Property and Persuasion: Essays on the History, Theory, and Rhetoric of Ownership.

• Author: Fisher, III, William W.

For a decade, Carol Rose(1) has been writing provocative essays about the history, doctrine, and theory of private property. Irreverent, unpredictable, learned, and concise, these articles have been a pleasure to read. The same traits make them wonderful teaching tools. It is thus not surprising that several excerpts from Rose's essays have found their way into first-year Property casebooks.(2) Many Property teachers, myself included, go further, assigning entire articles.(3) Each year, some of the most energetic classroom discussions spring from those assignments.

Property and Persuasion contains eight of those articles plus a previously unpublished essay, Seeing Property (pp. 267-304). For two reasons, the book is better than a set of copies of the original essays. First, although Rose has sensibly left unchanged the arguments of the individual articles, she has updated many of the footnotes and pared others. The resulting essays are both more current and more trim. Second, she has included many substantive cross-references, suggesting how the theses of the articles relate to one another. These links make it possible to see how the various parts of Rose's complex conception of property hang together -- or, as will be suggested below, in some instances do not hang together.

Among the characteristics that make the essays so refreshing is their unusual narrative form. These are not typical law review articles, marching predictably through premises, analyses, and doctrinal applications. They are quirky and surprising. Sometimes, like Faulkner novels, they go over the same ground two or three times, examining a doctrine or problem from various points of view. For example, in The Comedy of the Commons (p. 105), perhaps the best essay in the book, she studies the development of American and English "public property" doctrines from many angles, and each perspective is sufficiently different that the reader does not lose patience.

Sometimes the essays change course suddenly. For example, the bulk of Possession as the Origin of Property (p. 11) consists of an effort to identify the economic logic underlying the "first-occupancy" principle -- the notion that the first person to reduce an unowned object or animal to "firm possession" owns it. But two pages from the end, the tone changes abruptly from panglossian to critical. The first-occupancy principle may have served effectively to maximize the material welfare of the Europeans who conquered the Western Hemisphere, Rose insists, but its central presupposition (that human beings are outsiders to nature) made no sense to -- and indeed helped justify the forcible ouster of -- the Native American population.(4) The shift is jarring, and that, presumably, was her intent.

Finally, like Dorothy, Rose frequently strays from the road of her own argument. These detours, instead of distracting, contain many of the most memorable parts of the book. For example, the primary topic of the final essay, Seeing Property (p. 267), is whether it is good or bad that ownership is so closely related to vision -- that property as a socioeconomic institution depends heavily on visual markers and codes (fences, maps, photographs, and so on) and that property law employs many visual metaphors ("body politic," "bird on a wagon,"(5) and so on). Rose's main, typically revisionist claim is that the sense of sight -- in general and in connection with property -- is epistemologically more constructive than its critics contend; that it is just as "interactive" and social as the senses of hearing or smell; that it sensitizes us to the ephemeral character of all rights as much as to their solidity; and that it is fully compatible with the telling of stories and thus is not vulnerable to the charge that it "eradicates . . . the dimension of time, and with time, the importance of experience and even consciousness" (p. 270). But in the midst of this abstruse -- and not wholly convincing -- argument, Rose pauses to explore a more mundane -- and illuminating -- topic. Although visual metaphors are not inherently misleading, she argues, some of the metaphors we have developed to describe property rights are. Specifically, the comparison of a fee simple to a "bundle of sticks," although useful for some purposes, unfortunately inclines us to think of all of the entitlements that make up a property right as easily separable and "all more or less alike" (p. 280). This tendency, she plausibly contends, impedes our ability to deal sensibly with particular doctrinal problems -- such as (she might have suggested) the issue of when a governmental regulation of land use goes so far as to constitute a "taking."(6) A metaphor more sensitive to the heterogeneity and interdependence of the rights constitutive of ownership, she playfully but shrewdly proposes, would be "[t]oys in a toy chest" (p. 280). Similarly suggestive tangents abound in the other essays.(7)

