Stuart Banner Harvard University Press, 2011 Library of Congress KF562.B36 2011 | Dewey Decimal 330.17
What is property? Stuart Banner here offers a guided tour through the many manifestations, and innumerable uses, of property throughout American history. From indigenous culture to our genes, from one’s celebrity to Internet content, American Property reveals how our ideas of ownership evolve to suit our ever-changing needs.
"We are indebted to David Granick for his thoughtful, careful, empirically documented study of the Chinese state industrial enterprise that not only provides a rarely attained comparative analysis but also possesses an explanatory power in suggesting how this system might evolve in the future."—Jeanne L. Wilson, Business Horizons
In Colonial Lives of Property Brenna Bhandar examines how modern property law contributes to the formation of racial subjects in settler colonies and to the development of racial capitalism. Examining both historical cases and ongoing processes of settler colonialism in Canada, Australia, and Israel and Palestine, Bhandar shows how the colonial appropriation of indigenous lands depends upon ideologies of European racial superiority as well as upon legal narratives that equate civilized life with English concepts of property. In this way, property law legitimates and rationalizes settler colonial practices while it racializes those deemed unfit to own property. The solution to these enduring racial and economic inequities, Bhandar demonstrates, requires developing a new political imaginary of property in which freedom is connected to shared practices of use and community rather than individual possession.
This collection of ethnographic and interpretive essays fundamentally alters the debate over indigenous land claims in Southeast Asia and beyond. Based on fieldwork conducted in Malaysia and Indonesia during the 1980s and 1990s, these studies explore new terrain at the intersection of environmental justice, nature conservation, cultural performance, and the politics of making and interpreting claims. Calling for radical redefinitions of development and ownership and for new understandings of the translation of culture and rights in politically dangerous contexts—natural resource frontiers—this volume links social injustice and the degradation of Southeast Asian environments. Charles Zerner and his colleagues show how geographical areas once viewed as wild and undeveloped are actually cultural artifacts shaped by complex interactions with human societies. Drawing on richly varied sources of evidence and interpretation—from trance dances, court proceedings, tree planting patterns, marine and forest rituals, erotic poems, and codifications of customary law, Culture and the Question of Rights reveals the ironies, complexities, and histories of contemporary communities’ struggles to retain their gardens, forests, fishing territories, and graveyards. The contributors examine how these cultural activities work to both construct and to lay claim to nature. These essays open up new avenues for negotiating indigenous rights against a background of violence, proliferating markets, and global ideas of biodiversity and threatened habitat.
Contributors. Jane Atkinson, Don Brenneis, Stephanie Fried, Nancy Peluso, Marina Roseman, Anna Tsing, Charles Zerner
The noted legal scholar Richard Epstein advocates a much smaller federal government, arguing that our over-regulated state gives too much discretion to regulators, which results in arbitrary, unfair decisions and other abuses. Epstein bases his classical liberalism on the twin pillars of the rule of law and of private contracts and property rights.
From 1967 to 1973, a period that culminated in the socialist project of Salvador Allende, nearly 400,000 low-income Chileans illegally seized parcels of land on the outskirts of Santiago. Remarkably, today almost all of these individuals live in homes with property titles. As Edward Murphy shows, this transformation came at a steep price, through an often-violent political and social struggle that continues to this day.
In analyzing the causes and consequences of this struggle, Murphy reveals a crucial connection between homeownership and understandings of proper behavior and governance. This link between property and propriety has been at the root of a powerful, contested urban politics central to both social activism and urban development projects. Through projects of reform, revolution, and reaction, a right to housing and homeownership has been a significant symbol of governmental benevolence and poverty reduction. Under Pinochet’s neoliberalism, subsidized housing and slum eradication programs displaced many squatters, while awarding them homes of their own. This process, in addition to ongoing forms of activism, has permitted the vast majority of squatters to live in homes with property titles, a momentous change of the past half-century.
This triumph is tempered by the fact that today the urban poor struggle with high levels of unemployment and underemployment, significant debt, and a profoundly segregated and hostile urban landscape. They also find it more difficult to mobilize than in the past, and as homeowners they can no longer rally around the cause of housing rights.
Citing cultural theorists from Marx to Foucault, Murphy directly links the importance of home ownership and property rights among Santiago’s urban poor to definitions of Chilean citizenship and propriety. He explores how the deeply embedded liberal belief system of individual property ownership has shaped political, social, and physical landscapes in the city. His approach sheds light on the role that social movements and the gendered contours of home life have played in the making of citizenship. It also illuminates processes through which squatters have received legally sanctioned homes of their own, a phenomenon of critical importance in cities throughout much of Latin America and the Global South.
