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Reinterpreting Property Reinterpreting Property Reinterpreting Property MugwetJurae &din The University of Chicago Press Chicado and London MARGARETJANE RADIN is a professor of law at Stanford University. The University of Chicago Press, Chicago 60637 The University of Chicago Press, Ltd., London 0 1993 by The University of Chicago All rights reserved. Published 1993 Printed in the United States of America 02 01 00 99 98 97 96 95 94 93 1 2 3 4 5 ISBN: 0-226-70227-8 (cloth) Library of Congress Cataloging-in-Publication Data Radin, Margaret Jane. Reinterpreting property / Margaret Jane Radin. p. cm. A collection of essays by the author, some which were originally published in various periodicals. Includes index. 1. Property. 2. Law-Philosophy. I. Title. K720.R33 1993 340’.1-dc20 93-4908 CIP @ The paper used in this publication meets the minimum requirements of the American National Standard for Information Sciences-Permanence of Paper for Printed Library Materials, ANSI 239.48-1984. For Amadea and Wayland Contents Acknowledgments ix Introduction: Property and Pragmatism 1 ONE Property and Personhood 35 TWO Residential Rent Control 72 THREE Problems for the Theory of Absolute Property Rights 98 FOUR The Liberal Conception of Property: Crosscurrents in the Jurisprudence of Talungs 120 FIVE Diagnosing the Takings Problem 146 SIX Government Interests and Takings: Cultural Commitments of Property and the Role of Political Theory 166 SEVEN The Rhetoric of dienation 191 Notes 203 Index 253 vii Acknowledgments These essays were written between 1981 and 1992. For the most part they are reproduced as first published, except that some footnotes have been abridged or deleted. Footnotes have not been updated, except in a few cases, mostly to provide appropriate cross references within this vol- ume. Rarely I have added a footnote in brackets where I now feel my text should be added to or contradicted, but mostly I have resisted the temptation. “Property and Personhood” (chapter 1) was first published in 34 Stanfmd Law Review 957-1015 (1982). Except for minor stylistic mat- ters, the text is unchanged. Some footnotes have been abridged or de- leted. Reprinted with permission of the Stanford Law Rm’ew. “Residential Rent Control” (chapter 2) was first published in 25 Phihsqhy and Public Afairs 350-380 (1986), and is reprinted, with minor stylistic changes, with permission of Princeton University Press. “Problems for the Theory of Absolute Property Rights” (chapter 3) is adapted from two essays, “The Consequences of Conceptualism,” first published in 41 University of Miami Law Review 239-244 (1986), and “Time, Possession, and Alienation,” first published in 64 Washington University Law Quatyteyl‘r 739-579 (1986). The latter piece was com- missioned by the Liberty Fund, Inc., for a conference on “Time, Prop- erty Rights, and the Common Law,” held in November 1985, and the former was written in response to a conference held in January 1986, also sponsored by the Liberty Fund, Inc., on “Talungs of Property and the Constitution.” Only minor revisions have been made to the texts. A brief introduction and conclusion have been added. Some foot- notes have been abridged or deleted. Reprinted with permission of the University of Miami Law Review and the Washington University Law Quayterb. “The Liberal Conception of Property: Crosscurrents in the Jurispru- X Acknowledjments dence of Takings” (chapter 4) was published in 88 Columbia Law Review 1667-1698 (1988). Except for minor stylistic matters, the text is un- changed. Some footnotes have been abridged or deleted. The Columbia Law Review version is an adaptation and expansion of “The Constitu- tion and the Liberal Conception of Property,” chapter 8 inJudging the Constitution: Critical Essays on Judicial Lawmaking; edited by Michael W. McCann and Gerald L. Houseman, published by Scott, Foresman & Co. division of Little Brown & Co. (1989). Reprinted with permission of the Columbia Law RWand Scott, Foresman & Co. “Diagnosing the Takings Problem” (chapter 5) was first published as chapter 10 in NOMOS XXUII, CompensatoryJustice, edited by John W. Chapman, published by the New York University Press (1991). Minor corrections have been made to the text. Reprinted with the permission of the New York University Press. “Government Interests and Talungs: Cultural Commitments of Prop- erty and the Role of Political Theory” (chapter 6) is an adapted version of an essay commissioned for a conference sponsored by Albany Law School on “Compelling Government Interests: The Mystery of Consti- tutional Analysis,” held in September 1991. The essay was first com- mitted to Public Values in Constitutional Law, edited by Stephen E. Gottlieb and to be published by the University of Michigan Press (Sep- tember 1993). Inclusion here is with permission of the University of Michigan Press. “The Rhetoric of Alienation” (chapter 7)was written in 1986 for a colloquium on property and rhetoric. It is published here for the first time, with minor revisions. All but one of these essays were written while I was on the faculty of the University of Southern California Law Center. I