note 15, at 1113, 1135.
239. Peñalver, supra note 12, at 868.
240. Singer, supra note 12, at 1054.
241. Id. at 1058;
242. see also Peñalver, supra note 12, at 882 ("[A]n obligation to share one's property in kind with others might arise, for example, (1) because exclusion... is inconsistent with the dignity of the excluded person; (2) because of the unusually acute... need for access... ; (3) because of the relationships the recipients have formed with the owner's land; or (4) because of the relationships of dependence or reliance that owners have formed with the recipients.").
243. Id.
244. Singer, supra note 12, at 1061;
245. see also Peñalver, supra note 12, at 876 ("Virtue theory's lack of an algorithm for social decision making, far from being a fatal weakness, is actually a point of strength... [because] it focuses decision makers' attention exactly where it should be.").
246. Alexander, supra note 5, at 774.
247. See, e.g., Raleigh Ave. Beach Ass'n v. Atlantis Beach Club, 879 A.2d 112 (NJ. 2005);
248. Matthews v. Bay Head Improvement Ass'n, 471 A.2d 355 (N.J. 1984).
249. Alexander, supra note 5, at 804.
250. Id. at 807; see also id. at 806 ("I do suggest... that recreation is an important aspect of health, which is itself a vital dimension of the capability of life, and that providing all persons, including poor people, with reasonable access to basic modes of recreation and relaxation would materially contribute to the goal of being capable of living lives worth living.").
251. Id. at 791-801.
252. Id. at 807.
253. Merrill & Smith, Morality of Property, supra note 13, at 1857.
254. Id. at 1859; see Smith, Exclusion and Property Rules, supra note 117, at 1024-1025 (arguing that where to draw the line between exclusion and governance is an "empirical question").
255. See Carol M. Rose, Crystab and Mud in Property Law, 40 STAN. L. REV. 577, 580 (1988).
256. But see Merrill & Smith, supra note 21, at 803 ("Because in rem rights are binding on an indefinite class of persons, the rules must communicate information about the scope of protected rights to this large universe of interests at acceptable costs. This means that substantive legal norms associated with in rem rights are more likely to be expressed as rules that turn on one or a small number of publicly observable states of fact, and thus are formalistic or bright line in character.").
257. See, e.g.. Smith, Exclusion and Property Rules, supra note 117, at 989 ("[A]s the pressure on and value of resources rise, we often find a shift from exclusion to governance."); Smith, supra note 14, at 79 (where "[m]ore precision in terms of who can do what" can be determined in a way that is costeffective, a governance strategy may be appropriate).
258. Dagan, supra note 119, at 1562; see also Dagan, supra note 2, at 8-9.
259. Alexander, supra note 4, at 1064.
260. See Duncan Kennedy, Form and Substance in Private Law Adjudication, 89 HARV. L. REV. 1685 (1976).
261. Henry E. Smith, Response, Mind the Gap: The Indirect Relation Between Ends and Means in American Property Law, 94 CORNELL L. REV. 959, 963-971 (2009).
262. Id. at 964; see also id. at 965 ("Alexander and others... would like to see the end of flourishing more in direct view."); Alexander, supra note 5, at 774 (calling for "open acknowledgment" of the social-obligation norm and "explicit development of its parameters").
263. Smith, supra note 168, at 963.
264. Id. at 964.
265. Id. And in individual cases where they do not, the governance strategy is always available: "Where problems are important enough and cannot be solved better in a different way, we start to use more tailored solutions-governance-that make more direct reference to the ends that we collectively want to see served." Id. at 964-965
266. Id. at 963. Smith admits that "talking about ultimate ends is more glamorous than asking the more engineering-like question of how to serve them," but argues that legal scholars excel at "institutional design," and should "embrace our role." Id. at 970.
267. Id. at 971; see also id. at 970 (citing "coordination in a complex world" as one of several "emergent properties of the entire property system").
268. See, e.g.. Singer, supra note 12, at 1059 ("In defining rights and obligations with respect to property, we are obligated to consider the full range of human values we care about rather than merely thinking quantitatively about how to maximize preferences.").
269. Merrill & Smith, The Morality of Property, supra note 13, at 1857.
270. See sources cited supra note 2; supra text accompanying notes 16-27.
271. Nestor Davidson has argued that this issue of complexity does not require a resolution at all.
272. See Nestor M. Davidson, Standardization and Pluralbm in Property Law, 61 VAND. L. REV. 1597, 1644 (2008).
273. He asserts that property is fundamentally "pluralist" in nature, and that its standard forms "engraft a variety of (at times clashing) public regulatory goals onto the basic law of private property - It is the variety and sheer messiness of the mandatory content of the forms that make the numerus clausus so interesting." Id. The picture of property as an enormous tent, employing a stable "basic regulatory framework of forms" to encompass or express numerous conflicting values, id. at 1636, has enormous appeal. Yet somehow it fails to address the obvious points of disagreement within contemporary property theory.