Countries around the world are heatedly debating whether property should be a constitutional right. But American lawyers have largely ignored this debate, which is divided into two clear camps: those who believe making property a constitutional right undermines democracy by fostering inequality, and those who believe it provides the security necessary to make democracy possible. In The Global Debate over Constitutional Property, Gregory Alexander recasts this discussion, arguing that both sides overlook a key problem: that constitutional protection, or lack thereof, has little bearing on how a society actually treats property.
A society’s traditions and culture, Alexander argues, have a much greater effect on property rights. Laws must aim, then, to change cultural ideas of property, rather than deem whether one has the right to own it. Ultimately, Alexander builds a strong case for improving American takings law by borrowing features from the laws of other countries—particularly those laws based on the idea that owning property not only confers rights, but also entails responsibilities to society as a whole.
The emergence of New Institutional Economics toward the end of the twentieth century profoundly changed our ideas about the organization of economic systems and their social and political foundations. Imperfect Institutions explores recent developments in this field and pushes the discussion forward by allowing for incomplete knowledge of social systems and unexpected system dynamics and, above all, by focusing explicitly on institutional policy. Empirical studies extending from Africa to Iceland are cited in support of the theoretical argument.
In Imperfect Institutions Thráinn Eggertsson extends his attempt to integrate and develop the new field that began with his acclaimed Economic Behavior and Institutions (1990), which has been translated into six languages. This latest work analyzes why institutions that create relative economic backwardness emerge and persist and considers the possibilities and limits of institutional reform.
Thráinn Eggertsson is Professor of Economics at the University of Iceland and Global Distinguished Professor of Politics at New York University. Previously published works include Economic Behavior and Institutions (1990) and Empirical Studies in Institutional Change with Lee Alston and Douglass North (1996).
Governments and development agencies spend considerable resources building property and company registries to protect property rights. When these efforts succeed, owners feel secure enough to invest in their property and banks are able use it as collateral for credit. Similarly, firms prosper when entrepreneurs can transform their firms into legal entities and thus contract more safely. Unfortunately, developing registries is harder than it may seem to observers, especially in developed countries, where registries are often taken for granted. As a result, policies in this area usually disappoint.
Benito Arruñada aims to avoid such failures by deepening our understanding of both the value of registries and the organizational requirements for constructing them. Presenting a theory of how registries strengthen property rights and reduce transaction costs, he analyzes the major trade-offs and proposes principles for successfully building registries in countries at different stages of development. Arruñada focuses on land and company registries, explaining the difficulties they face, including current challenges like the subprime mortgage crisis in the United States and the dubious efforts made in developing countries toward universal land titling. Broadening the account, he extends his analytical framework to other registries, including intellectual property and organized exchanges of financial derivatives. With its nuanced presentation of the theoretical and practical implications, Institutional Foundations of Impersonal Exchange significantly expands our understanding of how public registries facilitate economic growth.
Land Uprising reframes Indigenous land reclamation as a horizon to decolonize the settler colonial conditions of literary, intellectual, and activist labor. Simón Ventura Trujillo argues that land provides grounding for rethinking the connection between Native storytelling practices and Latinx racialization across overlapping colonial and nation-state forms.
Trujillo situates his inquiry in the cultural production of La Alianza Federal de Mercedes, a formative yet understudied organization of the Chicanx movement of the 1960s and 1970s. La Alianza sought to recover Mexican and Spanish land grants in New Mexico that had been dispossessed after the Mexican-American War. During graduate school, Trujillo realized that his grandparents were activists in La Alianza. Written in response to this discovery, Land Uprising bridges La Alianza’s insurgency and New Mexican land grant struggles to the writings of Leslie Marmon Silko, Ana Castillo, Simon Ortiz, and the Zapatista Uprising in Chiapas, Mexico. In doing so, the book reveals uncanny connections between Chicanx, Latinx, Latin American, and Native American and Indigenous studies to grapple with Native land reclamation as the future horizon for Chicanx and Latinx indigeneities.
Is private ownership an inviolate right that individuals can wield as they see fit? Or is it better understood in more collective terms, as an institution that communities reshape over time to promote evolving goals? What should it mean to be a private landowner in an age of sprawling growth and declining biological diversity?
