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Wednesday, September 13, 2006

Research Canons: Property, Real Estate, and Land Use Law

Our next subject matter for the research canons project is Property, Real Estate, and Land Use Law.  (See here for a discussion of the research canons project, including categories, dates, and links to prior installments.)  Please comment on the books and articles that are essential to a new academic in the field.  In addition to listing your suggestions, you want to say a little about why the book or article is so important for new scholars.

Posted by Matt Bodie on September 13, 2006 at 12:42 AM in Research Canons | Permalink


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I'm not a specialist in this area nor do I have any other claims to legal expertise. However, I'm interested in 'theories of property,' or more philosophical approaches to the question of property, and thus at the risk of impertinence I'll mention some titles I've found interesting. I have little knowledge of the relevant journal literature, so I've confined myself to books. Perhaps those with the requisite qualifications could then comment with their disciplinary-grounded assessments. What counts for 'canonical' with regard to a philosophical approach is largely covered by Jeremy Waldron's bibliography from his article on 'property' in the Stanford Encyclopedia of Philosophy: http://plato.stanford.edu/entries/property/
However, oddly missing from Waldron's list is Pierre-Joseph Proudhon's Qu'est-ce que la propriété? (1840)/What is Property? (edited and translated by Donald R. Kelley and Bonnie G. Smith, Cambridge University Press, 1994). Proudhon's book had a decisive influence on Marx, however much he thought Proudhon's approach to social revolution deeply mistaken (and Marx's failure to win Proudhon's cooperation for his political agitation no doubt contributed to Marx's attack on Proudhon in the Poverty of Philosophy, 1847).

Christman, John. The Myth of Property: Toward an Egalitarian Theory of Ownership. New York: Oxford University Press, 1994.

Cohen, G.A. Self-Ownership, Freedom, and Equality. Cambridge, UK: Cambridge University Press, 1995.

Munzer, Stephen R. A Theory of Property. Cambridge, UK: Cambridge University Press, 1990.

Murphy, Liam and Thomas Nagel. The Myth of Ownership: Taxes and Justice. New York: Oxford University Press, 2002.

Penner, J.E. The Idea of Property in Law. New York: Oxford University Press, 1997.

Radin, Margaret Jane. Reinterpreting Property. Chicago, IL: University of Chicago Press, 1993.

Waldron, Jeremy. The Right to Private Property. New York: Oxford University Press, 1988.

And now, with regard to property law proper, I consult Robert C. Ellickson, Carol M. Rose and Bruce A. Ackerman, Perspectives on Property Law. New York: Aspen, 2002. By way of a casebook, I use Jesse Dukeminier and James E. Krier, Property. New York: Aspen, 2002, 5th ed. (I suspect there's a later ed. available)

Posted by: Patrick S. O'Donnell | Sep 13, 2006 2:39:59 AM

There is a 6th edition of the Dukeminier casebook which was released in April 2006. Thanks for the property suggestions, and for the research canons project generally.

Posted by: liz glazer | Sep 13, 2006 6:43:54 AM

Here's my list:

The Classics of the Moral and Political Theory of Property:

Locke, On Property
Rousseau, Discourse on Inequality
Bentham, The Theory of Legislation
Marx, Communist Manifesto

Conceptualizing Property Rights:

Wesley Hohfeld's Fundamental Legal Conceptions
Thomas C. Grey, “The Disintegration of Property”
Guido Calabresi & A Douglas Melamed, “Property Rules, Liability Rules, and Inalienability: One View of the Cathedral"

Great Contemporary Work on Property Theory:

Margaret Jane Radin, "Property and Personhood" and Contested Commodities
Joseph William Singer, “The Reliance Interest in Property”
Hernando de Soto, The Mystery of Capital
Charles A. Reich, “The New Property”
Milton Friedman, Capitalism and Freedom
William Fischel, The HomeVoter Hypothesis
Ronald Coase, "The Problem of Social Cost"
Garrett Hardin, "The Tragedy of the Commons"
Harold Demsetz, "Toward a Theory of Property Rights"
Lots of articles by Carol Rose and Richard Epstein -- it is hard to pick just one or two

