But Who Gets the Driveway? Teaching Property as LPE (Sort of)

Jedediah Purdy —

I wrote a lot about Property between 2005 and 2010. I came to the topic as a new law professor because it struck me as something like constitutional law for the economy: the basic arrangement of power, cooperation, and legitimacy. The writing I did then was about how property law creates the terms on which people cooperate. By allocating the resources we all need to live, act, and pursue our projects, it sets up the scope of options and the bargaining power between, say, an investor and an entrepreneur, a business owner and an employee, a homeowner and an undocumented worker doing yard maintenance. The distribution of control over resources is also the distribution of control over lives—one’s own and others.’ It empowers people and, by the same token, makes us vulnerable to one another’s demands.

Property law is often taught as a kind of elementary version of the theory of voluntary market cooperation generally: without ownership, we would fall into the tragedy of the commons, but with it we achieve both economic efficiency and autonomy-respecting uncoerced collaboration. I was interested in the underbelly of this theory: how the ideal landscape of free cooperation is in fact terribly uneven, marked by towers of wealth, highlands of security and capacity, and full of vulnerable lowlands, populated by people who mostly find they have to take what they are offered. The point was critical but also reformist—to look for places where different regimes could make the terms of cooperation more genuinely equal, which ideally would require people to enlist one another’s energy by appealing to their wishes more than to their fears—to make “an offer you can’t refuse” a slogan of joyful acceptance rather than unshakable threat. If the usual utopia of Property is Ronald Coase’s frictionless allocation of all resources to their wealth-maximizing uses, regardless of distributional results, I wanted to introduce an alternative utopia of truly voluntary cooperation, focused not first on the use of resources, but on the shape and tone of the human relationships that arise from a pattern of control over resources.

I stopped writing in Property because I’d said my piece, but also because I found the field and subject matter recalcitrant. Today my Property students would probably not think of the class I teach them as a specifically LPE course, and they would probably be right. Some are likely relieved. Others might be disappointed. On some days I think of this as a failure on my part. On other days, I think it reflects deep difficulties in teaching from the LPE frame, some specific to property, some general.

Difficulty 1: Role Morality and Professional Education.

Temperamentally, I understand the professor’s role as that of a facilitator with a responsibility to make every student welcome and to give every argument in play its strongest form. This tends to imply downplaying my own point of view. This feels particularly important to me in a first-year class, in which the students have chosen neither the topic nor the professor.

The fact that law school trains lawyers who have to take the bar exam also weighs on my teaching choices. I feel an obligation to teach recondite material that the students will meet again when they’re getting certified for practice. This means that I teach future estates, the rule against perpetuities, adverse possession, and lots of other doctrines that are only minimally about anything other than the technicalities of doctrine. I was glad not to be encountering those for the first time when I prepared for the bar, and I feel I owe my students the same.

Difficulty 2: The Content of Property

There’s a line of property scholarship—a branch of “Progressive Property” that finds within some of this doctrine a set of principles of equity and fairness that can be readily generalized to think about distributive justice—sort of like getting from nuisance doctrine’s “Don’t use your property in a way that harms another’s” to “If property is so great, let’s make sure everyone has some.” But I think relatively conservative lines of scholarship have an intrinsic advantage in making sense of Property’s core operation: It really is the law of, and for, those who have property.

I find that considerations of distribution and power arise quite organically in my other first-year course, Constitutional Law. There we ask why poverty isn’t a suspect class, why education and housing aren’t fundamental constitutional interests, how the Supreme Court could decide Roe v. Wade and then uphold the Hyde Amendment banning abortion funding under Medicaid, and what happens to democracy when campaign spending is protected as free speech. We talk about how Washington v. Davis shielded structural inequality from constitutional scrutiny, and how color-blind jurisprudence now seeks to protect certain aspects of it from even legislative reform. And this is all without mentioning the New Deal and the relationship between constitutional legitimacy and democracy. At its base, constitutional law is about the terms of legitimate power in a self-governing community of equals. The deep conflicts over what those terms should be organically raise questions at the heart of LPE—about public and private power, the economy and the state, the ironies of treating inequality as a mere side-effect of state neutrality or personal freedom.

So, it’s hard. Well, lots of things are hard. What do I do in Property?

1. Say something about where property comes from and who has it. I teach Johnson v. M’Intosh as a case about dispossession, which it obviously is, but also as the basis of the centuries-long process of the active creation of all the private property in the country by a series of explicit acts of sovereign power. This is a good time to set out who has property in the country, and how much it matters—real estate is about 2/3 of median household wealth among homeowners, and both homeownership rates and household wealth are much lower for black than for white families. Although Property doesn’t contain a lot of distributional themes in its way of deciding fights over who gets to use the driveway, it rests on thoroughly distributional judgments that have embedded deep inequality in the system. This theme returns in a treatment of exclusionary zoning. Although the New Jersey Supreme Court’s Mount Laurel case is an outlier in trying to put some limits on exclusionary zoning, the time in class understanding how exclusionary zoning works highlights the ways that who has property is a dynamic question across time, with new legal regimes helping to reinforce existing, inherited lines between who is in and who is out.

