Property makes people’s blood boil, although in different ways for people
with property and people without it. Property law makes people’s eyes glaze
over, for property is encrusted with ancient formalities and arcane language.
Property is at once a red-hot topic and a sleeper, a subject central to our political
and social lives and Exhibit I in the pantheon of legal formalism.
When asked several years ago to teach the first-year Property Law course, I
readily agreed. I wanted to see whether the ideas I had developed over a dozen
years of teaching Tort Law would help remove property’s political patina and
the shroud of legal formalism. In the torts course, I had developed a way of
thinking about one individual’s responsibility for the well-being of others – a
theory of private law that might be of value in understanding property law.
Indeed, the more I read and taught, the more I realized that the way to defang
and demystify property law was to reorient the field to understand it as one
about how individuals ought to treat one another if they are to form an authentic
community. Just as tort law is often (but not exclusively) about the rules
of the road (and therefore about the rules governing open access property),
property law concerns the rules governing the allocation and governance of
resources in other ownership forms. I also realized that, unlike in tort law, I
had to develop a theory of how individuals in a community, functioning as a
group of individuals through their state, ought to think about their individual
well-being in light of their collective well-being. Although tort law, drawn as it
is from interpersonal relationships, rarely raises issues of collective well-being
and collective will, property law must confront the relationship between the
individual and the society in which individuals interact.