Property's Ends: The Publicness of Private Law Values

• Author: Gregory S. Alexander
• Position: A. Robert Noll Professor of Law, Cornell University
• Pages: 1257-1296

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Property’s Ends: The Publicness of Private

Law Values

Gregory S. Alexander

ABSTRACT: Property theorists commonly suppose that property has as its

ends certain private values, such as individual autonomy and personal

security. This Essay contends that property’s real end is human flourishing,

that is, living a life that is as fulfilling as possible. Human flourishing,

although property’s ultimate end, is neither monistic nor simple. Rather, it

is inclusive and comprises multiple values. Those values, the content of

human flourishing, derives, at least in part, from an understanding of the

sorts of beings we are―social and political. A consequence of this conception

of the human condition is that the values that constitute human

flourishing—property’s ends—are public as well as private. Further, the

public and private values that serve as property’s ends are mutually

dependent for their realization. Hence, any account of property that assigns

it solely to the private sphere, categorically removed from public values, is

incoherent.

I

NTRODUCTION .................................................................................... 1259

I. HUMAN FLOURISHING: A PLURALIST CONCEPTION ............................. 1262

II. PROPERTY’S ENDS ................................................................................ 1264

A. AUTONOMY ............................................................................ 1264

B. PERSONAL SECURITY/PRIVACY ................................................... 1265

C. SELF-DETERMINATION .............................................................. 1267

D. SELF-EXPRESSION ..................................................................... 1267

E. RESPONSIBILITY ............................................................................. 1269

 A. Robert Noll Professor of Law, Cornell University. An early version of this paper was

prepared for a conference on “The Interface of Public an d Private Law Concepts in Property,”

sponsored by Kings College, London, on June 14, 2012. I presented revised versions at the

Progressive Property Group Conference, at Harvard Law School, in May 2012, and at faculty

workshops at Georgetown, Notre Dame, and Cornell law schools. I am grateful to the organizers

of the conferences and workshops for inviting me. I am also grateful to Josh Chafetz, Hanoch

Dagan, Mark McKenna, Tom McSweeney, Eduardo Peñalver, John Pojanowski, Emily Sherwin,

Steve Shiffrin, Laura Underkuffler, and other participants at the conferences and w orkshops for

very helpful comments and suggestions.

1258 IOWA LAW REVIEW [Vol. 99:1257

III. THE PUBLIC VALUES OF HUMAN FLOURISHING ................................... 1270

A. EQUALITY ............................................................................... 1271

B. INCLUSIVENESS ........................................................................ 1271

C. COMMUNITY ........................................................................... 1273

D. PARTICIPATION ....................................................................... 1275

E. SELF-CONSTITUTION ....................................................................... 1276

IV. WHY, WHICH, AND WHEN PUBLIC VALUES ARE AMONG PROPERTY’S

ENDS .................................................................................................... 1277

V. PUBLIC AND PRIVATE TOGETHER: TWO EXAMPLES .............................. 1284

A. THE RIGHT TO EXCLUDE: AUTONOMY AND SELF-CONSTITUTION ...... 1284

B. THE ENFORCEABILITY OF HOMEOWNER ASSOCIATION RULES ............ 1291

CONCLUSION ....................................................................................... 1295

2014] PROPERTY’S ENDS 1259

INTRODUCTION

Donald Lamp was outraged. Every morning since 9/11, the eighty-nine

year old World War II veteran had hung an American flag from the balcony

of his Omaha, Nebraska apartment. But in May 2004, the management

board of the retirement community in which he lives ordered him to remove

his flag, citing a violation of one of the covenants in the master plan that

governs the development. Lamp refused.

These sorts of disputes are not uncommon in homeowner associations.

What made Donald Lamp’s case noteworthy was the fact that he was the

father-in-law of U.S. Supreme Court Justice Clarence Thomas, a fact

apparently of little moment to the association’s general manager. “We have

a lot of important people here,” she said. However true that may be, Lamp’s

case got national attention, much of it unfavorable for the homeowner

association. A typical reaction was this posting on a blog site: “Donald Lamp

fought for our right and his right to display our nation’s flag anywhere and

anytime.”1

The question, of course, is, does Mr. Lamp have such a right? On one

view, a view informed by the private law values of property law, the answer,

quite clearly, is no. The covenant restricting the display of flags within the

development was included in Mr. Lamp’s deed. He had legal notice, either

actual or record notice, of it at the time he entered into the purchase of his

unit, and he agreed to be bound to it. The matter is strictly one of consent.

So long as he had notice of the restrictive covenant at the time he entered

into the agreement with the association, he is bound by it.2

Donald Lamp and his supporters did not see the matter this way. To

them, some values cannot be contracted away. These are fundamental

values—public values—and among them is the right to display the American

flag. So the argument goes.

The dispute between Mr. Lamp and his homeowner association is not

aberrational. There have been many such disputes, some litigated, some not,

over conduct ranging from speech to religion to satellite antennas. Although

not all of these disputes involve values that could plausibly be characterized

as fundamental (the right to hang a clothesline outdoors?), many of them

do. The question is whether such values have any traction in the realm of

private ordering.

I want to approach this question in a somewhat unusual way. In the

United States, the usual approach to the question is through public law,

notably the American constitutional doctrine of state action. Under this

doctrine, constitutional values do not apply unless there has been state

1. Yoe, Comment to Nebraska Retiree Fights to Hang American Flag, FOX NEWS (May 28,

2004, 5:00 PM), http://www.freerepublic.com/focus/f-news/1144102/posts.

2. See Richard A. Epstein, Notice and Freedom of Contract in the Law of Servitudes, 55 S. CAL.

L. REV. 1353, 1356–57 (1982).