Cornell Law Review Volume 94 Issue 4

A Statement of Progressive Property

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The Social-Obligation Norm in American Property Law

This Article seeks to provide in property legal theory an alternative to law-and-economics theory, the dominant mode of theorizing about property in contemporary legal scholarship.  I call this alternative the social-obligation theory. I argue that American property law, both on the private and public sides, includes a social-obligation norm, but that this norm has never been explicitly recognized as such […]

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Land Virtues

This Article has two goals. First, I explore some of the descriptive and normative limitations of certain law-and-economics discussions of the ownership and use of land. These market-centered approaches struggle in different ways with features of land that distinguish it from other “commodities.” The complexity of land—its intrinsic complexity, but even more importantly the complex ways in which human […]

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Virtue and Rights in American Property Law

In Plato’s Republic, Socrates persuades his conversationalists to help him construct a city organized around commerce.  Glaucon, who has an idealist streak, dismisses this city as a “city of pigs.”  In response, Socrates sketches for Glaucon an ideal city ruled by the most virtuous citizens—the philosophers.  To make the city as just and harmonious as possible, the philosophers […]

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A Few Questions About the Social Obligation Norm

I applaud Gregory Alexander for proposing an innovative view of property, one focused on the obligations of ownership.  His project locates what I think of as the liberal aim of personal freedom (meaning both formal autonomy and real opportunity) within a social context of distributive choices and conceptions of mutual obligation.  That is, he is asking what […]

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Mind the Gap: The Indirect Relation Between Ends and Means in American Property Law

More than most areas of law, property causes impatience.  Most of us have a sense that property is doing something important, but it does it in a somewhat mysterious way.  Yes, laypeople have a clear sense of who owns what, and scholars can more or less expound the welter of rules that come under the heading of “property.”  But […]

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Should Property Scholars Drop Economics for Virtue? A Skeptical Comment

Land Virtues is a timely appeal to adopt a new normative framework to guide land-use regulation. As I write, policymakers in Washington are busily abandoning long-standing policy approaches in a desperate attempt to minimize the damage from what many are calling the worst financial crisis since the Great Depression. As stock prices crumble and credit becomes harder to access, deregulation […]

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Democratic Estates: Property Law in a Free and Democratic Society

Property is a social and political institution and not merely an individual entitlement.  For this reason, the legal structure of property reflects norms and values that are not fully expressed by reference to the market value of property rights.  Consider the current subprime mortgage crisis in the United States: The family home is the core of the American Dream, and […]

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The Complex Core of Property

In this Reply, I respond to critiques of my article, The Social-Obligation Norm in American Property Law, by Professors Henry Smith, Eric Claeys, and Jedediah Purdy.   To read the complete Reply, click “VIEW PDF” below.

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