DISCIPLINING UTOPIA: THE FUTURE OF COOPERATIVE LANDHOLDING.

Author:Kroncke, Jedidiah J.
 
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  1. INTRODUCTION 454 II. TURNING BACK THE CLOCK: THE CHALLENGE OF RE-COMMUNALIZING LAND 467 A. The American Tradition of Utopian Land 467 B. The Rise and Fall of Social Activism in American Intentional Communities 471 C. The Flawed Imagination of Traditional Communal Governance 479 III. THE COMPARATIVE CONTINUUMS OF COLLECTIVE LAND HOLDING 483 A. Community and Land as Global Conundrum 483 B. Participatory Norms and Communitarian Land Holding 486 1. Community Through the Corporate Form 486 2. The Corporatization of Community Land Trusts 492 C. Corporate Flexibility or Fiduciary Self-Discipline 500 IV. CONCLUSION 505 I. INTRODUCTION

    The legal and economic history of the United States is far more radical than is generally acknowledged today. Many ideas now considered settled about what is both genuinely American and "natural" as to how the nation regulates core aspects of its society were very much in contest at the turn of the twentieth century. The progressive dislocations of industrial capitalism generated a pace of social change which unfurled far faster than the traditional mechanisms of law could track, especially in order to serve the needs of less enfranchised members of society. (1)

    With growing intensity over the nineteenth century, immigration, urbanization, and the end of slavery unsettled the spatial and demographic categories which had previously shaped the structure and composition of communities across the nation. One result of this tumult was a rise in public and private initiatives to manage and channel these changes into new legal forms. From religion to work, the syncretism of ideas old and new led to conflict and experimentation far more diverse than what is now considered normatively "American." And no realm of law witnessed more radical experiments than that of property. (2)

    It is not possible to fully catalog here this diversity of legal thought and practice, but its consistent volume establishes that the spirit of experimentation in property is a long-standing American tradition. Even before the more intense industrialization of the American economy, religious groups had come to the United States to attempt to recreate their imagined utopias of communal work and land as part of their view of the American promise. (3) The accessibility of land in the United States was historically easier than it had become in Europe--at least once indigenous claims were nullified or marginalized. If one had the resources do to so, exit to unsettled land to try and recreate a new, or recapture an old, system of land holding appeared in practical reach. If local political will existed, or state regulation was sufficiently indifferent, this same recreation could be attempted in urbanized areas.

    The historical relationship of government to private land in America has also been one of recurrent intervention, as evident in the foundational acts of eminent domain through which land ownership was reordered and redistributed from colonial times onwards. (4) For a non-communist nation, the United States still has internationally high levels of public land ownership, (5) the scale of which has led to numerous administrative creations and re-workings at the state and federal levels. (6) Today the United States Department of the Interior and the United States Department of Agriculture oversee diverse land management practices for wide swaths of national territory. (7) The central role of public stewardship over formal and residual public land drove Joseph Sax's popularization of the public trust doctrine to grapple with the downsides of ignoring this historical legacy. (8) That there was a significant shift in the ideology, if not practice, of government intervention in land use can be seen in the aggressive American promotion of land reform in post-World War II Japan, Korea, and Taiwan, but then its later Cold War retreat from such promotion in the Philippines and Latin America. (9)

    What is less well-known is that the United States has the highest global level of privately-owned collective land held in a variety of conversation, community and local land trusts. (10) There are lost, but recently re-explored, traditions of American political economy which advanced extensive critiques of the commodification of land at the heart of industrial transformation. (11) At the turn of the twentieth century, the most prominent American economist was Henry George. (12) George explicitly rejected the rental markets derived from absentee land ownership and developed a theory of taxation on unimproved land--the land value tax--that many felt could exclusively finance an extensive welfare state. (13) George's ideas reflected a thread in long-standing critiques of privatized land use among classic political economists, including Adam Smith, and his ideas were echoed for decades into the twentieth century by social critics such as Thorstein Veblen. (14)

    Parallel to these intellectual trends were private initiatives to reorder land ownership either directly linked to George's ideas or of idiosyncratic inspiration. (15) These initiatives became a consistent, if minority, aspect of American landholding as they tried to return to the more communal patterns of land ownership that preceded industrialization--and the social life imagined to have accompanied them. (16) Whatever their normative value, a variety of these private communitarian initiatives continue, and variations are now discussed with increasing frequency as solutions to pressing issues of social inequality and economic citizenship. (17) Notably, many post-Civil War attempts to achieve racial justice in land embraced George's ideas and attempted to use land trusts to insulate minoritized groups from discrimination while rebuilding their communal strength. (18)

    The primary secular trend which these initiatives agitate against, or at least seek to adapt to, is regulating land through the prism of individualized norms distinct from collective land use interests. As Ugo Mattei has recently noted, the centrality of individual claims to land is not purely novel, but the sum weight of the human history of landholding is primarily a collective one. (19) The legal regulation of property through the dominant lens of private ownership was an unrealized ideal only argued for before its recent ascension as a material reality in some countries. (20) As rapid as the normalization of the individual property rights frame became during the twentieth century, this ascension carried with it a persistent tension over how this individualized frame relates to community life and the formation and regulation of common property institutions at the micro and macro-levels of society. (21)

    The normative justifications for privatization in land constitute their own wide-ranging intellectual history. But in nuce they are captured by the now classic trope of the "tragedy of the commons" popularly attributed to Garrett Hardin. (22) As one instantiation of Mancur Olson's influential articulation of "collective action problems," (23) this tragedy results from individual opportunism in the exploitation of collective resources that causes their rapid exhaustion when governed by the increasingly weak social norms of modern society. (24) Given that this idea gave normative support to strengthening individual property rights, it is the very exemplar of a self-fulfilling prophecy. As industrial capitalism disrupted and destabilized traditional patterns of life and social organization, so too did it bring into existence the need to re-regulate land following its own individualistic logic. (25)

    In modern property law theory, this development has left scholars struggling over the best conceptual frame through which to disentangle use rights and access to land. (26) Typically traced in America to the influence of pioneering legal realist Wesley Hohfield, the metaphor of a "bundle of rights" has been used now globally to engage with the complex overlay of claims to land that, while generally situated with a primary property owner, are almost always beset by claims from other citizens and various collective entities. (27) The popularity of the "bundle" metaphor has received criticism not from those seeking to re-center communal claims (at least in the United States) but rather those who want to re-center the power of individual exclusion. (28) Other analytic frames for property are ever-emerging, (29) and no conceptual frame has, as of yet, satisfied the particular individual/communal tensions which Mattei noted are of recent vintage in human land holding. (30)

    As such, scholarly attempts to clarify and refine the analytic frame of individual property rights ownership has not dimmed the more commonsensical and practical reality that private land is subject to what Peter Salsich has called a "public mortgage." (31) Beyond concerns with aggregate efficiency, the need to place limitations on private land use has inspired historical debates on the exact relationship of land ownership to democratic norms. (32) A general valuation of economic democracy argues that the same norms of democratic participation and process should govern private transactions as much as they do public ones, but even this claim is relatively unspecific given how broadly democratic norms can be interpreted. (33) Does this mean electoral systems of governance? Republican norms of indirect representation? Is the normative aim general social equality, or more substantive norms of economic interdependence? As diverse as these answers can be, so too have been the experiments in land which continue to test the line between collective and individual ownership at various strata of property law.

    However, the history of these experiments has been one of few sustained alternatives. (34) As will be discussed herein, successful innovations in partially collective forms of ownership have in some cases become mainstreamed, with the least intensive but most...

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