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Tuesday, January 24, 2006

Genres of elite property scholarship

One of the fields I write and teach in is Property, which -- outside of once-in-a-decade moments like Kelo (the last was probably Lucas v. South Carolina Coastal Council in 1992)-- isn't a ripped-from-the-headlines subject. As I've been weighing potential article topics during my pre-tenure period, I've noticed that, generally, two types of property articles place well: those on takings and those on what I'll call, for want of a better term, property theory. As with all legal scholarship (and scholarship generally), each is generic in a formal sense, with recurring themes and cadences. The takings piece gets attention first and foremost because it's Constitutional Law, and also because it sorts difficult, contested doctrine in new ways (hopefully, if that's even possible), and proposes some descriptive or prescriptive twist.  The theory piece gets attention first and foremost because it's Theoretical and works its way down from some identifiable theoretical apparatus, and/ or because it can pretty neatly work its way out from an interesting observation (the anti-commons, or givings, for example) that gets applied more broadly.

On good days, I enjoy both genres immensely.  Today I've been re-reading Tom Merrill and Henry Smith's efforts, across a series of articles, to re-center property theory around a more classical and formal "in rem" vision of property, and while I haven't agreed with them entirely, I find their discussion entirely useful in thinking through what is lost, as a matter of theory and culture, when legal realists and legal economists reduce property relations to a series of divisible rights.  And I've been reading this material (and plenty of others) in the midst of trying to squeeze out another damned takings piece -- which means I've been reading the vast and often (though certainly not always) fascinating literature on the subject and of course the old incoherent, all-over-the-map Supreme Court decisions of the past thirty odd years.  Big fun.  Seriously.

Real property law isn't particularly sexy. It's mostly state and local law -- which means that it runs against the relentless focus on federal statutory and constitutional law that elite law schools and national media prefer. As common law, it changes slowly (with the constitutional common law of takings being the great exception), and the legal issues created by the relative newcomer of zoning/ land use planning have remained fairly stable over time, even as new planning tools have been developed. Hence, I think, the law review market for two genres that represent, on the one hand, the federal and foundational (constitutional takings), and on the other, the universally descriptive (theory).

There's a third genre that I think is trickier, because it appears to turn the other two on their head: the empirical case study of a property or regulatory regime, whether of the present or past.  It is naturally local and anecdotal, and any claims for the typicality or reproducibility of its results must be tentative. And yet, when a case study provides significant insight into an issue where previous theorists and commentators have demonstrated the wrong intuition -- and I'm thinking here of Robert Ellickson's study of Shasta County's fence laws and, more recently, of Nicole Garnett's new piece on the tendency towards above-market compensation for condemnees in eminent domain actions -- it can play a more important role in extending our understanding of property law in action than another neat theory or takings piece.  The case study is un-sexy, localized, social (rather than bookish), and takes a long time to develop.  It's kind of like Property itself.

Posted by Mark Fenster on January 24, 2006 at 11:50 PM in Property | Permalink


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Mark, great post. I'm also a big fan of Garnett's work.


Posted by: Rick Garnett | Jan 26, 2006 3:53:11 PM

The Mystery of Capital: Why Capitalism Triumphs in the West and Fails Everywhere Else by Hernando Desoto.

Read it. Comparative property law regimes -- that is the ticket.

Posted by: Robert Schwartz | Jan 25, 2006 11:20:29 PM

Heaven forfend! We must refuse to submit to con law as a master discipline! We must resist its colonizing impulses! Takings for the property professors! To the barricades!

Posted by: Mark Fenster | Jan 25, 2006 7:18:18 PM

Spot on, though I'm not sure I'm happy about you blowing the cover of a lot of property profs who are closet Con Law scholars.

Posted by: Ben Barros | Jan 25, 2006 12:54:43 PM

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