In view of Rose's evident familiarity with contemporary narrative theory, it is hard to believe that these stylistic innovations are inadvertent. An important substantive aspiration of her book, she frequently tells us, is to destabilize conventional understandings of ownership. The novel organization of the argument is equally effective in challenging conventional expectations concerning the proper form of legal scholarship. In view of her equally apparent familiarity with contemporary feminist theory,(8) it is also hard not to associate the stylistic innovations with Rose's gender. In many other fields -- literary theory and anthropology come to mind most quickly -- feminist theorists during the past decade have insisted upon the interdependence of misogynist substantive views and patriarchal narrative forms.(9) Dislodging one requires dislodging the other. Although Rose never expressly aligns herself with such projects, she at least is proceeding along a parallel course.

The novelty of the form of the book should not be exaggerated, however. One never has any doubt when reading through these essays that they were produced by a single author. Rose's voice appears to have changed little over the decade in which they were written. More importantly, the same concerns recur in most of the essays. Three themes are particularly prominent and merit response: an effort to refine the conventional utilitarian theory of property and the associated progressive history or property doctrine; the excavation and defense of a competing, republican theory of property; and a reassessment of the venerable question of the relationship between rules and standards.

1. CLASSICISM AND ITS DISCONTENTS

   Central to many of Rose's essays is an argument she describes as the "classical theory of property." A blend of utilitarian political theory, neoclassical economics, and materialist history, this approach contends that property rights originate in the efforts of the members of a society to maximize their aggregate welfare. The assignment of scarce resources to individual owners, so the argument goes, has four related beneficial effects. First, it provides the persons to whom the rights are assigned incentives to engage in socially beneficial activities. Second, it avoids "tragedies of the commons" -- the tendency of persons who have access to unowned or communally owned resources to overuse them. Third, it reduces "rent dissipation" -- the tendency of people to spend their time grabbing resources in the hands of others. Fourth, it facilitates commerce -- mutually beneficial exchanges of resources and services.

   Social recognition of these advantages, the argument continues, typically occurs in three stages. In stage one, there is more than enough of a resource to satisfy all members of the society. Consequently everyone is permitted to appropriate as much as she wishes and no effort is made to manage the resource. Stage two represents an intermediate or transitional phase. As the free-for-all of the initial period threatens to exhaust the resource, "a group or tribe may jointly take over the resource -- such as a hunting area or a set of common fields -- and reserve access to its own members, perhaps allocating in-group access according to a set of informal customary arrangements" (p. 164). Increasing scarcity eventually renders this arrangement inadequate, whereupon the members of the society typically shift in stage three to a full-blown property regime, in which discrete pieces of the resource are assigned to individual owners. This final phase is not static, however; legal rules are constantly adjusted to provide the individual owners socially optimal incentives to use and conserve the resources that have been entrusted to them.

   Rose's posture toward the classical theory is complex. Sometimes she relies, seemingly uncritically, on the standard story to make sense of some aspect of property law. In the first essay, for instance, she observes that several doctrines in Anglo-American law place a premium on "clear acts of possession" -- manifestations of dominion sufficiently obvious to be noticed by members of the pertinent community. The most important of these doctrines doctrine is the first-occupancy principle, mentioned above, which assigns ownership of certain objects to the persons who first visibly take hold of them. Another is adverse possession, under which a trespasser can acquire title to land only if his long-continued wrongful occupancy is, among other things, sufficiently "notorious." the best explanation of such rules, Rose contends, is that, by quickly and reliably assigning resources to determinate people, they minimize rent-seeking (p. 16). To be sure, they sometimes result in the allocation of resources to persons not in the best position to put them to productive use, but as long as the entitlements are clearcut, such misallocations can be easily corrected through voluntary bargains. This explanation, which emphasizes the economic advantages of consensus...