Law Commons^™

Property As Legal Knowledge: Means And Ends, Annelise Riles

Annelise Riles

This article takes anthropologists’ renewed interest in property theory as an opportunity to consider legal theory-making as an ethnographic subject in its own right. My focus is on one particular construct – the instrument, or relation of means to ends, that animates both legal and anthropological theories about property. An analysis of the workings of this construct leads to the conclusion that rather than critique the ends of legal knowledge, the anthropology of property should devote itself to articulating its own means.

Remedies And The Psychology Of Ownership, Jeffrey J. Rachlinski, Forest Jourden

Jeffrey J. Rachlinski

No abstract provided.

Protecting Endangered Species Without Regulating Private Landowners: The Case Of Endangered Plants, Jeffrey J. Rachlinski

Jeffrey J. Rachlinski

No abstract provided.

Paying Paul And Robbing No One: An Eminent Domain Solution For Underwater Mortgage Debt, Robert C. Hockett

Robert C. Hockett

In the view of many analysts, the best way to assist “underwater” homeowners — those who owe more on their mortgages than their houses are worth — is to reduce the principal on their home loans. Yet in the case of privately securitized mortgages, such write-downs are almost impossible to carry out, since loan modifications on the scale necessitated by the housing market crash would require collective action by a multitude of geographically dispersed security holders. The solution, this study suggests, is for state and municipal governments to use their eminent domain powers to buy up and restructure underwater mortgages, …

Bringing It All Back Home: How To Save Main Street, Ignore K Street, And Thereby Save Wall Street, Robert C. Hockett

Robert C. Hockett

No abstract provided.

A Federalist Blessing In Disguise: From National Inaction To Local Action On Underwater Mortgages, Robert C. Hockett, John Vlahoplus

Robert C. Hockett

While it is widely recognized that the mortgage debt overhang left by the housing price bubble and bust continues to operate as the principal drag upon U.S. macroeconomic recovery, few seem to appreciate just how locally concentrated the problem is. This paper takes the measure of the national mortgage debt overhang problem as a cluster of local problems warranting local action. It then elaborates on one form of such action that the localized nature of the ongoing mortgage crisis justifies - use of municipal eminent domain authority to purchase underwater loans, then modify them in a manner that benefits debtors, …

What The New Treasury Must Do, Robert C. Hockett

Robert C. Hockett

After a number of heady false starts, against the backdrop of threatened financial catastrophe, Congress and the White House enacted a stopgap financial “bailout”plan early in October 2008. From that point onward the “plan” has repeatedly morphed, morphed again, and morphed back through a string of remarkably fleeting guises. One suspects this dynamic will continue, at least for a while, as a new president and Congress find their footing in the first half of 2009.

It Takes A Village: Municipal Condemnation Proceedings And Public/Private Partnerships For Mortgage Loan Modification, Value Preservation, And Local Economic Recovery, Robert Hockett

Robert C. Hockett

Respected real estate analysts forecast that the U.S. is now poised to experience a renewed round of home mortgage foreclosures over the coming six years. Up to eleven million underwater mortgages will be affected. Neither our families, our neighborhoods, nor our state and national economies can bear a resumption of crisis on this order of magnitude.

I argue that ongoing and self-worsening slump in the primary and secondary mortgage markets is rooted in a host of recursive collective action challenges structurally akin to those that brought on the real estate bubble and bust in the first place. Collective action problems …

Accidental Suicide Pacts And Creditor Collective Action Problems: The Mortgage Mess, The Deadweight Loss, And How To Get The Value Back, Robert C. Hockett

Robert C. Hockett

Sustained economic recovery will remain elusive in America, post-crash, until principal is reduced on some 10-13 million underwater home mortgage loans across the nation. Yet in the case of privately securitized loans, these write-downs are all but impossible to carry out on the requisite scale because bubble-era securitization contracts, which now effectively function as suicide pacts among bondholders, would require collective action by millions of geographically dispersed passive investors in order to authorize write-downs or sales out of securitization trusts. The solution, this article suggests, is for state and municipal governments to use their eminent domain powers to buy up …

A Jeffersonian Republic By Hamiltonian Means: Values, Constraints & Finance In An Authentic American Ownership Society, Robert C. Hockett

Robert C. Hockett

This article, the second in a trilogy, interprets American ownership-spreading programs past and present under the aspect of a comprehensive theory of "the American ownership society" (OS) developed in its predecessor article, titled Whose Ownership? Which Society? It also identifies what appears to be a significant gap in our efforts to become a comprehensive OS thus far. By early in the 20th century, we had developed and implemented a number of highly innovative and successful programs dedicated to the task of spreading human and nonhuman capital (in the form of arable land in particular) quite broadly. Since about the 1930s, …

History As Ideology In The Basic Property Course, Gregory S. Alexander

Gregory S Alexander

Why has history played such a prominent role in the basic property course in the twentieth century? Such a loaded question requires some explanation. Legal history is doubtless used in all the first-year common-law courses, but I have the impression that since Langdell's time it has been more conspicuous in property than in the other basic courses. At least let us provisionally accept this rather dogmatic assertion in order to examine the more interesting questions: what function has the historical perspective served in property, and what other function might history serve in the course?