These provocative questions lie at the heart of this perceptive and wide-ranging new book by legal scholar and conservationist Eric Freyfogle. Bringing together insights from history, law, philosophy, and ecology, Freyfogle undertakes a fascinating inquiry into the ownership of nature, leading us behind publicized and contentious disputes over open-space regulation, wetlands protection, and wildlife habitat to reveal the foundations of and changing ideas about private ownership in America.
Drawing upon ideas from Thomas Jefferson, Henry George, and Aldo Leopold and interweaving engaging accounts of actual disputes over land-use issues, Freyfogle develops a powerful vision of what private ownership in America could mean—an ownership system, fair to owners and taxpayers alike, that fosters healthy land and healthy economies.
After the American Civil War, agricultural reformers in the South called for an end to unrestricted grazing of livestock on unfenced land. They advocated the stock law, which required livestock owners to fence in their animals, arguing that the existing system (in which farmers built protective fences around crops) was outdated and inhibited economic growth. The reformers steadily won their battles, and by the end of the century the range was on the way to being closed.
In this original study, Kantor uses economic analysis to show that, contrary to traditional historical interpretation, this conflict was centered on anticipated benefits from fencing livestock rather than on class, cultural, or ideological differences. Kantor proves that the stock law brought economic benefits; at the same time, he analyzes why the law's adoption was hindered in many areas where it would have increased wealth. This argument illuminates the dynamics of real-world institutional change, where transactions are often costly and where some inefficient institutions persist while others give way to economic growth.
Following the end of World War II in 1945, the Chinese Communist Party (CCP) spent the next three decades carrying out agrarian reform among nearly one-third of the world’s peasants. This book presents a new perspective on the first step of this reform, when the CCP helped redistribute over 40 million hectares of land to over three hundred million impoverished peasants in the nationwide land reform movement. This land reform, the founding myth of the People’s Republic of China (1949–present) and one of the largest redistributions of wealth and power in history, embodies the idea that an equal distribution of property will lead to social and political equality.
Power Over Property argues that in practice, however, the opposite occurred: the redistribution of political power led to a more equal distribution of property. China’s land reform was accomplished not only through the state’s power to define the distribution of resources, but also through village communities prioritizing political entitlements above property rights. Through the systematic analysis of never-before studied micro-level data on practices of land reform in over five hundred villages, Power Over Property demonstrates how land reform primarily involved the removal of former power holders, the mobilization of mass political participation, and the creation of a new social-political hierarchy. Only after accomplishing all of this was it possible to redistribute land. This redistribution, moreover, was determined by political relations to a new structure of power, not just economic relations to the means of production.
The experience of China’s land reform complicates our understanding of the relations between economic, social, and political equality. On the one hand, social equality in China was achieved through political, not economic means. On the other hand, the fundamental solution was a more effective hierarchy of fair entitlements, not equal rights. This book ultimately suggests that focusing on economic equality alone may obscure more important social and political dynamics in the development of the modern world.
The United States Constitution was designed to secure the rights of individuals and minorities from the tyranny of the majority—or was it? Jennifer Nedelsky's provocative study places this claim in an utterly new light, tracing its origins to the Framers' preoccupation with the protection of private property. She argues that this formative focus on property has shaped our institutions, our political system, and our very understanding of limited government.
Law and economics is the leading intellectual movement in law today. This book examines the first great law and economics movement in the early part of the twentieth century through the work of one of its most original thinkers, Robert Hale. Beginning in the 1890s and continuing through the 1930s, progressive academics in law and economics mounted parallel assaults on free-market economic principles. They showed first that "private," unregulated economic relations were in fact determined by a state-imposed regime of property and contract rights. Second, they showed that the particular regime of rights that existed at that time was hard to square with any common-sense notions of social justice.
Today, Hale is best known among contemporary legal academics and philosophers for his groundbreaking writings on coercion and consent in market relations. The bulk of his writing, however, consisted of a critique of natural property rights. Taken together, these writings on coercion and property rights offer one of the most profound and elaborated critiques of libertarianism, far outshining the better-known efforts of Richard Ely and John R. Commons. In his writings on public utility regulation, Hale also made important contributions to a theory of just, market-based distribution.
This first, full-length study of Hale's work should be of interest to legal, economic, and intellectual historians.
