Professor Gregory Alexander: the newest inductee in
the Property Rights Hall of Fame
Jim Burling, discussing Prof Alexander's
property work.
Our panel at today's Brigham-Kanner Property Rights Conference at William and Mary Law School in Williamsburg, Virginia, which was focused on the work of this year's Brigham-Kanner Property Rights Prize, Prof. Greg Alexander, was tasked with addressing this topic:
"Equity has long had an influence on the delineation and development of property rights. In addition to defining the extent of property rights and influencing a court’s choice of remedies, equity has played a role in governing or managing the impact of property rights on other interests. This panel will discuss these and other topics related to the role of equity in property law, including the relationship of that role with constitutional protection of property rights."
Speakers on this topic included Profs Henry Smith (Harvard) and Samuel Bray (Notre Dame), and fellow public interest practitioner Timothy Sandefur.
Here are my remarks.
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Equity’s Role in Defining Property Rights
Congratulations to Professor Alexander on this, his latest honor.
Before we begin, I’d appreciate us recognizing the William and Mary law students, and young lawyers in attendance. Thank you for spending time here in the room, engaging on a topic – property law and property rights – that, unfortunately – and wrongly, in my opinion – is being treated more and more as an afterthought in other law schools, and legal circles. Here at William and Mary Law, we’re doubling down and maybe swimming a bit upstream, because we recognize property as highly relevant, and a subject of teaching, study, and scholarship.
I must admit to struggling with our topic: “Equity’s Role in Defining Property Rights.” Like a lot of academic descriptions, that could mean a lot of things to a lot of people.
Your world frightens and confuses me.
With apologies to Phil Hartman and Jack Handey.
photo credit: Steve Davis
It could mean “equity” in the Smithian sense. Property as formalized “law,” in contrast—or maybe not in contrast—with equity, or as he has put it “[a]n equitable safety valve”—(but perhaps a valve, like the Chancellor’s Foot, without standards). I should avoid that, I thought, because with Professor Smith here to correct me and explain it himself—in a room full of law school gunners, all I would accomplish is self-embarrassment.
Or it could mean the equitable remedy. Property, after all, supplies the one big exception to the usual rule that the usual remedy for breach of a sales contract is damages, and not an injunction. Nope, too :contracty: for today's program.
Or it could mean, as the Supreme Court held last term in Tyler vs Hennepin County (shout-out to Christina Martin up in the back row today) that “equity”—the owner's stake (her property) remaining in property after encumbrances—is private property subject to the Just Compensation requirement when it is acquired, or perhaps more conceptually, pressed into public service by dumping into the County’s General Fund. Tyler, where the unanimous Court—the unanimous Court!—recognized the very Locke-ian view that Ms. Tyler’s lifetime of labor (reduced to the money with which she acquired her home), is “private property” that the County could not simply grab because she neglected to pay her property taxes. Her “pursuit of Happiness” happened to find form in her home, and she did not forfeit that Happiness just because she neglected to pay the Crown its tithe for a year or two.
Lawprof Michael Wolf (Florida) and Christina Martin (PLF)
discussing "Emerging Issues"
But we are lucky to have Christina here, so you don’t need to hear the details from me, and she can tell you what it was like to be in the room where it happened.
Or, finally, it could be some other vision of property as a form of equity. Instead of property being viewed as a bundle-of-rights or the foundation for personal autonomy or individual liberty, it should be viewed as a set of rules applied to promote the collective good, or well-being. And who could argue for as seductive a theory whose goal is human flourishing? Is private property subject to a "reciprocal obligation" to maximize social good? To put it in private law tort terms, do property owners have a duty to rescue others whom they did not endanger? Prosser says no; why not Nichols? Indeed, both our First and Second Founders seem to have said exactly the opposite.
But as one previous Brigham-Kanner Prizewinner commented at this Conference a few years ago, that year’s Prizewinner “loves property so much, he thinks everyone should have yours.” But alas, as above, if I chose that as my gloss on property as equity, I would also be faced with the daunting task of, in effect, “talking back” to my Professor in class. I was a back-of-the-class student in law school—and even gunners know you don’t tug on Superman’s cape.
So let me lay this perhaps counterintuitive notion on you:
Private property and the individual’s right of ownership of private property—including the right to exclude others from using it, taking it, or occupying it—is at its core an equitable notion. After all, property is the great equalizer. Not in the sense that we are all guaranteed a share of the pie, but rather that ownership and protection of private property rights affords the opportunity for a share of the pie, both economically and more importantly, politically. As Prizewinner Jim Ely quoted in his book title, it indeed is the “Guardian of Every Other Right.” If you possess property – and the law protects your property rights – you have a unassailable stake in the democratic enterprise.That kind of "equity."
