It’s Mine, and Yours

Rashmi Dyal-Chand –

I teach in a law school where most students and faculty pride themselves on falling somewhere along a spectrum of progressive, extremely progressive, socialist, and left anarchist. Thus, every year, usually within the first month of starting my first-semester property law course, I find myself surprised that the vast majority of my students appear to be intuitively and deeply committed to the idea that property ownership is and should be fundamentally about exclusion. Many of the same students who demonstrate depth of understanding about issues of discrimination, inequality, and power, voice the intuition that exclusion is somehow essential to those of us in the 99% (including their family and friends) without really considering the ways in which exclusion produces and maintains maldistribution.

Regularly, the first instance when students voice this commitment during class is when we discuss Jacque v. Steenberg Homes, in which an elderly couple sued a manufacturer of mobile homes for trespass when the defendant crossed an unused portion of their land for the purpose of delivering a mobile home to their neighbors. I have long used Joe Singer’s casebook, and I start my course with a unit on trespass that begins with State v. Shack. Thanks to Singer’s pioneering analysis of public accommodations law as central to understanding the principle of access in property law, I spend much of the trespass unit discussing the balance in trespass law between exclusion and access. Yet when we get to Jacque v. Steenberg Homes, students voice their intuition that the Jacques had the right to exclude the mobile home company from their property. “Why?” I ask, “Their property was in no way harmed by the defendant’s use of it.” They typically answer with some version of: “Because the defendant is a big corporate entity and the Jacques have very little power. The only power they have is over their property. We can’t take that power away.” “Well,” I ask, “what about the fact that mobile homes are a major source of affordable housing in this country? What if the company was doing its best to limit the costs of installing affordable housing on the neighboring property in order to avoid transferring those costs to the Jacques’ neighbors, who may not have been able to afford those costs?” For years, when we had this conversation, the students remained resolute. They said, for example, that the larger point still remained that corporations have too much power in this country and that property rights are our defense to such power.

Various versions of this intuition used to pop up in ensuing discussions of adverse possession, implied easements, and eminent domain. For approximately my first decade of teaching property law, I puzzled over these conversations. How could I change a viewpoint that many of my students appear to have formed before they entered grade school? How could I engage them in a conversation about the pragmatic limits of the right to exclude and about the demographic realities of who benefits most from this right? Why, in the students’ minds, is property somehow exempt from interrogation as a product – and instrument – of market behavior? Why shouldn’t property ownership be subjected to the same kind of interrogation (indeed, suspicion) that my progressive students bring to their exploration of corporations and business activity?

Then, during the Great Recession, I began to experiment actively with the idea of sharing as a counterintuition to exclusion. As a parent, I talk with my children all the time about sharing. I want the instinct to share to be at least as dominant as the instinct to respect ownership. Of course, this can be confusing for a child: Why should I have to share my candy when my friend is eating all of hers because, as both you (my parent) and she point out, the candy belongs to her?

In property law, sharing is important because it is a necessity. We can’t do without it, even though we have structured a market ideology that hides this fact. Implied easements, which provide relatively permanent rights of access to another’s property in the absence of an express agreement by that owner to allow such access, are a paradigmatic example. These easements always used to drive my students crazy. Understandably so, since the doctrinal tests seem downright silly without some unifying policy justification or explanation. I find that sharing is a productive example of such a policy justification. Implied easements arise from situations in which basic notions of fairness and justice replace the crystals of (bundled) ownership and exclusion with the “mud” of sharing, to borrow Carol Rose’s foundational conceptualization. But they are also typically situations where questions of fairness involve owners on both sides of the dispute. Or where the most basic civil or political rights are at issue, as in public accommodations law. Or where the value of sharing is captured in rhetoric more than in remedy. Of course, it is important to teach this. To understand sharing as an important “background” rule is to understand a great deal about contemporary property doctrine.

To my mind, however, it is also useful to talk about sharing beyond what is absolutely required to maintain the instrumental and rhetorical primacy of exclusion. I find that sharing is an accessible way to move from helping students to understand the status quo to helping them to think beyond it. As I have discussed elsewhere, relegating sharing to the role of exception to a dominant rule limits the richness of sharing as a legal norm.

In property class, I most frequently use sharing to flip assumptions in any given discussion. Sometimes, I ask a simple question: What if the judge were to assume that the nonowner in this case had a “right to share”? The students know they can’t leave the conversation by simply saying that could never happen, so they pause to really think about it. And what they realize, of course, is that the rule of law would still prevail, people would still own property and engage in market transactions, and in short, the world would continue turning.

Sometimes, I ask students to work with me on fashioning a remedy that encourages or requires sharing. Could we revise the zoning code in this particular urban neighborhood, by way of special exceptions or other presumptions, to create incentives for neighbors to share parking areas? What would happen if the judge in this prescriptive easement case decided that the remedy was for the parties to share this alley rather than designating one or the other party as the owner? Should this public or private entity have a duty to share this parcel of unused land with homeless individuals, and what factors should give rise to such a duty?

Often, I find these discussions lead to much more active engagement with questions of political economy: Which market participants in this particular case benefited from a well-defined right to exclude? Which institutions were responsible for protecting the right to exclude? Are these the same institutions that could or should protect a right to share? Just this past semester, when I raised the possibility of sharing in a discussion about nuisance, a student asked me whether exclusion was as important in other capitalist systems as it is in our American system of capitalism. Another student immediately asked, “Isn’t this kind of sharing only possible in a communist system?” In the discussion that followed, we talked about the right-to-roam law in Scotland, the coordinated market economy of Germany, and the South African  case as examples of sharing in other capitalist systems. We also discussed whether, and under what circumstances, these forms of property sharing would be possible in Boston, or in Houston, or Newark.

In short, I have found sharing to be a useful device for getting at what is sometimes most frustrating about teaching property law, namely the protective instinct toward exclusion.

By no means am I suggesting that sharing is the silver bullet for progressive property law or for the teaching of property. But I do believe that it is a productive way to open a conversation about alternative paradigms in property relations and property law.