Property and Values offers a fresh look at property rights issues, bringing together scholars, attorneys, government officials, community development practitioners, and environmental advocates to consider new and more socially equitable forms of ownership. Based on a Harvard Law School conference organized by the Equity Trust, Inc., in cooperation with the American Bar Association's Commission on Homelessness and Poverty, the book: explains ownership as an evolving concept, determined by social processes and changing social relations challenges conventional public-private ownership categories surveys recent studies on the implications of public policy on property values offers examples from other cultures of ownership realities unfamiliar or forgotten in the United States compares experiments in ownership/equity allocation affecting social welfare and environmental conservation The book synthesizes much innovative thinking on ownership in land and housing, and signals how that thinking might be used across America. Contributors - including David Abromowitz, Darby Bradley, Teresa Duclos, Sally Fairfax, Margaret Grossman, C. Ford Runge, William Singer and others - call for balance between property rights and responsibilities, between private and public rights in property, and between individual and societal interests in land.Property and Values is a thought-provoking contribution to the literature on property for planners, lawyers, government officials, resource economists, environmental managers, and social scientists as well as for students of planning, environmental law, geography, or public policy.
It is time to leave capitalism behind. In Prosperity without Greed, Sahra Wagenknecht shows that we live in a system of economic feudalism that has nothing to do with a free market economy, where the innovations we require to solve myriad important societal problems are not forthcoming. How can it be, Wagenknecht asks, that technological developments financed by the taxpayer end up enriching private companies even if those companies’ activities violate public interests? Through clear analysis and concrete proposals, Wagenknecht suggestss new forms of ownership and sketches the outlines of an innovative and just economy that instead promotes and rewards talent, real performance, and start-ups with groundbreaking ideas.
Property rights are a tool humans use in regulating their use of natural resources. Understanding how rights to resources are assigned and how they are controlled is critical to designing and implementing effective strategies for environmental management and conservation.Rights to Nature is a nontechnical, interdisciplinary introduction to the systems of rights, rules, and responsibilities that guide and control human use of the environment. Following a brief overview of the relationship between property rights and the natural environment, chapters consider: ecological systems and how they function the effects of culture, values, and social organization on the use of natural resources the design and development of property rights regimes and the costs of their operation cultural factors that affect the design and implementation of property rights systems coordination across geographic and jurisdictional boundaries The book provides a valuable synthesis of information on how property rights develop, why they develop in certain ways, and the ways in which they function. Representing a unique integration of natural and social science, it addresses the full range of ecological, economic, cultural, and political factors that affect natural resource management and use, and provides valuable insight into the role of property rights regimes in establishing societies that are equitable, efficient, and sustainable.
As challenges to land use and environmental controls by landowners and the property-rights movement have become more frequent, the concept of "takings" -- government action that excessively limits a property-owner's use of private land -- has become both increasingly familiar to the public, and increasingly problematic for planners, local officials, and anyone involved with making day-to-day decisions about land use. A vast and diverse body of case law has come into existence over the past several decades, and the controversy generated by recent legal decisions has resulted in a significant level of ideological bias in much of what has been written on the topic.This volume is an objective and authoritative examination that considers all aspects of the takings issue. It is a much-needed guide and overview that introduces and explains issues surrounding regulatory takings on the local, state, and federal level for anyone involved with private land and government limitation of its permissible use. The authors describe where the law is now, predict where it might go in the future, and review conflict-reducing solutions to a variety of situations. They condense an immense amount of information into a clear and accesible format, making the book equally valuable for lawyers and non-lawyers alike.The Takings Issue addresses procedural hurdles involved in getting a takings issue heard by a court, examines what does and does not constitute a taking, and considers the remedies available to landowners involved in takings actions. It treats concerns such as zoning, dedications and exactions, subdivision platting, and other local issues in some detail, and also considers state and federal issues involving industrial site approval, endangered species and wetlands protection, restrictions on access to resources on federal lands, and other topics.The book is an essential reference for planners, land use lawyers, developers, and students of planning and law, as well as for policymakers and citizens involved with takings issues.
If legal scholar Richard Epstein is right, then the New Deal is wrong, if not unconstitutional. Epstein develops a coherent normative theory that permits us to distinguish between permissible takings for public use and impermissible ones. He then examines a wide range of government regulations and taxes under a single comprehensive theory.