2. Teach the state-action doctrine. The same constitutional lines that cordon private power off from constitutional scrutiny show up here on the “private-law” side of the line. I teach the case of Evans v. Abney, concerning a segregationist Georgia senator’s grant of a park to the city of Macon, on condition that it remained segregated. After the Supreme Court ruled that the city could not constitutionally operate the park on a segregated basis, the Georgia courts ruled that the violation of the grant’s condition meant that the park became the private property of the senator’s heirs.

I usually teach at least one of the cases involving First Amendment access to private property, and usually Shelley v. Kraemer, which invalidated racially discriminatory private covenants. In all of these, I present the cases as an opportunity to learn the Realist doctrinal trick of blurring and de-naturalizing the received doctrinal categories, showing how it would be possible to get different results by drawing out the framing concepts in different ways. I feel pedagogically good about this because the first-year skills involved are so essential. The specific application, especially in conjunction with understanding the political origins of property rights in U.S. history, should at least prepare students for a productive engagement with the state-action doctrine when they re-encounter it in Constitutional Law.

3. Teach some intellectual property and some public lands law. I don’t do a lot with these, but I do enough to highlight some continuities and contrasts with real property. All these areas of law are concerned with what I tell my students to call “the resource question”—what is to be done with scarce and valued resources for which people have very different potential agendas and desires? We talk about the market-making answer to this question that private physical property offers, the central role of immaterial and non-rivalrous commonses in IP, and the ways that public ownership and management (as with parks and wilderness areas, but not only these) can prioritize non-market goals such as mere existence or preservation, and non-market terms of access such as a public right to be outdoors. Of course the public trust doctrine contains hints of all this, but the very different strategies of much more important areas of law—IP and public lands, the former constituting major industries and the latter governing about thirty percent of U.S. acreage—seem much more instructive. Of course I highlight that political governance of resources has lots of problems that private ownership often mitigates; but the point is that there are multiple legal tools for resource governance, all based in sovereign decisions, but with some tending to submerge their political dimensions (Property) while others keep active legal-political decision front and center (IP and public lands).

IP, of course, is a great opportunity to point out that when dynamic efficiency (innovation) is steered by return on investment, you get a world shaped to the preferences of those who have spending power. Male-pattern baldness and marketing apps attract capital in pursuit of patents and software copyrights. The diseases of the poor depend on philanthropy or public spending. This is a microcosm (a pretty large one) of how a market-making property system addresses human needs—in terms of the wealth backing those needs.

4. Teach the Coase Theorem as a problem. I frankly find Coase’s approach pretty alienating, a lesson in how posing a question in a way that highlights all the wrong issues makes it hard to have the conversation you really want to have. The thought experiment that so charms a certain kind of mind confuses the students—what’s the point of imagining a world without transaction costs when the point is to tell courts how to address transaction costs—when the real issue seems to me to be whether and when wealth-maximization is an appropriate goal for a body of law.

What I really want to do here, which goes a little beyond what I feel licensed to do with first-year Property students, is to lecture a little on the way public and private law got divided in the twentieth century, why legal thinkers were drawn to treating wealth maximization as a plausibly neutral goal (and to trusting the tax system as a notional backup to achieve any desired redistributive top-off), and why that seems different to many of us now. But at least highlighting that this private-law framework that the students will encounter again and again depends for a lot of its force on the implicit ideal of wealth maximization seems to promise adding something to their understanding, and so does priming them to debate whether it’s a sufficient ideal.

5. Teach the Fair Housing Act. It’s a key example of how a regulated market works, and of the differences between formal equality (which is much better than formal inequality) and substantive equality (inasmuch as non-segregated markets are still pretty segregating).

There’s a lot more one can do. I’d like to teach Patricia Williams on norms and formality, and the ways formalities are beneficial to vulnerable/outsider people in some cases (though not in others). I used to teach Robert Hale’s classic Realist arguments about how all voluntary agreements (among neighbors, but in his examples chiefly for employment) are the products of legally constituted and almost invariably disparate bargaining power. In principle, I think this should be central to any LPE course on Property or Contract. In practice, I haven’t put it back in my Property syllabus, though maybe I will.

Property is just as foundational as the Constitution. Whether a legal order treats all of its members as equal participants in a project of free social cooperation and self-rule depends on how it defines and allocates their control over the good and useful things of the world, just as much as on how it defines and allocates their rights against the government. It is an opportunity to reflect on interdependence, distribution, positive rights, and the differences between formal and substantive equality, among other themes. But I don’t know that I have ever succeeded in teaching a Property course that accomplishes all of this.

These reflections form an example of how difficult it can be—at least for some of us—to try to teach against the common sense of a field while also doing full justice to a standard topic for students who need to understand the field as it is and as others will expect them to have mastered it. Although property is very much about power and the terms of democratic life, Property often is not, and stitching the two together is a challenge for me. I hope this forum will be, among other things, a source of lesson in how others do it.


Jedediah Purdy (@JedediahSPurdy) is the Robinson O. Everett Professor of Law at Duke Law School.