A NEW NEW PROPERTY David A. Super* Charles Reich’s visionary 1964 article, The New Property, paved the way for a revolution in procedural due process. It did not, however, accomplish Reich’s primary stated goal: providing those dependent on government assistance the same security that property rights long have offered owners of real property. As Reich himself predicted, procedural rights have proven largely ineffectual, especially for low-income people. In the half-century since he wrote, growing wealth inequality and repeated cutbacks in antipoverty programs have produced the pervasive disempowerment he predicted, but concentrated in one segment of society. This is incompatible with a healthy democracy. Reich found that government largesse had become functionally equivalent to more traditional forms of property. Other analogies to property concepts can also protect low-income people, supporting recogni- tion of the most important assets low-income people have, many of which are relational rather than tangible. Like long-time trespassers obtaining ownership rights through ad- verse possession, families that have long lived together in this country should be able to continue doing so despite the unlawful immigration status of some of their members. The law should value the communities that offer mutual support to low-income people in much the same way as it does common interest communities. Principles of equity that long shielded less sophisticated people against sharp operators should be re- vived to protect low-income people’s homes against abusive foreclosures. And modern Takings Clause doctrine should recognize subsistence gov- ernment benefits as property. A regime of property law that secures that which is most essential to the well-being of a broad swath of society, rather than just those items disproportionately held by the wealthy, will best promote social, economic, and political participation by all people. INTRODUCTION ........................................................................................1775 I. WHITHER THE OWNERSHIP SOCIETY? ....................................................1786 * Professor, Georgetown University Law Center. The author is grateful for the excellent comments of Bruce Ackerman, Cheryl Cortemeglia, Peter Danchin, Judith Resnik, Jana Singer, Liz Sweet, Kathy Vaughns, Anthony Vitarelli, Steve Wagner, Mike Wishnie, and the participants in the faculty workshops of Cornell, Georgetown, Pace, and Vanderbilt Law Schools, as well as the superb research of Rebecca Brown, Susan Gershon, Sabrina Hassanali, Stanton Johnson, Susan McCarty, Michelle Mendez, Thanh Nguyen, Uyen Pham, Janet Sinder, Xochitl Strohbehn, and Samantha Syverson, and the exceptionally perceptive editing of Tim Gray. 1773 1774 COLUMBIA LAW REVIEW [Vol. 113:1773 A. Wealth Inequality and Race in the United States ......................1787 B. The Social Consequences of Asset Poverty ................................1791 C. Property Rights and Political Freedom ......................................1793 D. Policy Responses to Wealth Disparities ......................................1796 II. PROPERTY IN FAMILY RELATIONSHIPS: PRESCRIPTIVE RIGHTS ..............1798 A. Collateral Harm from Immigration Enforcement .....................1801 1. Undocumented Immigrants. ...............................................1801 2. Legal Immigrants Convicted of Nonviolent Crimes ...........1805 B. The Rule of Law and Its Limits ...................................................1806 C. Immigrant Families and Prescriptive Rights ..............................1809 III. PROPERTY IN COMMUNITIES: SOCIAL RIGHTS AND STABILITY .............1818 A. Displaced People and Communities ..........................................1821 B. The Inadequacy of Current Property Theories .........................1825 C. How Stronger Property Rights Could Preserve Community Values .........................................................................................1827 1. Recognizing Weak Property Interests .................................1828 2. Reexamining Exclusionary Housing Policies. ....................1831 3. Vulnerable Communities as Public Trusts. .........................1835 4. Directly Recognizing the Value of Community ..................1837 D. Conclusion ..................................................................................1840 IV. RELATIONSHIPS WITH POWERFUL STRANGERS: REVIVING EQUITY .......1840 A. The Rise and Eclipse of Equity ...................................................1842 B. The Mortgage Foreclosure Crisis ...............................................1845 1. Special Factors Exacerbating the Crisis. ..............................1845 2. The Human Toll ..................................................................1847 C. Resuscitating Equity ....................................................................1849 1. Equity’s Legitimacy. .............................................................1850 2. Applying Equity to the Foreclosure Crisis. ..........................1852 a. Foreclosures as Waste. ..................................................1853 b. The Duty to Bargain in Good Faith in a Securitized World. ..........................................................................1856 c. Integrating Equity with Fair Credit Regulation. ..........1859 3. Doctrines Restraining Equity. ..............................................1863 D. Conclusion ..................................................................................1867 V. RELATIONSHIPS WITH THE STATE: SECURITY IN THE NEW PROPERTY ...1868 A. Takings and Personal Security ....................................................1869 B. How the Takings Clause Might Protect the New Property ........1871 C. Arguments Against an Expanded Takings Clause .....................1874 D. The Renaissance in Reliance Interests .......................................1875 E. Conclusion ...................................................................................1878 2013] A NEW NEW PROPERTY 1775 CONCLUSION ............................................................................................1878 INTRODUCTION Property is one of the oldest bodies of the common law. As such, it has adjusted to a long succession of social, economic, and political changes. It has maintained its centrality in Anglo-American law through a combination of elasticity and stability. Thus, when civil war disrupted the basic legal order and made “true” ownership extremely difficult and costly to adjudicate, property law resorted to new writs, requiring plain- tiffs to show only that they had recently been dispossessed, not trace the chain of title to show ultimate ownership.1 When those that already had great wealth sought to multiply their advantage by manipulating poorer people, it developed equity.2 Equity nominally left intact longstanding legal rights, but it forbade sharp operators from taking advantage of them.3 When property law recognized that the right and the ability to manage property often would lie in separate hands, it developed the trust.4 As alienation supplanted inheritance as the most important means of transferring property, property law recognized that transferors might have reasons to retain some rights in the land and began to recognize easements.5 In these and many other ways, property law has adapted to broad changes in social arrangements while protecting individual auton- omy. Property law has been a preserver, but it also has been a destroyer. It identifies and thwarts pathological relationships or powers, such as a decedent’s attempts to control her or his property in perpetuity from the grave.6 In numerous ways, it manages to break up excessive concentrations of wealth that allow a few owners to challenge the power of the sovereign, to oppress less established members of society, or simply to act wastefully. Capitalism, that most prominent child of property law, 1. See, e.g., S.F.C. Milsom, Historical Foundations of the Common Law 137–40 (2d ed. 1981) (describing origin of “writ of novel disseisin” in early English law). 2. See id. at 83 (explaining equity as recourse for those “too poor to sue”). 3. See id. at 93 (noting early understanding that equity “leaves the [legal] Judgment in Peace, and only medleth with the corrupt Conscience of the Party” (internal quotation marks omitted)). 4. See id. at 86–88 (noting prior law only provided “clear rules about the dealings with land that were possible,” but did “not accommodate all the things that a landowner might wish to do,” including granting right of “use”). 5. See, e.g., J.H. Baker, An Introduction to English Legal History 427 (4th ed. 2002) (describing how easements became “distinct property rights in themselves, . not merely . incidents to the ownership or occupation of property”). 6. See, e.g., Jesse Dukeminier, A Modern Guide to Perpetuities, 74 Calif. L. Rev. 1867, 1868 (1986) (noting one purpose of rule against perpetuities is “to limit ‘dead hand’ control over . property”). 1776 COLUMBIA LAW REVIEW [Vol. 113:1773 makes many of its claims to efficiency through “creative destruction.”7 Most obviously, this means replacing inefficient uses of property with superior ones. This creative destruction also, however, occurs at the conceptual level. The Industrial Revolution exposed many longstanding doctrines of property law—often expressions of the principle of first in time, first in right—as hindrances to social and economic progress.8 Property law soon disavowed these principles. Although this creative