The Amazon, the world's largest rain forest, is the last frontier in Brazil. The settlement of large and small farmers, squatters, miners, and loggers in this frontier during the past thirty years has given rise to violent conflicts over land as well as environmental duress. Titles, Conflict, and Land Use examines the institutional development involved in the process of land use and ownership in the Amazon and shows how this phenomenon affects the behavior of the economic actors. It explores the way in which the absence of well-defined property rights in the Amazon has led to both economic and social problems, including lost investment opportunities, high costs in protecting claims, and violence. The relationship between land reform and violence is given special attention.
The book offers an important application of the New Institutional Economics by examining a rare instance where institutional change can be empirically observed. This allows the authors to study property rights as they emerge and evolve and to analyze the effects of Amazon development on the economy. In doing so they illustrate well the point that often the evolution of economic institutions will not lead to efficient outcomes.
This book will be important not only to economists but also to Latin Americanists, political scientists, anthropologists, and scholars in disciplines concerned with the environment.
Lee Alston is Professor of Economics, University of Illinois, and Research Associate for the National Bureau of Economic Research. Gary Libecap is Professor of Economics and Law, University of Arizona, and Research Associate for the National Bureau of Economic Research. Bernardo Mueller is Assistant Professor, Universidade de Brasilia.
Trespassing, “a thoughtful, beautifully written addition to environmental and regional literature” (Kirkus Reviews), is a historical survey of the evolution of private ownership of land, concentrating on the various land uses of a 500-acre tract of land over a 350-year period. What began as wild land controlled periodically by various Native American tribes became British crown land after 1654, then private property under US law, and finally common land again in the late twentieth century. Mitchell considers every aspect of the important issue of land ownership and explores how our attitudes toward land have changed over the centuries.
In this timely work, Eric Freyfogle probes the long-simmering struggles in the American West to address water-related problem. The big challenge is to resolve water shortages and meet high-valued water needs while also improving river ecosystems. These water conflicts, he suggests, have less to do with our contentious political differences than they do with longstanding core elements of American culture—inherited, shared ways of understanding our place in nature that no longer make good sense. Particularly troublesome are the ways we fragment it, valuing its parts as discrete commodities. Also at play is our cultural inability to think clearly about how best to draw the line between the legitimate use of nature and the abuse of it.
Building on these cultural critiques, Freyfogle takes up the issue of private property rights, highlighting the longstanding flexibility of this key American institution as well as the moral imperative to ensure that property rights aren’t used in ways that harm communities. Outdated understandings about private property, he concludes, have further confused our understanding and made sensible solutions to water problems even harder to imagine. Water-policy reform won’t happen, Freyfogle argues, until we reconsider how we understand nature and take charge of the institution of ownership, recasting it so as to increase the benefits it generates for everyone. If we can do that, solutions to water troubles could prove easier than we expect. The work concludes with an original, sweeping policy proposal to resolve the West’s water shortages and meet environmental needs in ways fair to all.
This lecture was presented on March 22, 2017, at the 22nd annual symposium sponsored by the Wallace Stegner Center for Land, Resources and the Environment at the S. J. Quinney College of Law, University of Utah.
Land ownership by individual citizens is a cornerstone of American heritage and a centerpiece of the American dream. Thomas Jefferson called it the key to our success as a democracy. Yet the question of who owns America not only remains unanswered but is central to a fundamental conflict that can pit private property rights advocates against government policymakers and environmentalists.
Land use authority Harvey M. Jacobs has gathered a provocative collection of perspectives from eighteen contributors in the fields of law, history, anthropology, economics, sociology, forestry, and environmental studies. Who Owns America? begins with the popular view of land ownership as seen though the television show Bonanza! It examines public regulation of private land; public land management; the roles culture and ethnic values play in land use; and concludes with Jacobs’ title essay. Who Owns America? is a powerful and illuminating exploration of the very terrain that makes us Americans. Its broad set of theoretical and historical perspectives will fascinate historians, environmental activists, policy makers, and all who care deeply about the land we share.
Humankind coexists with every other living thing. People drink the same water, breathe the same air, and share the same land as other animals. Yet, property law reflects a general assumption that only people can own land. The effects of this presumption are disastrous for wildlife and humans alike. The alarm bells ringing about biodiversity loss are growing louder, and the possibility of mass extinction is real. Anthropocentric property is a key driver of biodiversity loss, a silent killer of species worldwide. But as law and sustainability scholar Karen Bradshaw shows, if excluding animals from a legal right to own land is causing their destruction, extending the legal right to own property to wildlife may prove its salvation. Wildlife as Property Owners advocates for folding animals into our existing system of property law, giving them the opportunity to own land just as humans do—to the betterment of all.