Pensions And Passivity, Gregory S. Alexander

Gregory S Alexander

This article discusses how modem fiduciary law has extended equity's tradition of constructing ownership as passive through the corporate pension system. It examines how the corporate pension system as a mode of owning pooled capital is a new stage of passive ownership. This stage creates a different aspect of the familiar problem of separating control from beneficial ownership. Berle and Means argued that the problem that the separation of control from ownership created was economic. The interests of managers and shareholders in the modern corporation diverge, and, they argued, this divergence diminishes the overall efficiency of the modern economy, dominated …

Michelman As Doctrinalist, Gregory S. Alexander

Gregory S Alexander

Presented at the 2004 Brigham-Kanner Property Rights Conference.

Dilemmas Of Group Autonomy: Residential Associations And Community, Gregory S. Alexander

Gregory S Alexander

We are a society of groups. De Tocqueville's observation that the principle of association shapes American society remains as valid today as it was in the mid-nineteenth century. For us, as for others, the vita activa is participation in a seemingly limitless variety of groups. The importance of group activity in our national character has strongly influenced the agenda of political questions that recur in American political and legal theory. One of the fundamental normative questions on this agenda concerns the proper relationship between groups and the polity. To what extent should the polity foster connections between associations and the …

The Limits Of Property Reparations, Gregory S. Alexander

Gregory S Alexander

Human history is replete with examples of unjustified expropriations of property by conquering states and other transitory regimes. Only in modern times, however, have nations attempted systematically to remedy historical injustices by providing reparations to the dispossessed owners or their successors. From the aboriginal peoples of the Antipodes to the Native Americans of Canada and the U.S. to the European victims of the German and Soviet communism, groups of people who were stripped of their land and possessions by fraud or force are demanding, and in many cases getting, reparations for these injustices. The thesis of this paper is that …

Ownership And Obligations: The Human Flourishing Theory Of Property, Gregory Alexander

Gregory S Alexander

Private property ordinarily triggers notions of individual rights, not social obligations. The core image of property rights, in the minds of most people, is that the owner has a right to exclude others and owes no further obligation to them. That image is highly misleading. Property owners owe far more responsibilities to others, both owners and non-owners, than the conventional imagery of property rights suggests. Property rights are inherently relational, and because of this characteristic, owners necessarily owe obligations to others. But the responsibility, or obligation, dimension of private ownership has been sorely under-theorised. Inherent in the concept of ownership …

Eminent Domain And Secondary Rent-Seeking, Gregory S. Alexander

Gregory S Alexander

No abstract provided.

Takings, Narratives, And Power, Gregory S. Alexander

Gregory S Alexander

"The Regulatory Takings Problem" is the title given to a story, or narrative, that has become prominent in the literature on just compensation issues. The story is one of power and fear. It is about a perceived imbalance of power between the two groups of actors involved in the process of public land-use regulation--private landowners and government regulators. It depicts scenarios of past or threatened abuse of power by local land-use regulators, and it looks to the takings clause generally and regulatory takings doctrine specifically as crucial corrective devices, essential to set the power imbalance aright. The dominant narrative describes …

Property As A Fundamental Constitutional Right? The German Example, Gregory Alexander

Gregory S Alexander

No abstract provided.

Ademption And The Domain Of Formality In Wills Law, Gregory S. Alexander

Gregory S Alexander

The 1990 revision of the Uniform Probate Code ("UPC") marks the second stage of probate reform in the second half of this century. The first stage was the adoption of the original UPC. While it included some changes in the substantive law of wills, its primary objective was to simplify probate procedure. The second stage, by contrast, focuses almost entirely on the substantive law of wills and will substitutes. It changes several of the primary rules of wills law, including the traditional rule requiring strict compliance with execution formalities. It also makes significant changes in the subsidiary rules of wills …

A Statement Of Progressive Property, Gregory S. Alexander, Eduardo M. Peñalver, Joseph W. Singer, Laura S. Underkuffler

Gregory S Alexander

What would a progressive theory of property look like? Although such a theory might take root within any number of specific normative frameworks, this Statement of Progressive Property outlines several features progressive theories of property should have in common. The Statement argues that we should understand property as both an idea and an institution, that property confers power and shapes community, both in its legal and social dimensions, and that property should be understood as serving plural and incommensurable values whose accommodation is possible through reasoned deliberation and practical judgment.

