Property and relative status.

• Author: Davidson, Nestor M.

Property does many things--it incentivizes productive activity, facilitates exchange, forms an integral part of individual identity, and shapes communities. But property does something equally fundamental: it communicates. And perhaps the most ubiquitous and important messages that property communicates have to do with relative status, with the material world defining and reinforcing a variety of economic, social, and cultural hierarchies.

This status-signaling function of property--with property serving as an important locus for symbolic meaning through which people compare themselves to others--complicates premises underlying central discourses in contemporary property theory. In particular, status signaling can skew property's incentive and allocative benefits, leading people to over-invest in status-enhancing property and undermining welfare gains associated with trades around property. Similarly, status signaling risks warping the link between property and personhood, investing that connection with a potentially dysfunctional regard for the property of others. And status signaling is magnified by and can undermine property's communitarian links.

From a doctrinal perspective, ground-level property law intersects with the problem of relative status across an array of areas of intellectual property, real property, and personal property. At times law gives formal sanction to property's hierarchical signaling and at times it tempers this tendency, breaking up fixed hierarchies. Sensitivity to these dynamics holds important lessons for both the ongoing development of property law and for the continuing interdisciplinary exploration of this core aspect of property.

TABLE OF CONTENTS INTRODUCTION: THE FIRST EFFECTS OF PROPERTY I. FUNCTIONAL DISCOURSES IN CONTEMPORARY PROPERTY THEORY A. Property as a Response to Scarcity: Of Incentives and Allocation B. Property and the Extended Self: Autonomy and Personhood in the Material World. C. Property, Community, and Social Relations II. THEORIES OF PROPERTY AND STATUS SIGNALING A. Comparative Status in the Intellectual History of Property B. Contemporary Perspectives on Status Signaling, Hierarchy, and Property 1. Property as Communication 2. Development of Self by Reference to Others 3. Positional Goods and the Economics of Status Races C. Synthesis and Reflections 1. The Boundaries of Status Signaling Through Property 2. Notes of Caution and Some Responses III. STATUS COMPARISON AS CRITIQUE IN PROPERTY THEORY A. Over-Incentivizing, Misallocation, and Status Races B. A Fun-House Mirror for the Looking-Glass Self: Warping Identity and Personhood C. Reinforcing Hierarchy in Property's Communitarian Web D. Status Signaling as a Theoretical Bridge IV. LEVELING AS A NORMATIVE FRAME FOR PROPERTY DOCTRINE? A. Property Law's Status-Reinforcing Tendencies 1. Intellectual Property: Protecting the Value of Status Symbolism 2. Land Use and Real Property: The Place and Physical Form of Status 3. Property-Related Debt as Fuel for Status Races B. Status Mobility in Property Law: Ambiguities and Anxieties 1. Rethinking Alienability 2. ... And Inalienability 3. Susette Kelo's Anxiety: Eminent Domain and the Loss of Relative Status 4. Status Ambiguity in Other Doctrinal Contexts C. Tempering Influences: Taxation, Information, and Property Law as Comparative Regulatory Strategies CONCLUSION Insatiable ambition, the thirst of raising their respective fortunes, not so much from real want as from the desire to surpass others, inspired all men with a vile propensity to injure one another, and with a secret jealousy, which is the more dangerous, as it puts on the mask of benevolence, to carry its point with greater security. In a word, there arose rivalry and competition on the one hand, and conflicting interests on the other, together with a secret desire on both of profiting at the expense of others. All these evils were the first effects of property, and the inseparable attendants of growing inequality.

--Jean-Jacques Rousseau (1)

INTRODUCTION: THE FIRST EFFECTS OF PROPERTY

The iPod Nano comes in several colors, which for a time included dull industrial silver, as well as bright blue, green, pink, jet black, and red. Savvy iPod owners understood at a glance that these colors corresponded to amounts of memory--the black Nano, for example, having twice or four times as much as the silver--and, not surprisingly, to how much each model cost.