274. Thus Alexander praises the court's holding for the landowner and against the trespasser in Jacque v. Steenberg Homes, Inc., 563 N.W.2d 154 (Wis. 1997), as consistent with human flourishing. Jacque is usually cited as the quintessential right-to-exclude case. In Jacque, the court upheld an award of punitive damages for what was arguably a harmless, yet clearly intentional, trespass.
275. See id. at 621-22. Alexander avoids the traditional reading of Jacque by emphasizing that the trespass involved the plaintiffs' home and thus their capacity for sociality. See Alexander, supra note 5, at 815-817
276. See Molly Shaffer Van Houweling, Distributive Values in Copyright, 83 TEX. L. REV. 1535 (2005).
277. Notwithstanding Alexander's use of Jacque in The Social-Obligation Norm, see supra note 179, progressive theorists are, in general, far less likely to look to trespass cases as paradigmatic of property law, invoking instead the range of statutory and administrative regulations that limit common-law exclusion rights. See supra text accompanying notes 74-75, 146-147
278. State v. Shack, 277 A. 2d 369, 374-75 (N.J. 1971), is the quintessential example. In this famous casebook case, the court declined to characterize as a trespass an unconsented-to entry by government workers seeking to offer services to migrant workers housed on a farmer's land. Id. The court found illegitimate the farmer's attempt to use his power to exclude in a way that affected the dignity and destiny of the workers on his property. Id.
279. See, e.g., Alexander, supra note 4, at 1066 ("[T]he core of property is complex, certainly more complex than [exclusion alone]...."). But see Smith, supra note 168, at 968 ("It is because the world of interactions is so complex that modular[, exclusion-based] solutions must be on the table.").
280. Like standardization, complexity "comes in degrees." See Merrill & Smith, supra note 9, at 38. Extreme and minimal complexity, like extreme and minimal standardization, have costs and benefits. But until we discuss complexity as an independent value, how would these costs and benefits be assessed?
281. For a taste of this dispute, see Smith, supra note 168, at 969. Property law provides the overall structure to manage the complexity that Alexander rightly emphasizes, but the need to manage complexity points to the need, at least in theory, for a modular solution. If so, his considerations lead in practice exactly away from his skepticism toward delegation to owners.
282. Hohfeld, supra note 88, at 30. Hohfeld also organized the interests listed above into "opposites": rights/no-rights, privileges/duties, powers/disabilities, and immunities/liabilities. Id.
283. See Baron, Property and "No Property", supra note 52, at 1445.
284. Id.
285. For convenience, unless the context requires more precision, I will use the term "duties" to include all the "negative" aspects of property interests, including no-rights, disabilities, and liabilities.
286. Of course, the system also operates to delineate rights in such a way that buyers will know exactly what they are obtaining when they acquire property. See Merrill & Smith, supra note 9, at 26-34.
287. See supra Part I.A.
288. Smith, Property, supra note 13, at 1728.
289. Smith, Exclusion and Property Rules, supra note 117, at 1023; see also Merrill & Smith, supra note 21, at 791 ("Exclusion identifies a person or entity as the manager of a resource (the owner), and then delegates to this manager the discretion to select from among an open-ended set of potential uses."); Smith, Property, supra note 13, at 1728 ("[T]he right to exclude... protects a reservoir of uses to the owner without officials needing to know what those might be."). On delegation, see supra text accompanying note 117.
290. Smith, Property, supra note 13, at 1772 (footnote omitted).
291. See supra text accompanying notes 148-49, 170-172
292. Merrill & Smith, What Happened to Property, supra note 15, at 387.
293. Smith, supra note 14, at 78.
294. Merrill & Smith, supra note 21, at 794.
295. See Baron, Property and "No Property", supra note 52, at 1445.
296. On consolidation, see supra text accompanying notes 114-117
297. Putting this point another way, progressive theorists flip the question "what duties do nonowners owe to owners?" to the question "what duties do owners owe to nonowners?"
298. Singer, supra note 12, at 1047; see also Purdy, People as Resources, supra note 12, at 1094-1098 (describing our "interdependence," and urging emphasis not on "the abstract categories of the law," but rather on "the concrete social world in which each person is the owner of certain resources and not of others.").
299. Singer, supra note 12, at 1048.
300. Id. (emphasis added) (footnote omitted); see also SINGER, supra note 91, at 18 ("Owners have obligations; they have always had obligations. We can argue about what those obligations should be, but no one can seriously argue that they should not exist").
301. Peñalver, supra note 12, at 870 (footnote omitted).
302. Id. at 880; see also id. at 877 ("[A] proper concern for human flourishing includes an effort to ensure that the fruits of the land's productivity... are distributed in a manner consistent with that ultimate goal....").
303. Alexander, supra note 5, at 747-748
304. See supra text accompanying notes 156-158
305. With respect, for example, to a car In order to maintain a semblance of stability in [the property] system, not only must each owner recognize and exercise dominion over his own car, but virtually all members of society-owners and nonowners alike-must recognize and respect the unique claims of owners to their own particular auto. In other words, virtually everyone must recognize and consider themselves bound by general duties not to interfere with autos that they know are owned by some anonymous other. Merrill & Smith, Morality of Property, supra note 13, at 1853-54. Lior Strahilevitz has characterized the basic exclusionary right at the core of the system in the information view as a "hermit's right."
