DO PROPERTY OWNERS OWE DUTIES TO OTHERS? IT'S A SIMPLE MATTER OF TORT.

• Author: Underkuffler, Laura S.
• Position: Tribute to Professor Peter M. Gerhart

INTRODUCTION I. THE RESTLESS SEARCH II. THE GERHART BOOK CONCLUSION INTRODUCTION

I am honored to write this essay to celebrate the work of Professor Peter Gerhart, who was a tremendously creative thinker in the legal academy and also a valued friend.

There are many kinds of people in the teaching ranks. There are those who restlessly seek new ideas and remain undaunted if others do not immediately accept them. There are those who refuse to unmoor their work from their personal moral values, even when moral skepticism is the most popular conviction of those who are then writing in the field. There are those who never shed awareness of their own limitations because humanness and personal self-doubt match their critical habits of the mind. All of these characterized Professor Gerhart.

In choosing a piece of his work for this essay, I was inexorably drawn to one of his books, which is--to my mind--one of the crowning achievements of his academic life. Over the last decade, he sought to examine the role of moral theory in the foundational areas of private law: torts, property, and contracts. (1) In these remarks, I will focus on the second of these works: Property Law and Social Morality, which was published in 2014.

Although I have read many excellent works in my own field of property theory, and have hazarded contributions to the field myself, this book stands apart. Once I read it, I could not forget it. It is one of the most simple, yet brilliant answers to this question: do property owners have obligations to others? And, if so, on what basis is this obligation imposed?

1. THE RESTLESS SEARCH

   The legal institution of private property, as known in the Western world, is rooted in a profound conundrum. The idea of individual property rights is protective in its very essence: it recognizes the profound need of human beings to control physical objects, certain intangible things, and other resources that are essential to the living of life. (2) At the same time, this bedrock idea creates a difficult problem. Individual property rights in external, physical, finite, non-sharable resources is a zero-sum game. If individual "A" is granted control--"property rights"--over particular land, chattels, or other resources, individual "B" necessarily is not. Does "A" acquire--along with her property holdings--any obligation to reckon with the impact of her property ownership on other individuals? Is there what I would call a "well-nigh incontestable" ground that compels that reckoning by "A" or other property owners?

   This is, of course, at the core of all societal efforts to alter, diminish, or destroy previously conferred property rights claimed by individuals. Whether it is environmental controls, global-warming cutbacks, endangered-species laws, green-space-preservation laws, historic-preservation laws, affordable-housing mandates, or baldly redistributive efforts (through taxation or government confiscation), any change in previously earned or conferred property entitlements is in deep theoretical conflict with the protections for the individual that the private property system supposedly grants. We can come up with all kinds of rationalizations about how property owners actually come out better after these laws and their purported losses, and in many cases that may be true. For instance, it does property owners little good if their prerogatives are preserved but the planet is destroyed by global warming catastrophes. We can also point out that as members of society, property owners necessarily owe obligations to their fellow citizens. (3) However, in the United States, where ideas about the sanctity and primacy of private property rights are so strong--indeed, in the view of many, constitutionally (4) or morally guaranteed--the gaping chasm between property's protective promise and the realities of social intervention and deprivation creates a deep unease.

   Knowledge of this situation has led to an avalanche of writing in the past thirty years that has attempted to identify what I would call a well-nigh incontestable source for imposing other-regarding obligations on private property owners. One effort, with which I have been strongly identified, questions whether private property guarantees as implemented in American law are in fact as "one-sided" (individually protective) as is often portrayed. (5) This effort spawned what is now known as the "progressive property movement." (6) In parallel fashion, other scholars have highlighted historical understandings of property rights--such as eighteenth-century understandings--to demonstrate that the idea of property as protection of the individual's autonomous sphere is in fact a recent creation. (7) As Professor Robert Gordon wrote, despite

   a lush flowering of absolute dominion [property] talk ..., [t]he real building-blocks of basic eighteenth-century social and economic institutions [envisioned] ... property rights held and managed collectively ...; property surrounded by restriction on use and alienation; [and] property qualified and regulated for communal or state purposes.... (8) Another approach has been to anchor other-regarding obligations of property owners in constitutional text or the nature of democratic government. These scholars have argued that the individual rights conferred by the American Constitution, and the general principles of democratic government, assume that individual citizens have the ability to live, to exercise conferred rights, and to effectively participate in government; and that all of those in turn require that minimal survival needs for food, medical care, and shelter are met. As Professor Frank Michelman famously wrote, "[s]atisfaction of basic welfare interests [is] ... a crucial ingredient of any serious attempt" to guarantee individual constitutional rights and the right of political participation. (9) Because the preservation of private property can stand in the way of such welfare transfers, it is imperative--for this reason--that other-regarding obligations on property owners be imposed. (10)

   Yet another approach has been to choose a particular value or objective, which is plausibly but not generally associated with the idea of property as protection, and to argue that this value--when examined--requires, through the idea of reciprocity, that property owners be concerned about the ownership, or lack of ownership, of others. For instance, human flourishing (11) or the development of particular human capacities (12) have been chosen as the most fundamental reasons for the creation of property systems, and the (consequent) touchstones for examining their operation. Once we have accepted the deep roles of such values in the operation of property systems, it follows from the idea of reciprocity that those values and their fruits must be afforded to all. For instance, if we believe that human flourishing or the development of critical human capabilities are of importance for us, "to avoid contradicting ourselves," (13) we must recognize their importance for others. And if we believe that property ownership is critical to achievement of those objectives, we must agree that universal property ownership of some kind--an "other-regarding" obligation--is a part of our constructed property system.

   All of these theories are powerful. However, they are all subject to a powerful critique. All of these theories either seek to undermine the...