Abstract

Can--or should--the American property system adapt to curb the excesses inherent in the dominant form of capitalism? Those extolling the virtues of privatization of resources would likely answer in the negative. Such a response would ignore the core functions and infrastructure of the American institution of property. This Article discusses the structure of property that enables property law to evolve over time, reacting to changing conditions, recognizing informal customs and usages, and otherwise taking into account important feedbacks. It explains how property provides an ordering system of concepts and principles that define and govern relations between a society and its resources at an individual and collective level. As an ordering system, property performs the important functions of allocating, distributing, and managing interests in the society's resources according to accepted norms and principles. The in rem nature of property rights gives holders their power over third parties, while constitutional provisions protect property owners from government overreach. Basic operating principles and norms then guide the decision-making of the property owners--the gatekeepers--in ways that again reflect accepted norms. But when those norms and principles ignore physical realities, when they clash with other values fundamental to the political structure of the society, when they conflict with modern scientific truths and understandings, it is time for the property system to reevaluate some of its core operating principles and guiding norms. Such a reform effort, however, requires a deeper understanding of the importance of viewing property as a system.

Document Type

Article

Publication Information

58 San Diego Law Review 73-100 (2021)

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