306. See Lior Jacob Strahilevitz, Information Asymmetries and the Right to Exclude, 104 MICH. L. REV. 1835, 1841 (2006).
307. Smith, supra note 168, at 963.
308. Purdy, A Freedom-Promoting Approach, supra note 12, at 1243.
309. Singer, supra note 12, at 1047.
310. Id. at 1047-48; see also Purdy, A Freedom-Promoting Approach, supra note 12, at 1243 ("Property rights... deeply and necessarily structure interpersonal relations.").
311. Singer, supra note 12, at 1055.
312. Alexander, supra note 5, at 768.
313. Peñalver, supra note 12, at 882.
314. See Merrill & Smith, supra note 9, at 66-68.
315. Smith, supra note 168, at 973.
316. Smith is somewhat ambiguous on this point. At one point he asks why "pleasing old buildings and public beaches" should be provided "at personal expense, rather than the government funding them by taxing other comparably wealthy citizens." Id. at 961. But at another point in the same piece he disclaims having an opinion on whether the redistribution sought by progressive theorists such as Alexander would better be achieved through a tax and transfer system. See id. at 973.
317. Merrill & Smith, supra note 9, at 24.
318. Id.
319. Id. at 35.
320. Id. at 40.
321. Id. at 58. On the information theorists' institutional choice preference for legislative change, see supra text accompanying notes 135-139
322. Merrill & Smith, supra note 9, at 63.
323. Id. at 66-67. Legislative inertia, they go on to argue, "may be more the product of a lack of consensus about the proper path of reform than of any inherent inability of legislatures to respond to demands for changes in property systems." Id. at 67.
324. Purdy, A Freedom-Promoting Approach, supra note 12, at 1243.
325. Alexander, supra note 5, at 819.
326. While Peñalver, for example, admits that his virtue theory does not provide a full account "of the proper roles of legislatures, courts, administrative agencies, and individual citizens in wise land use decision making," see Peñalver, supra note 12, at 888, he is clear that "exclusive reliance on an aggregated system of taxation and monetary payments will be inadequate," see id. at 882. Alexander and Singer also do not directly address the means by which redistribution should occur, but both praise judicial, as well as regulatory, efforts to promote more just distribution of opportunities. See Singer, supra note 12, at 1055 (citing laws, judicial doctrines, and private agreements that promote equal opportunity); Alexander, supra note 5, at 775-810 (using examples from both case law and legislation).
327. See, e.g., Merrill & Smith, What Happened to Property, supra note 15, at 359 (describing "core property rights"); Merrill & Smith, Morality of Property, supra note 13, at 1850 (describing exclusion as a "core aspect of property"); Smith, supra note 168, at 971 ("At its core, property draws on an everyday morality that it is wrong to steal and violate others' exclusion rights."). Alexander's reply to critiques of The Social-Obligation Norm is entitled The Complex Core of Property. See Alexander, supra note 4. But see supra note 6.
328. Smith, supra note 168, at 964.
329. Id. at 964-965
330. Singer, supra note 12, at 1050.
331. Id. at 1054; see also Alexander, supra note 5, at 748 (arguing that although "[t]he law has relegated the social obligations of owners to the margins, while individual rights, such as the right to exclude, have occupied the center stage," this picture should be changed).
332. 235- Alexander, supra note 4, at 1064.
333. Singer, supra note 12, at 1025.
334. Id.
335. Id. at 1026. This statement obviously qualifies Singer's acceptance of the numerus clausus principle.
336. Merrill & Smith, Morality of Property, supra note 13, at 1852-1853.
337. Smith, supra note 168, at 971.
338. Singer, supra note 12, at 1026 (footnote omitted).
339. Alexander, supra note 4, at 1066.
340. Smith repeatedly uses the "mechanism" metaphor. See, e.g.. Smith, supra note 168, at 973, 975. 976.
341. Id. at 970.
342. Id.
343. Singer, supra note 12, at 1059.
344. Alexander, supra note 5, at 764.
345. Purdy, A Freedom-Promoting Approach, supra note 12, at 1244-1245
346. See Smith, supra note 168, at 970 (using the term " practicality").
347. Id. at 969 ("Property law provides the overall structure to manage... complexity..., but the need to manage complexity points to the need, at least in theory, for a modular solution.").
348. Id. ("Ultimately, what degree and kind of modularization we need is an empirical question.").
349. Id. at 967, 973.
350. Id. at 974.
351. Id. at 970 (using the example of North Korea).
352. See Singer, supra note 12, at 1051 ("We tend to forget this fundamental purpose of the estates system [outlawing certain prohibited social and political relationships] because custom has evolved so that no one seeks to create feudal or slave relationships today.").
353. See, e.g., id. at 1059 ("There are various ways to think through and justify alternative resolutions" to difficult property questions, but "none of them gives us a mechanical decision procedure to generate an outcome.").
354. Id. at 1061.
355. See Rose, supra note 163, at 580.