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Property, Morality, And Moral Psychology: Comments On Gerhart’S Property Law And Social Morality, Dave Fagundes
Property, Morality, And Moral Psychology: Comments On Gerhart’S Property Law And Social Morality, Dave Fagundes
Texas A&M Journal of Property Law
My comments will proceed in two parts. In Part I, I will briefly describe and summarize the study of moral psychology, indicating how it might apply to property law. And in Part II, I will analyze Property and Social Morality through the lens of moral psychology, showing how Professor Gerhart’s project may be advanced through a richer understanding of the content of our ethical beliefs about property and the psychological mechanisms that give rise to them.
From Social Recognition Of Property To Political Recognition By The State: Peter Gerhart’S Property Law And Social Morality And The Evolution Of Positive Rights, Christopher Serkin
From Social Recognition Of Property To Political Recognition By The State: Peter Gerhart’S Property Law And Social Morality And The Evolution Of Positive Rights, Christopher Serkin
Texas A&M Journal of Property Law
This short response argues that positive property rights—especially in a modern regulatory state—are inherently redistributive. When the State has a choice between different regulatory strategies for achieving public goals, constitutional limits like the Takings Clause should not rely on formal categories but must instead account explicitly for distributive concerns. At the end of the day, the State is an active, not passive, player in the definition of property rights, a role that comes with both constitutional limitations and requirements.
Reflections An Property As A Social Good, Peter M. Gerhart
Reflections An Property As A Social Good, Peter M. Gerhart
Texas A&M Journal of Property Law
In this reflection, Professor Gerhart relates the ideas of the symposium contributors to his goals in writing Property Law and Social Morality. In doing so, he reflects, in Part I, on his attempt to separate politics from private law property theory, and, in Part II, on how his framework theory provides a mechanism for integrating ideas about the content of legal doctrine from a wide variety of intellectual disciplines. In the first Part of his reflection, Professor Gerhart comments on the corrective justice/distributive justice distinction, related theories of human flourishing, and on rights theories. In the second Part of the …
On Corrective Justice And Rights In Property: A Comment On Property Law And Social Morality, Eric R. Claeys
On Corrective Justice And Rights In Property: A Comment On Property Law And Social Morality, Eric R. Claeys
Texas A&M Journal of Property Law
In this Review, I hope to critique specific parts of Property Law and Social Morality that fairly represent these various reactions. In Part I, I explain the basis for my first cheer, and situate Property Law and Social Morality in relation to other prominent moral theories of property. In Part II, I study one representative example confirming my second cheer about Gerhart’s cross-pollination experiment—his critique of economic “evolutionary” or “Demsetzian” accounts of property in chapter 4. In Part III, I offer what I hope is a friendly amendment to Property Law and Social Morality, to clarify several possible confusions about …
Moral Obligation And Natural Capital Commons On Private Land: Perspectives On Peter Gerhart’S Property Law And Social Morality, Blake Hudson
Moral Obligation And Natural Capital Commons On Private Land: Perspectives On Peter Gerhart’S Property Law And Social Morality, Blake Hudson
Texas A&M Journal of Property Law
This Article makes a simple and hopefully straightforward attempt to demonstrate how Gerhart’s property theory fills the gaps in privatized commons resource theory. Part II describes in more detail privatized commons resource theory, while Part III discusses Gerhart’s theory both generally and more specifically in the context of natural resources management. This Part first analyzes Gerhart’s explicit grappling with the commons broadly, and more directly wrestles with how his theory lays a legal framework for addressing temporal commons and the interests of future generations in natural capital. Next, this Part discusses the role of positive public law in manifesting society’s …
A Moral Theory Of Property, Laura S. Underkuffler
A Moral Theory Of Property, Laura S. Underkuffler
Texas A&M Journal of Property Law
Gerhart’s theory of “property as tort” is simple, bold, and intuitively compelling. Just as actions that an individual voluntarily undertakes can impose moral obligations in tort, so actions that an individual voluntarily undertakes can impose moral obligations in property. Finally, we have a simple, understandable basis on which other-regarding obligations can be imposed upon property owners, for the externalities that they cause. But does it capture all that is involved in the ownership of property? Put another way, does Gerhart reckon with all of the implications of his theory in the complex world of property ownership?
Recognition And Reflection, Kristen Barnes
Recognition And Reflection, Kristen Barnes
Texas A&M Journal of Property Law
This Article focuses on the meaning of the system Gerhart describes by unpacking some of the conclusions he draws regarding legitimacy, cooperation, and morality. The Article also evaluates the framework he proposes for achieving decisions that are “fair and efficient.”3 The Article concludes that Gerhart’s theory significantly advances the project of incorporating equalizing concepts into property law which should result in decisions that are more equitable from a participatory and distributive perspective. However, there are aspects of the theory that do not capture the discordant elements of property systems and that do not unearth the inequalities at the root of …
What Is Owed: Obligation’S Relevance In Property And Intellectual Property Theory, Kali Murray
What Is Owed: Obligation’S Relevance In Property And Intellectual Property Theory, Kali Murray
Texas A&M Journal of Property Law
This Essay explores how Gerhart’s theory of social obligation in property law offers us an innovative way to characterize key theories in patent law. Consequently, throughout this Essay, I employ lessons from patent law that provide a concrete example of how obligations may work in various doctrinal subjects. Part I outlines the basic contours of Gerhart’s theory of obligation. Part II outlines the three basic functions of obligation in property and intellectual property theory. It is hoped that this Essay will serve a substantive function by continuing the ongoing dialogue between property law and intellectual property law in ways that …