Hanoch Dagan

The Craft of Property

Notwithstanding the modern description of property as a bundle of sticks, the forms of property still exert significant influence in legal analysis. This Article claims that both understandings of property are necessary and can indeed be incorporated into a realist approach to property. In this approach the forms of property are helpful starting points of legal analysis, for they constitute societys existing property institutions that serve as important default frameworks of interpersonal interaction. The bundle metaphor, in turn, prevents the stagnation of these institutions by allowing - indeed requiring - their normative (and properly contextual) reevaluation and possible reconfiguration. This Article presents the realist approach to property through analysis of United States v. Craft, a 2002 Supreme Court decision involving the vulnerability of marital property to the claims of creditors of one spouse. The majority and dissent in Craft present conceptions of property as forms and property as bundles that cannot be reconciled and are fraught with difficulties. This Article develops these competing accounts and demonstrates the way in which these accounts - and the realist approach to property that connects them - can inform the analysis of marital property and, more particularly, of the rights of various types of creditors of one spouse in the marital estate. The Article concludes with an application of the realist approach to property to some difficult questions raised by the contemporary debate over the Numerus Clausus principle.

The Social Responsibility of Ownership

Gregory Alexanders new book The Global Debate over Constitutional Property provides a unique opportunity to reflect upon the functions of comparative law and the nature of ownership. This Comment highlights the role of comparative law in upsetting laws tendency to turn contingency into necessity, but also warns against the illusion that comparative law can yield normative conclusions without an independent and critically constructive legal inquiry. The Comment offers such an inquiry in order to substantiate Alexanders call to adopt the German constitutional model of incorporating social responsibility into the concept of property. It studies the reasons as well as the potential risks entailed by such a move, and outlines the contours of a takings doctrine that takes the social responsibility of property owners seriously.

In Defense of the Good Samaritan

Claims made by good samaritans for reimbursement of expenses, remuneration for time, effort, and expertise expended, and compensation for losses incurred as a consequence of their intervention have traditionally been treated at common law with reluctance and, where the protected interest is proprietary, even with hostility. Two normative premises have been suggested for this traditional, yet enduring, attitude: the concern with preserving personal liberty and the precept that altruism should be a reward unto itself. This Article challenges both premises and maintains that rather than being antagonistic to claims of good samaritans, these premises supply normative justification for allowing (in appropriate circumstances) these claims. Hence, both personal liberty and altruism ? interpreted either as respect for others, as commitment to the inculcation of concern for others, or as sympathetic concern for the genuine interests of others ? require reform of the prevailing doctrine.

Restitutionary Damages for Breach of Contract: An Exercise in Private Law Theory

This article focuses on cases of restitution within contract, investigating the normative desirability of enabling a promise to pursue the profits derived by the promisor through a breach of contract as an alternative pecuniary remedy of wide applicability. Situated at the frontier of both contractual and restitutionary liability, the question of whether restitutionary damages for breach of contract should be available has received a considerable amount of attention. This article makes a critical examination of the normative groundings that have been proposed for and against awarding this pecuniary remedy. This article arrives at two significant conclusions. The first is deconstructive. Parts I and II critique two conventional arguments often raised in the debate over restitutionary damages. These Parts raise doubts as to the ability of these arguments to substantiate the doctrinal conclusions they purport to support. I claim that both promise-keeping and unjust enrichment are neutral between rules offering restitutionary damages and denying such awards. The significance of the results of this analysis extends beyond the specific questions at hand, since these arguments dominate many of the debates surrounding private law theory. The second conclusion reached is reconstructive. Parts III, IV and V present three normative considerations that are more helpful: protection of proprietary rights, enhancement of efficiency, and good faith. Here an attempt is made to reconceptualize the conventional arguments for the derivation of legal rules from these normative prescriptions. From this reconceptualization, we realize that in order to settle the debate over restitutionary damages for breach of contract, a choice must be made between the instrumental conception of contract and its more cooperative alternative. Thus, it emerges that here, too, just as in the case of many other legal issues, the persistent need to choose between two conflicting social visions cannot be avoided.

Conflicts in Property

Property concerns conflicts both conflicts between individuals and conflicts of interest. Conflicts between individuals have long been the paradigmatic property focus. According to this view, property debates circle around issues of autonomy and productive competition. But this is an impoverished view. In this Article, we shift attention to conflicts of interest. By helping people manage conflicts of interest, a well-governed property system balances interdependence with autonomy and productive cooperation with productive competition. We identify three mechanisms woven throughout property law that help manage conflicts of interest: (1) internalization of externalities; (2) democratization of management; and (3) de-escalation of transactions. We show that property law predictably selects among these mechanisms depending on the ratio of economic to social benefits that people seek from a group resource. When economic concerns predominate, property law typically uses contribution-based allocations of rights and responsibilities mediated by formal, foreground procedures, while at the social end of the spectrum we tend to see more egalitarian substantive rules operating as an informal, background safety net.

Property Theory, Essential Resources, and the Global Land Rush

Recent large scale transnational transfers of land threaten members of rural communities in the developing world who rely for food and shelter on access to land they lack formal title to. Contrary to some of the conventional wisdom, this Essay argues that liberal property theory provides important inroads for addressing this challenge. Properly interpreted, property requires an ongoing (albeit properly cautious) redefinition of existing property institutions as well as the design of new ones, in light of changing circumstances and in response to the liberal property values of personal independence, labor, personhood, aggregate welfare, community, and distributive justice. These property values imply that the new, transnational land market must accommodate a property institution for essential resources that secures the individual and collective rights of pre-existing users. Securing these rights does not require that we reject the logic of competitive markets. Quite the contrary. One promising path for realizing these rights is to strengthen competition through properly designed auctions that ensure the members of local communities choices between outright sale offers and equity investment in local cooperatives.

Judges and Property

This Essay considers the question of whether judges should refrain from engaging in the development of property law and leave the field to the legislatures. Like previous studies, I address both the expected performance of the judiciary in property matters and its democratic legitimacy, considering the features characteristic of property. But while others have advocated judicial passivity in the creation and modification of property rights, I argue that, subject to a few exceptions dealing with general limitations of judge-made law, judges should not be excluded from the drama of property law. Indeed, the unique features of adjudication, at least in the “Grand Style” of the common law tradition, make it an important source for the ongoing critical and constructive process of reshaping property institutions by challenging the desirability of their normative underpinnings, their responsiveness to the social context in which they are situated, and their effectiveness in promoting their contextually examined normative goals.