Essential Property

Abstract

For a sizable swath of the U.S. population, incomes and wealth are insufficient to cover life’s most basic necessities even in the most ordinary of times. A disturbingly resilient explanation for this state of affairs rests on the view that resource inequities are avoidable through self-reliance, a stance that invites observers to see people in poverty as morally suspect. This Article advances a counter-view in contending that the widespread lack of essential resources did not simply arise naturally via individuals’ life choices but instead has been, in very meaningful part, created and perpetuated by our system of property laws.

The proposition that property—a social institution—generated the extant mismatch between incomes and wealth, on one hand, and critical expenses, on the other, is frightening: it reveals that we, the people, collectively and over time fashioned this staggering predicament out of whole cloth. But this same proposition is also cause for hope. If property laws helped create this predicament, perhaps property laws can help solve it. Against this backdrop, the Article charts a justice-inspired course for the reformation of property’s background rules. This course is centered on a series of norms appropriate for property governance in a free and democratic society, including circumstance sensitivity, anti-discrimination, realistic opportunity, and legal interdependence.