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Property’s Contingent Categorization


Nestor Davidson is Albert A. Walsh Chair in Real Estate, Land Use, and Property Law and the Faculty Director of the Urban Law Center at Fordham University School of Law

This is part of our symposium on Hanoch Dagan’s book, A Liberal Theory of Property. For a concise version of Dagan’s argument, see this restatement. Image credit: Sam Abell, National Geographic.

I would dearly love to live in Hanoch Dagan’s world. Like its author, it is a generous place, dedicated to attractive values, and it seems, by all reports, to be populated by legal systems where the is and the ought can, somehow, eventually harmonize. Because the world the rest of us live in is a messier place, where political struggles and the collective construction of social institutions complicate property’s possibilities, there is reason to be both inspired and a little skeptical of Dagan’s optimism.

Dagan’s particular argument about structural pluralism is an Panglossian attractive nuisance. Scholars have long grappled with why property law coalesces around a relatively limited set of categories—the fee simple absolute, landlord-tenant and the lease, marital property, various business organizations, the trust, servitudes, and the other items on the numerus clausus menu. As Dagan rightly observes, property law in practice evinces neither a singular Blackstonian absolutist default with only peripheral governance exceptions nor does it consist of an ad hoc, troublingly unsticky, endlessly malleable bundle of rights. We thus have a structural puzzle regardless of the substantive content of any given property type, although one that requires accounting as well for the diversity of values and pragmatic ends embodied in each type. Dagan provides a novel way to make sense of the puzzle, but it is one that does not quite capture the deep pluralism of property.

Dagan argues that property’s resort to standard types serves to create “default frameworks of interpersonal interaction regarding various resources,” (6) offering a meaningful, but crucially circumscribed, set of delineated options to foster the ur-value of property law: self-determination.  A core pillar of a liberal polity’s property law must be an “inventory of property types offering people real choice.” (4) To Dagan, moreover, the internal substance of each form reflects specific human situations, expressing distinctive underlying normative commitments.  Dagan thus offers an explanation for what shapes the content of, say, marital property, why liberal policy requires something like a category of marital property, and why a property law dedicated to autonomy might tolerate limitations on autonomy not reflected in reciprocity—again a vision of structural, but not value, pluralism. (Dagan is not entirely agnostic with respect to the configuration of individual types—rather, he argues, there are categories that cannot be justified even within an autonomy-advancing structural pluralism because the category is relationally unjust. (89.))

Here’s the problem, though. Property’s categories are more contingent and contested than the argument from structural pluralism seems to support, notwithstanding Dagan’s argument for a new, residual category that would allow idiosyncratic specialization to be recognized by the state.  The contingency of the content of the forms and even contestation about whether to add or eliminate forms means that—at the level of design—property law’s tendency to coalesce into types risks being autonomy undermining rather than autonomy enhancing. (We can set aside for this brief response the question whether centrality of individual autonomy, self-determination, and self-authorship as values accurately captures property law’s rich normative pluralism.)

In some instances, specific types represent the long accretion of pragmatic and normative change—landlord-tenant law with its shifts over time, many aspects of marital property (of which there are several forms), but also even the fee simple absolute, which was once neither simple nor absolute.  Other forms are much less evolutionary and more an affirmative response to the felt necessity for a programmatic vessel to advance some goal.  Forms of common-interest community, including condominiums, often resulted from legislation that involved not only value judgments but also political compromise.

Regardless of their origins, all of the forms of property serve over time as the locus of contestation.  Substantive limitations on the authority the state grants to property holders is often form-agnostic (one cannot use property to harm others no matter what form it comes in, for example), but the regulative choices embodied in property law often use the vehicle of a specific property form (say, “the lease”) to advance normative and practical objectives most relevant to a given type of context. (This can then lead to kinds of regulatory arbitrage where parties may seek to avoid the strictures of a given form, as with, say the way long-term contracts for deed can replicate much of the structure of mortgage lending without attendant consumer protections.) Dagan argues that each form must be “guided by one robust animating principle that can effectively consolidate expectations and clearly express a coherent normative ideal,” (91, 102) but that assumes a coherence that rarely actually exists and is very hard in practice to achieve.

As much as there might be some advantages (especially if we could appoint Dagan to the position), we simply have no omniscient liberal watchmaker tinkering with the universe of property types.  Instead, what we have are historically embedded and institutionally specific legislatures, courts, agencies, private actors, and other legal stakeholders who look to the forms as one venue to win arguments, play out politics by other means, and muddle through making sense of irreconcilable values and practical problems. Structural pluralism might be an attractive justification to retrofit onto the results of this process, but the menu that results from the process of contestation—guided by values that may have little do with calibrating shared expectation—may be entirely at odds with the foundations of the life story of any given person looking to property to advance their self-determination. In other words, at some level of abstraction, I would readily agree that it is great to have a menu to choose from in many situations, rather than beginning with the paralyzing force of infinite choice, but that doesn’t mean that I’m happy with what’s on offer in a steakhouse rather than at my local organic farm-to-table vegetarian restaurant.  A menu’s a nice thing to have, but menus can offer up very different servings.

Can we reconcile the messy reality of property’s contingent categorization with Dagan’s commitment to autonomy?  Perhaps, and one would hope so.  But to do so requires not just an account of what standards we might apply to property laws in themselves but also an account of who gets a say in making those standards and those laws.  Dagan, of course, does not ignore the reality of how property law is made, focusing on the comparative institutional advantages of courts and legislatures to make change in property. As he rightly notes, a precondition to the legitimacy of state power—in property law as everywhere else—is, to use his term, “co-authorship” by the people. (156) But if the forms are more of a focal point for contestation and less an embodiment of normatively coherent default categories that can be scaled (by whom? in what way?) to offer an optimal choice set, then there must be some other way to use them to advance autonomy through property.

If people want a menu of property forms that genuinely gives them the meaningful life choices they need, they may just have to fight for it.  The good news is that that process happens all the time—whether in movements for tenants’ rights or the significant reforms in foreclosure process that legislatures across the United States enacted in the wake of last decade’s housing crisis or in some many other historical and contemporary struggles to make the content of property law more closely resemble a world in which people took mutual respect for autonomy seriously.  And in those fights, the kind of vision that Dagan articulates, particularly the implications of the inherently relationally reciprocal nature of a commitment to autonomy, can be a guide for action. But it cannot be the only guide.A Liberal Theory of Property is both a beautifully rendered argument and a call to arms.  At least when it comes to a structural feature of property law like the standard forms, one can only hope that the contingent process through which property law develops heeds the values Dagan so eloquently champions.  It is unlikely that we’ll end up with anything resembling an ideal choice set, but that doesn’t detract from the need to keep trying.