Suburban communities have long regulated land use to privilege single-family housing, typically with large minimum lot sizes, generous setbacks, and extensive floor-area requirements. Although this tends to generate an affluent homogeneity decried by planners and scholars, people are increasingly willing to take on unsustainable levels of debt and commute distances that would once have seemed unthinkable to be able to say that they live in such communities.

What do iPod colors and homes in far-flung, exclusionary suburbs have in common? Each is an example of the ubiquitous role that property plays in signaling relative status. (2) Despite a wonderful flowering of theoretical and empirical property literature in recent years, legal scholars have largely ignored this critical aspect of property. This Article accordingly brings to the fore status signaling through property, exploring its implications for contemporary property theory, and explaining the underappreciated role that the design and operation of property law plays in both reinforcing and undermining property's hierarchical signaling tendencies.

To understand these dynamics, begin with the proposition that property operates on several levels at once. On one level, property serves basic functions that are so familiar that we rarely pause to take note. Money enables exchange and investment: food provides sustenance: books entertain and inform: buildings shelter a myriad of significant and trivial aspects of life: and so forth. But all of these things--indeed all property, tangible and intangible--work in other ways at the same time. Property forms an underlying and important aspect of the self, helping to shape personality and individual autonomy. On yet another level, property serves as the connective tissue for communities, defining mutual obligations and setting the boundaries of social relations. All of this is well recognized and the bulk of our contemporary thinking about property falls roughly along these lines. (3)

Property, however, does something else equally fundamental: it communicates. (4) In particularly potent ways, what we possess broadcasts information about who we are and, most importantly, who we are in relation to one another. (5) Most people are quite adept at sending and deciphering these signals, which can vary across cultures and contexts, often shifting rapidly in their significance and particular meaning. Thus, beyond practicality, personhood, and community, property plays an overarching role in shaping and reinforcing economic, social, and cultural hierarchies. Jet black iPods and exurban McMansions might be great for playing music and keeping the rain out at night. They might also help us remember songs that are particularly meaningful in our family or play out the rituals of our neighborhood's daily life. But a large part of why these things exist in the particular way they do--and the value we place on them---comes from the status they are commonly understood to confer. (6)

This status signaling relates to but is ultimately distinct from the underlying material differences property generates.: An unavoidable consequence of any system of private property is that some individuals and groups will inevitably have more property than others. Much can be said about the particular patterns of inequality that flow from the structure of property rights at any given time and, conversely, the limits of redistribution consistent with any basic conception of private property. But property relates to hierarchy in a separate sense in the way that material possessions are not only unequally distributed, but also used to mark and reinforce status boundaries. A house in one neighborhood that is "objectively" quite similar to a house in another neighborhood in terms of square footage, distance to work, and other amenities may nonetheless carry entirely different social and cultural messages as a marker of status. Such signaling can be accurate or inaccurate, conscious or unconscious, with complex cultural, gender, and other variations--but the signal is an overlay onto actual material differences, and merits examination as a distinct phenomenon.

The concept of property as a signal for social hierarchy has an intellectual history stretching back to some of our foundational thinking on property and society. (8) And status signaling through property continues to generate significant scholarly interest, sparking a rich contemporary literature in fields as diverse as psychology, sociology, anthropology, and economics, as well as in specialized areas such as consumer and cultural studies. (9) This interdisciplinary scholarship, although grounded in somewhat incongruent methodological commitments and theoretical assumptions, can be read at the appropriate level of abstraction to yield several related insights. First, people communicate, in part, through consensually understood symbols that gain their meaning through the way people interact around those symbols. In this communication, property serves as an important locus for symbolic meaning. In a related vein, people tend to compare themselves to others as a way to understand themselves. Here again, property serves as a particularly powerful source of information for that comparison. And this comparative communication has clear and often negative consequences for people's incentives and behavior around property. (10)

These insights form a core framework for understanding status signaling through property that has direct lessons for...