Friday, November 13, 2009
Does anyone offer a "pure" theoretical question on their property exam. This semester I assigned 88 pages out of Commodity and Propriety to force students to undertake careful reading in a different context other than cases. So we have weaved in through the semester this theme as it has been appropriate. Then came the question, how was I going to test this material.
Alexander writes: “Commodification had ambiguous implications for the Rule [against perpetuities].” On the one hand, it made sense to conclude that the Rule was consonant with a commodified conception of land, insofar as it made land more readily available to creditors. On the other hand, the commodified conception of property was not strictly an economic idea; more fundamentally, it was part of a broader social vision.” Is the modern approach to the Rule Against Perpetuities a greater reflection of the economic nature of property or the social ordering aspect of property?
Alexander describes the tension of American civic republicanism and English common law institutions in the context of time and history. Alexander writes: “American republican lawyers, including not only Jefferson but virtually everyone who wrote on the subject of Property, answered with a historical understanding of property and individual freedom. Individual autonomy, they said, was secured by individual property rights because the meaning of individual liberation was negatively framed as the repudiation of ‘feudal tyranny’ itself serving as the central metaphor for domination and hierarchy. So long as the meanings of individual autonomy and property and their relation to each other were articulated in terms of a negation, the dilemmas of individualized property rights were avoided. … History (particularly, the feudal past) was a trope by which property and human liberation were signified, a symbol for the past that Americans were transcending.” Explain the Johnson v. M’instosh opinion as either a confirmation or a repudiation of this American Republican Vision.