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Tuesday, March 9, 2010

Davidson and Dyal-Chand on Property in Crisis

Nestor M. Davidson (Colorado) and Rashmi Dyal-Chand (Northeastern) have posted Property in Crisis on SSRN.  Here's the abstract:

Property law generally develops gradually, with doctrine slowly accreting in the interstices of daily conflict and the larger culture of property likewise emerging at a glacial pace. In times of crisis, however, fundamental questions about the nature of ownership and the balance between the individual and the state instantiated in the structure of property rise rapidly to the surface. Our current economic crisis - the deepest since the Great Depression - is no exception.

This economic crisis, more than many in our history, began with property, sparked in no small measure by structural flaws in the residential market and an ownership society that advocated risk-taking with insufficient heed for consequences. Property has likewise played a palpable role in the still-emerging policy response, with concerns about creeping socialism and fears of nationalization shaping regulatory design.

As a result, this crisis has unsettled long-stagnant tensions in property theory. It is providing a vivid reminder of the interconnected nature of property while recalibrating the role of property as a repository for risk and reward. These conceptual shifts have brought the state’s role in shaping property to the fore, starkly - albeit perhaps temporarily - placing great weight on the public, communitarian, and even punitive aspects of the nature of property. This crisis thus provides a powerful window to assess the current state of our property discourse and begin to glean lessons about the directions in which property may evolve in the aftermath.

Although scholars have begun to grapple with the causes and some of the particular consequences of the current crisis, there has been relatively little theoretical engagement with the role of property norms in the origins of, and in the regulatory response to, the crisis. By identifying the intersection of crisis and property theory with greater clarity, this Article lays the groundwork for normative efforts moving forward. It holds broader lessons as well for understanding the contingent nature of legal change and the structure of one of our most foundational social institutions.

Ben Barros

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