Wednesday, June 10, 2009

Cornell Law Review on Progressive Property

The Cornell Law Review has a major symposium on "progressive property."  It begins with a joint statement by Greg Alexander, Eduardo M. Penalver, Joseph William Singer, and Laura S. Underkuffler.  Then follow articles on The Social-Obligation Norm in American Property Law by Gregory S. Alexander and Land Virtues by Eduardo M. PeƱalver.  

The responses are Virtue and Rights in American Property Law by Eric R. Claeys; A Few Questions About the Social Obligation Norm by Jedediah Purdy; Mind the Gap: The Indirect Relation Between Ends and Means in American Property Law by Henry E. Smith; Should Property Scholars Drop Economics for Virtue?  A Skeptical Comment by Katrina M. Wyman.  There is also an essay, Democratic Estates: Property Law in a Free and Democratic Society by Joseph William Singer and, finally, a relpy, The Complex Core of Property, by Gregory S. Alexander.

Alexander's lead article deserves a lot of attention; I hope to devote some time to it later in the summer, though I'll add two things right now.  First, it comes at a time when the political winds may be (emphasis on may be) blowing his way.  So Alexander may be in a position to have his ideas heard in a way that hasn't been possible for several decades.  Second, I think that one could--and in fact Alexander has in some ways done this already in Properiety and Commodity--find a lot of the pieces of what he speaks about as the social obligations of property in American history.  For me as a historian, one interesting question is which pieces of property's role--as social obligation or something else--has been dominant over time.  Lots of fun to be had in talking about all this!

Alfred L. Brophy

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Let us all hope that these essays mark a new turn in property scholarship: that we should pay careful attention to the "embededness" of property institutions within a broader context of political economy and social power; that we should be aware of the distributive-justice consequences of property rules; and that we should celebrate the social-obligation strand in property law and culture. Three cheers to these essays for striking a (fatal?) blow to the heart of the beast which is the "law-and-economics" approach to property!! Unfortunately, though, I suspect that beast still has some life in it?!

Posted by: Kurt Paulsen | Jun 18, 2009 11:31:52 AM

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