To illustrate that, the story of one of my mentors in the law, an Old School San Francisco trial lawyer. As a courtroom lawyer, he was a simple guy (as he always said). He was a successful courtroom lawyer back in the day before Escobido and the right to counsel and public defenders -- 22 death penalty defense cases with 21 acquittals, one hung jury --but he never practiced property law a day in his life. He had become a lawyer after growing up during the Great Depression and then somehow surviving the entirety of World War II -- December 7, 1941 to V-J Day -- as a United States Marine.
It was, in his words, lawyering was "a living," and beat storming various island across the Pacific under machine gun and artillery fire. He found success as a lawyer and bought some San Francisco property -- a home, his law office, and even a couple of residential rental properties.
As he was nearing retirement, I asked him what he would do if it all came crashing down again, just like in '29, or '41, and the world went to crap. What would you do if you had to start all over again?
He responded that he took comfort in the fact that he could always go "camp on my land." That if the world started again on the hellish path, his last line of security was his property. He'd seen rough times. Worse than any of us today ever has. And his property was the one place he could call his own. That's where he'd make his stand.
That seems true for many of us. Property is where our families are. The things we've turned the sweat of our brows into. Where we make our stand.
So should it offend our sense of equity when—purportedly in the effort to equitably ensure that no one is kicked out on the street during a pandemic—every level of government rewrites the most essential term in a residential and commercial lease—the property owner’s agreement to turn over to the tenant the right to occupy and exclude, but only as long as the tenant pays timely rent—that most courts conclude that the right to exclude – timely rent – has been forfeited indefinitely, wholly ignoring the autonomous mutual agreement otherwise. That the costs of commandeering for public pandemic housing should be borne by property owners alone.
Or should it offend our sense of equity when a municipality prohibits property owner from even asking whether a prospective occupant has a criminal record? You must include everyone. Equitable, perhaps. But not really, if instead of seeing the equitable distribution of property as the measure of human flourishing, we view property’s role as focused on its equality-forcing individual qualities.
How about when the sovereign compels a pharmaceutical company to give away its product for free, because people need it?
I don’t think this is a novel idea. The common law concepts of “property” is an equitable notion in that the custom, as determined by the community itself acting mostly through juries, established which sticks in the bundle are—in some particular application (think private nuisance law, for example)—deserving of legal protection.
Today we might call that a determination of how far may regulation go into intruding on property and property rights before it can be deemed to go “too far” and “in justice and fairness” (talk about equitable language) is a public benefit that must be borne by everyone benefited. These “ad hoc factual inquiries” (more equitable language) should, it seems, be made by the same juries that have for a millennium been determining the ultimate question in every property case: What is Property? Is the right, the autonomy, advanced by the claimant, a property right deserving of recognition in our custom?
Who better understands what outcome will maximize "human flourishing" as our Prizewinner advocates than a jury? Yet the most common refrain I hear today is about how judges should view property.
In my view, judges' views of property are less important than a jury's view.
Lawprof Molly Brady (Harvard) explaining the work
of the Restatement of Property (Fourth)
But these days, it has morphed into a judge question—the scope of the property as determined by the Chancellor’s Foot, rather than the equitable (and dare I say democratic) institution of the jury.
I think there’s no better (or perhaps “worse” is a better way to put it), illustration of the failure of the equitable power of property rights than our collective history of denying everyone the equal opportunity to own property – and every stick that comes along with ownership – (including, yes, the ability to keep it). For the longest time, the law only asked for the views of Pierson and Post, never bothering to ask the fox about his. Excluding everyone from the human right of property ownership and property rights, and their equitable effects—is a tragic story, and one that we’re presently confronting in the search for our “more perfect” Union.
Before I sum up, please allow me to take the opportunity of having the dais to venture a little off-script. We all recognize what Lynda Butler has done for this Conference, for the Property Rights Project, and for the Law School. But I want to thank you, Lynda, for being my Dirt Law Spirit Guide, and especially for entrusting me with your beloved Land Use class upon your retirement. It was then that I told myself “Robert, my boy, when Lynda Butler asks you to teach Land Use, you know you’ve made it.” Thank you, Lynda, I will never forget your trust and kindness.
Finally, being here at the lectern at the Brigham-Kanner Conference is the Property Law equivalent of standing at home plate at Yankee Stadium in October. The Super Bowl of property law and property rights. Top of the mountain. No better place.
I’m honored to be sharing this time with you.
Mr. Moderator, I yield the balance of him time. I welcome the Court's questions.
Thank you.
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Final note: this is an excellent conference for Dirt Law practitioners, scholars, and jurists. If you have not attended in the past, you really should consider joining us for the 21st edition next year.