Eduardo M. Peñalver

An Introduction to Property Theory

This book surveys the leading modern theories of property – Lockean, libertarian, utilitarian/law-and-economics, personhood, Kantian, and human flourishing – and then applies those theories to concrete contexts in which property issues have been espe- cially controversial. These include redistribution, the right to exclude, regulatory takings, eminent domain, and intellectual property. The book highlights the Aristotelian human flourishing theory of property, providing the most comprehensive and accessible introduction to that theory to date. The book’s goal is neither to cover every conceivable theory nor to discuss every possible facet of the theories covered. Instead, it aims to make the major property theories comprehensible to beginners, without sacrificing accuracy or sophistication. The book will be of particular interest to students seeking an accessible introduction to contemporary theories of property, but even specialists will benefit from the book’s lucid descriptions of contemporary debates.

Property and Community

Introduction: Property and Community Gregory S. Alexander & Eduardo M. Penalver Chapter 1: The Objects of Virtue David Lametti Chapter 2: Re-Imagining Takings Law Hanoch Dagan Chapter 3: How Property Norms Construct the Externalities of Ownership Joseph William Singer Chapter 4: Property and Marginality A. J. van der Walt Chapter 5: Facts on the Ground Nomi Maya Stolzenberg Chapter 6: Commons and Legality Avital Margalit Chapter 7: The Legal Order of the Queue Kevin Gray

Is Land Special? The Unjustified Preference for Landownership in Regulatory Takings Law

In Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), the Supreme Court, by limiting the scope of its new per se rule to real property, made clear that it viewed property in land as entitled to a higher degree of protection against regulatory takings than other forms of property. In so doing, it made explicit what had been an implicit favoritism towards real property in the modern law of regulatory takings. The Court gave two reasons in Lucas for its favoritism towards land: the historical treatment of land in the American legal tradition and the expectations of property owners themselves. Neither of these explanations, however, can carry the weight of the Supreme Courts distinction. Nor can the Court turn to normative theory in support of its position. Libertarianism, utilitarian theory, personhood theory, public choice theory, and natural law theory, which together constitute a comprehensive cross-section of the normative accounts of property and takings law, all fail to support a categorical distinction between real and personal property in the regulatory takings context. Because favoritism towards land within regulatory takings law is unjustified, the Lucas doctrine (and, indeed, regulatory takings doctrine as a whole) should apply equally to real and personal property or not at all. The Courts own apparent discomfort with the implications of applying Lucass per se rule in the context of personal property suggests problems with the Lucas rule itself. And, to the extent that the modern expansion of regulatory takings law has been made more palatable by its artificially narrow focus on land, the unjustified nature of that narrow focus may be a reason for rethinking that expansion.

An Introduction to Property Theory: Locke and Libertarian Theories of Property

No single person has had more of an impact on property thought in the English-speaking world than John Locke. Among contemporary theorists, however, Locke’s influence is felt most directly among property rights libertarians. This is somewhat ironic, because these libertarians are able to rely on Locke only by excising from his theory several of its foundational elements. In this chapter, we will describe the outlines of Locke’s theory and explore some of the debates over its cogency and meaning. LOCKE’S CONTEXT Locke’s theory of property is laid out in his Two Treatises of Government , with the bulk of the relatively brief discussion appearing in the fifth chapter of the second treatise. (There are, as we will see, important elements of his discussion in the first treatise as well.) In thinking about Locke’s theory, it is helpful to understand something about the debates in which he likely understood himself to be participating. Although the Two Treatises was not published until 1689, in the immediate aftermath of the Glorious Revolution, most commentators agree that the work was actually written several years earlier, between roughly 1679 and 1682, during the Exclusion Crisis, in which the Whigs, led by the First Earl of Shaftesbury (Locke’s patron), attempted to prevent the Catholic James, Duke of York, from inheriting the throne.

An Introduction to Property Theory: Utilitarian Property Theories

As a leading property law casebook puts it, “[u]tilitarian theory is, without doubt, the dominant view of property today, at least among lawyers.” This is certainly true, but the story is also significantly more complicated. Although utilitarian analysis provides tremendous insight into the institution of property, it raises a number of important questions when treated as a comprehensive theory of property. Moreover, the term utilitarian masks a great deal of intellectual and methodological diversity. Rather than a single utilitarian theory, it is more appropriate to speak of a number of utilitarian (or even utilitarian-influenced) property theories . For our purposes, these utilitarian-influenced theories include many contemporary theories that refer to themselves as economic or welfarist . In this chapter, we will explore the broad outlines of these theories, focusing on their points of overlap and also on key areas of disagreement. A BRIEF INTRODUCTION TO UTILITARIANISM Utilitarianism is a consequentialist moral philosophy, that is, one that judges the rightness and wrongness of actions or rules or institutions by the goodness and badness of the consequences they bring about. Utilitarianism assesses the goodness or badness of consequences in terms of their tendency to maximize utility or welfare. Bernard Williams has observed that “[t]he fathers of utilitarianism thought of it principally as a system of social and political decision,” as opposed to “a system of personal morality.” As Williams correctly notes, it is sometimes hard to keep these two domains apart. Nevertheless, it is plainly as a theory of social choice that utilitarianism has been deployed in the context of property theory.