Alternative Models Of Ante-Mortem Probate And Procedural Due Process Limitations On Succession, Gregory S. Alexander, Albert M. Pearson

Gregory S Alexander

Ante-mortem probate stands as a significant recent development in the American law of wealth succession. It confronts a problem that seriously impairs our probate system, the depredatious will contest, and promises to help revitalize the probate process. Already enacted in several states and currently under active study by the Joint Editorial Board of the Uniform Probate Code and the National Conference of Commissioners on Uniform State Laws, ante-mortem probate is likely to be widely implemented in some form. But while legislators and academics alike support ante-mortem probate as a general idea, disagreement has emerged over the specific form it should …

Time And Property In The American Republican Legal Culture, Gregory S. Alexander

Gregory S Alexander

Modern historians including J.G.A. Pocock and Gordon Wood have demonstrated the degree to which revolutionary American political discourse incorporated "civic republican" notions of virtue, property, and citizenship that promoted stable land ownership and active political participation. These historians also have argued that the republican view soon gave way to the now-dominant liberal view that champions the alienability of property and private over public life. Professor Alexander argues that this history is too neat. In fact, American republicanism contained unreconciled "dialectical" tensions—between individual rights and societal goals, stability of ownership and wealth redistribution, historical continuity and change—that, though now expressed in …

Ten Years Of Takings, Gregory Alexander

Gregory S Alexander

No area of property law has been more controversial in the past decade than takings. No aspect of constitutional law more sharply poses the dilemma about the legitimate powers of the regulatory state than the just compensation question. No question concerning constitutional property is more intractable than what sorts of government regulatory actions constitute uncompensated "takings" of private property. Limitations of space, not to mention my own ambivalence about many of the issues, prevent me from developing a complete normative theory of the proper scope of the Takings Clause. My aim here is vastly more modest: to outline the basic …

"Takings" Jurisprudence In The U.S. Supreme Court: The Past 10 Years, Gregory S. Alexander

Gregory S Alexander

No area of American property law has been more controversial in recent years than the government regulation of uses of private property. No aspect of American constitutional law more sharply poses the dilemma about the legitimate powers of the regulatory state than the requirement that the government pay compensation for takings of property. The purpose of this essay is to acquaint the non-American legal scholar who is unfamiliar with the recent developments in the United States Supreme Court “takings” jurisprudence. The essay does not presuppose any background knowledge about either American constitutional or property law. Instead it attempts to familiarize …

Commentaries: The Ambiguous Work Of “Natural Property Rights”, Gregory S. Alexander

Gregory S Alexander

The three fascinating papers by Dick Helmholz, Jim Ely, and Mark Tushnet prompt me to ask, why was there so much talk among late 18th and 19th century American lawyers about property as a "natural" right and why has the language persisted today? More specifically, what work is the rhetoric of "natural property rights" intended to do? This is not the proper occasion for developing anything like complete answers to those questions, but I do want to offer three lines of thought that might begin to approach a fuller explanation of the puzzling persistence of natural-property-rights talk.

Comparing The Two Legal Realisms—American And Scandinavian, Gregory S. Alexander

Gregory S Alexander

No abstract provided.

The Concept Of Property In Private And Constitutional Law: The Ideology Of The Scientific Turn In Legal Analysis, Gregory S. Alexander

Gregory S Alexander

In recent academic writing on the general problem of constitutional protection of property under the takings clause and due process clauses, a mode of analysis has emerged that is evidently different from the conventional analysis of constitutional property claims. In general terms, this new mode is characterized by an effort to analyze claims on an openly teleological and systematic basis. To be sure, this mode is not exclusively of recent origin. But it is a discernible trend in the body of scholarship that discusses constitutional protection of property in the context of previously unfamiliar sorts of private economic interests. Most …

Properties Of Community, Gregory S. Alexander, Eduardo M. Peñalver

Gregory S Alexander

Theories of property presuppose conceptions of community, and of the individual's relationship to community. In contrast to the dominant theories of community at work within most Anglo-American property theorizing, which view community obligations as fundamentally instrumental and contractual, we propose in this paper a theory that views the relationship between the individual and community as constitutive and substantive. Human beings' dependence on others to flourish imposes on political communities and their individual members a shared obligation to foster and contribute to the creation and maintenance of those structures necessary for that flourishing. This obligation in turn qualifies individual rights of …

The Conservatorship Model: A Modification, Gregory S. Alexander

Gregory S Alexander

Reform-minded probate lawyers have discussed the idea of ante-mortem probate for many years. Yet, owing to several seemingly unavoidable defects, it has never attracted widespread support and only recently has been implemented anywhere in the United States. In his article, Living Probate: The Conservatorship Model, Professor John Langbein has eliminated many of those defects and has made the idea much more feasible. In doing so, he has contributed to the development of simple, convenient, and efficient systems of probate. However, his proposal introduces new flaws that threaten the practical working of his procedural model. Basically, Langbein proposes that living probate …