Takings and Constitutional Property:

James Madison, "Property"
Joseph Sax, "Takings and the Police Power"
Frank Michelman, "Property, Utility and Fairness"
Bruce Ackerman, Private Property and the Constitution
Richard Epstein, Takings
William Michael Treanor, "The Original Understanding of the Takings Clause and Political Process"

Also, Abraham Bell and Gideon Parchomovsky's "Givings" and Lior Jacob Strahilevitz's "Information Asymmetries and the Right to Exclude" have a good shot at becoming canonical.

Posted by: Ben Barros | Sep 13, 2006 11:17:20 AM

Many of the greats already listed. Some additional suggestions:

Carol Rose, Property and Persuasion: Essays on the History, Theory, and Rhetoric of Property (1994)

Joseph Sax, The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention, Mich. L. Rev. (1970)

Margaret Radin, Market Inalienability, Harv. L. Rev. (1987)

Michael Heller, The Tragedy of the Anticommons, Harv. L. Rev. (1998)

If I were to pick a recent article that has a shot at becoming canonical, I'd go for Henry Smith, Exclusion versus Governance: Two Strategies for Delineating Property Rights, J. Legal Stud. (2002)

Posted by: Dave | Sep 13, 2006 11:27:20 AM

As well as many of the above, I think a 'must read' is:

Singer, Entitlement: The Paradoxes of Property.

It provided me with a new way of looking at the old debates.
(And I really like his case-book).

Posted by: Annecoos Wiersema | Sep 13, 2006 11:46:46 AM

I'd add two by Merrill and Smith

Optimal Standardization in the Law of Property: The Numerus Clausus Principle

What Happened to Property in Law and Economics

Posted by: Mark McKenna | Sep 13, 2006 12:35:37 PM

Here are some works on "land use law" -- government regulation of land and community development, including sprawl, zoning, racial segregation, housing, and transportation. Land use law (which was a late addition to the "property" canon here, I note) is sometimes lumped with "property" law (which typically focuses on private rights, as opposed to government) or "state and local government law" (because most but not all land use law is non-federal) or even environmental law. Here is a very subjective list of works, mostly recent and in no particular order, that tie together various stands of land use law and policy:

Jane Jacobs, The Death and Life of Great American Cities

Richard Epstein, Takings

William Kunstler, The Geography of Nowhere and Home from Nowhere

Dolores Hayden, Building Suburbia: Green Fields and Urban Growth, 1820-2000

Andres Duany & Elizabeth Plater-Zyberk, Suburban Nation

Kenneth Jackson, Crabgrass Frontier

Charles Haar, Suburbs Under Siege

Robert Bullard, Dumping in Dixie: Race, Class, and Environmental Quality

Jerry Frug, The Geography of Community, 48 Stan. L. Rev. 1047 (1996)

Robert C. Ellickson, Alternatives to Zoning: Covenants, Nuisance Rules, and Fines as Land Use Controls, 40 U. Chi. L. Rev. 681 (1973)

J. Peter Byrne, Are Suburbs Unconstitutional?, 85 Geo. L.J. 2265, 2268-69 (1997)

Ronald Coase, The Problem of Social Cost, 3 J.L. & Econ. 1 (1960).

Michael A. Heller, The Boundaries of Private Property, 108 Yale L.J. 1163 (1999)

Richard Briffault, The Local Government Boundary Problem in Metropolitan Areas, 48 Stan. L. Rev. 1115 (1996)

Posted by: Paul Boudreaux | Sep 13, 2006 2:49:52 PM

I started teaching property in January, 1975. I've read many of the sources already listed. Let me add a couple that I reviewed long ago. The first was Lawrence Becker's Property Rights: Philosophical Foundations. The second was the NOMOS collection of essays on property. This was volume 22 of the NOMOS series produced by the American Society of Legal and Political Philosophy.

Posted by: John Rooney | Sep 14, 2006 8:05:27 AM

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