Acquiring property is a central part of the modern American vision of the good life. The assumption that accruing more land or chattels will make us better off is so central to the contemporary preoccupation with acquisition that it typically goes without saying. Yet an increasing body of evidence from psychologists and economists who study hedonics-the science of happiness-yields the surprising conclusion that getting and having property does not actually increase our subjective well-being. In fact, it might even decrease it. While scholars have integrated the insights of hedonics into other areas of law, no scholarship has yet done so with respect to property.
This Article maps this novel territory in three steps. In Part I, it summarizes recent findings on the highly conflicted effect of the acquisition of both land and chattels on subjective well-being. In Part II, it explores the implications of these findings for four leading normative theories of property law, showing that in different ways the evidence produced by happiness studies undermines the core empirical propositions on which these theories rest. Part II also explores the potential of subjective well-being as a framework for assessing the optimal regulation of ownership. Finally, Part III investigates how looking at property through the lens of happiness can help us see this ancient body of law in a new light. Evidence from happiness studies casts doubt on some policies (state promotion of homeowner ship), while suggesting the appeal of others (tax incentives and disincentives designed to nudge acquisition in the direction of greater subjective well-being). Happiness analysis also suggests promising new insights about related aspects of property, including law's attempts to prevent dispossession, the proper allocation of public versus private land, and the nascent sharing economy. This Article concludes by showing why these findings actually tell an optimistic, if nonobvious, story about the nature and future of property.
Table of Contents Introduction: Property as Happiness I. The Hedonic Psychology of Property Acquisition A. Hedonics: The New Science of Happiness B. Happiness, Law, and Property 1. Happiness and Law 2. Property and (Un)happiness 3. Toward Happier Acquisition II. Happiness and Property Theory A. A Happiness Critique of Leading Property Theories 1. Utilitarianism 2. Personhood 3. Property and (Negative) Liberty 4. Progressive Property B. Toward a Happiness Theory of Property III. Happiness and Property Law A. Happiness and Homeownership Promotion B. Nudging Property Toward Happiness 1. Choice-Burdening Strategies 2. Choice-Enhancing Strategies C. Beyond Acquisition Conclusion: Acquisition and Optimism INTRODUCTION: PROPERTY AS HAPPINESS
The Declaration of Independence begins with the stirring assertion that among the "unalienable Rights" with which we are all "endowed by [our] Creator" are "Life, Liberty and the pursuit of Happiness." (1) The Due Process Clause of the Fifth Amendment similarly guarantees that "[njo person shall be ... deprived of life, liberty, or property, without due process of law." (2) These two great documents concur on the importance of life and liberty, but while the Declaration of Independence completes the triad with the freedom to pursue "happiness," the Due Process Clause instead privileges "property."
In the present-day United States, though, one might wonder whether there is any daylight between these two formulations. Modern American consumer culture tends to equate the acquisition of real and personal property with happiness itself. (3) As Bo Derek famously quipped, "Whoever said money can't buy happiness simply didn't know where to go shopping." (4) Our vision of the good life is punctuated with getting things--from a teenager's first car to a wedding ring to a family home (which is equated ad nauseam with the "American dream" (5)) to our final resting place. (6) The state supports this push towards acquisition in a number of ways, (7) most evidently in its approach to residential housing. State rhetoric equates housing with the American dream and promotes the purchase of family homes with an edifice of incentives ranging from the mortgage interest tax deduction to government-sponsored entities like Fannie Mae and Freddie Mac, which exist primarily to facilitate mortgage origination.
In light of the constant cultural and legal push toward ownership, it would seem that acquiring property makes owners better off. But does it? A growing body of literature at the nexus of social psychology and behavioral economics--"hedonics" for short--suggests that, in at least one very important way, it may not. Work in this field has produced a trove of data that complicates the dominant story of American property triumphalism: acquiring things--including and especially real property--does not appear to enhance owners' subjective sense of well-being, and under many circumstances may actually decrease it. These findings are driven to a large extent by our tendency to hedonically adapt to our circumstances, so that even after purchasing a great new watch or a fancy car, it soon becomes just a background fact in our life, and the momentary happiness over the acquisition of such things fades away (and may even be replaced by regret at making a foolish purchase). Getting property can also make us more materialistic (which is strongly associated with unhappiness (8)) and less able to savor life's small pleasures. (9) But the lesson of this new research is not that property ownership is unequivocally harmful to owners' subjective well-being. Acquisition can increase happiness when it is thoughtful and motivated by nonmaterialist goals. As Elizabeth Dunn and Michael Norton, two leading scholars in the field, show, "If you think money doesn't buy happiness, then you're just not spending it right." (10)
Surprisingly, while the insights of hedonics generally have been explored in other legal scholarship, these findings remain largely unexplored with respect to property law. This Article teases out two major implications from the empirical evidence about the troubled relationship between property and happiness. First, the proposition that acquiring land and chattels often reduces our subjective wellbeing complicates, and may even severely undermine, many of the leading normative theories animating property law as well as the substantive law of ownership itself. Scholars have justified the existence of legal protections for ownership on a variety of bases. These justifications include the notion that property enhances social and individual wealth, provides a bulwark against statist oppression (or, contrariwise, that it creates a richer sense of community among neighbors), and supplies a critical outlet for self-expression and an embodiment of essential personhood. (11) But if hedonics scholars are right that property ownership can reduce our subjective well-being, constrain both our sense of freedom and our community ties, and does not make up a necessary condition for self-realization, then the empirical foundations on which each of these accounts are based fall away. By contrast, happiness itself may provide the most coherent framework for how to allocate and incentivize the acquisition of property in order to maximize individual and social welfare. But at the very least, the fact that acquiring and owning land and things may reduce our subjective well-being is an important input into any consequentialist approach to regulating ownership.
Regardless of how exactly happiness cashes out theoretically, the findings of the hedonics literature matter greatly for the positive law of property. These insights supply a novel framework for thinking about the governance of ownership. For example, the push toward buying single-family homes--abetted by both government rhetoric and legal enticements for prospective homeowners--may do more to reduce than enhance subjective well-being. This suggests that the federal government would be better off abandoning undifferentiated tax relief for homeownership, and should instead carefully calibrate incentives to encourage the kinds of acquisition of residential property that are more likely to result in happiness. Hedonics also points toward a bevy of other ways to nudge acquisition in the direction of greater happiness, from burdening purchase decisions that unwittingly threaten our subjective well-being to simply informing people about the nonobvious happiness upsides of getting particular kinds of real or personal property.
The new psychology of hedonics shows that there actually is a big difference between property and the pursuit of happiness, and that the two are often at odds. But, as the Conclusion emphasizes, this Article tells an optimistic story about property. It seeks to provide a promising new way to think about property from a normative perspective that indicates how we might regulate ownership to enhance subjective well-being.
This Article explores this novel territory in three steps. Part I briefly outlines the new science of hedonic psychology in general terms, and then investigates in detail the particular implications of this new research for the acquisition and ownership of both real and chattel property. Part II analyzes the implications of this research for normative theories of property, showing how it both undermines their foundations and provides a superior alternative for how to think about governing property. Part III both identifies current policies that are likely detracting from owners' happiness and suggests several ways to nudge property law in the opposite direction. Finally, the Conclusion reflects on the hopeful side of thinking about property as a means to enhance our subjective well-being rather than regarding possession as an end in itself.
THE HEDONIC PSYCHOLOGY OF PROPERTY ACQUISITION
Why do we acquire property? One simple answer...