appreciate USC‘s summer research support grants, as well as Stanford’s since 1990. At Stanford my research was supported by a bequest from the Claire and Michael Brown Estate. I can no longer name all the people at USC whose ideas and arguments helped to form mine, but I remain grateful to that institution and to my colleagues there for the extraordinary scholarly community that made this work possible. For thoughdid re- sponses to these essays during their gestation, I am grateful as well to a lot of other academics who think about property. I do not mean that expressio unius est exclusio alternus when I mention Frank Michelman in particular. Over the years his readings have been both sympathetic and critical in the way a writer hardly dares hope for. Special thanks to Acknowledgments Xi Thomas C. Grey, whose unerring ear for decent prose greatly im- proved the introduction; to John Tryneski, Senior Editor, the Univer- sity of Chicago Press, whose idea this project was; and (they know why) to Layne L. Britton, Barbara Herman, Kathleen M. Sullivan, and Jeanne M. Wilson. I dedicate this collection to my children because of what they have taught me. Introduction: Property and Pragmatism Some writers say, I have been told, that when an essay is more than two years old, there can be no presumption that it has anything to do with one’s views. The essays in this book range from eleven years old to one. The younger ones are much more recognizable to me as being mine. For a while I hoped someday to knit all of these essays together into a book to be entitled “Property and Personhood.” It turned out that there is too much water under the bridge, intellectually speaking, for that to be possible. If I were starting the project now, there is too much I would do differently. Yet the essays are loosely connected by certain recurring themes. One main theme in these essays is the personality theory of property. The personality theory is an aspect of traditional liberal thought about property. It elaborates the notion that ownership is bound up with self- constitution or personhood. It connects ownership with central ideo- logical commitments of liberal thought, particularly with notions of freedom and individualism. In reconsidering the personality theory I have juxtaposed it with two other main aspects of liberal property theory, the labor theory stemming from Locke and the economic theory stemming from Bentham. I have also often recurred to questions about how these ideological strands are played out in American property law in general, and especially in American constitutional property law. In these inquiries jurisprudential questions are never far from view. To what extent and in what way are these ideological commitments of lib- eral culture integral with the law? Another main theme is a species of pragmatism. Although I did not at the time of the earlier essays consciously name myself a pragmatist, it has always seemed important to me to focus on the nonideal nature of property practices and institutions, on the situated, and second-best, working out of liberal ideological commitments in practice. It has always seemed important to me to connect theory with specific legal practices, such as landlord-tenant law or takings of property without just compen- I 2 Introductwn sation. As I wrote and learned about these matters, I was led to a more explicit commitment to philosophical pragmatism. This commitment in turn led to more explicit reflections about the interrelationship between law and the cultural commitments of property. It also led to reflections about the language of property: the role of property rhetoric in the social construction of selves. I “Property and Personhood” (chapter 1) resulted from my experience in my first few years of teaching property law. Again and again, study of cases revealed that we-students, the teacher, and the judge who wrote the opinion-perceived the strength of property claims differently de- pending upon who advanced them and under what circumstances. When individuals credibly claimed real attachment to their property in some personal sense, their legal claims to that property were by and large treated as weightier than claims where economic return to invest- ment was the only plausible connection between the claimant and the property. No distinction between different types of property claims ever became explicit in the cases. But exceptional cases where the distinction was ignored-the famous Peayhouse is a good example-were greeted by many students with gut-level outrage, not merely disagreement. Feel- ings about the distinction ran deep, yet there were no modern theoreti- cal works that focused on it. Hence the essay starts out by saying that the relationship between property and personhood “has commonly been both ignored and taken for granted in legal thought.” In “Property and Personhood” I wanted first of all to point out the tacit legal and cultural understanding that there are two kinds of prop- erty-I should have said two lunds of property relationships-and I wanted to show how broad that understanding is, how it cuts across many fields of law.
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