By Theodore Steinberg. Berkeley: University of California Press, 1995. Pp. ix, 212. $24.00.
The common law, of which property law comprises a substantial branch, claims as its chief advantage the ability to adapt to changing circumstances. But the rules of property law that courts develop, argues Theodore Steinberg, are inherently incapable of "master[ing] nature in all its complexity, 100 percent" (p. 7). Converting everything into property does "not just confuse[,] but impoverish[es] our relationship with the natural world" (p. 10). Steinberg recounts five entertaining parables that question the meaning and extent of the institution of property.
Steinberg approaches the problem of universal commodification from an angle foreign to mainstream legal scholarship. Rather than couching his argument in moral(1) or efficiency(2) justifications, Steinberg attempts to prove his point on "silly" grounds. He contends that it is fatuous to determine who owns shoreline on the basis of its adjoining body of water (pp. 52-81) or on the basis of how a river changes course (pp. 21-51). Therefore, Americans should abandon attempts to force natural resources into their system of property law. Although Steinberg succeeds in his narrow mission of exposing the limits of property law, disappointingly, his argument-by-parable fails to propose any alternatives that would ameliorate the shortcomings he reveals. Steinberg commences with the claim that "[t]wentieth-century America is a society obsessed with mastering nature technologically, a society bent on redesigning the natural world, no matter what the cost" (p. 6). As a prefatory illustration of nature's refusal to comport with property law, he recounts Mark Twain's tale of a quiet title action against a downhill plot of land onto which a mudslide had caused an uphill tract to slide (pp. 3-4).(3) Steinberg then chronicles a series of property disputes, beginning with the concrete (determinations of land boundaries altered by rivers, pp. 23-5(4)) and concluding with the exceedingly ethereal (the transferable "air rights" created by New York City's zoning scheme, pp. 135-65(5)). Property law distinguishes between "common" and "exclusive use" property.(6) Disputes over land boundaries, shoreline (pp. 52-81(7)), and air rights fall into the latter category, while conflicts over underground water rights (pp. 82-105(8)) and weather rights (pp. 106-349) fall into the former. Through each of these case studies, Steinberg reiterates his refrain that, although "[p]roperty law transforms nature into ownable things[,] not everything on earth is equally ownable" (p. 18).
Steinberg submits that the problem of owning nature derives from the twin forces of a "culture so dedicated to control, so obsessed with possession" (p. 23) and the development of technology that allows Americans to "control" further and thereby commodity nature (pp. 107-09). He makes his point about a culture of property most forcefully through his portrayal of the conflicts that develop when two cultures disagree over the concept of "owning" a particular natural resource. To wit, when the United States directed the Omaha not to occupy land the tribe thought available for its use, the tribe objected, reasoning that there can and should be no ownership of land.(10) Similarly, a group of farmers who sought to enjoin orcharders from altering the weather to their advantage wished not to control the weather but rather merely to allow nature to take its course.(11) Thus, suggests Steinberg, imposing a property regime upon a property-chary culture can destroy that culture.
Technology that facilitates the capture of natural resources likewise fuels the growth of property rules.(12) The use (and potential overuse) of these technologies to claim resources exclusively, posits Steinberg, ultimately leads to the destruction of the natural resources. For example, improved pumps enabled Arizona farmers to possess and exploit greater quantities of water, which not only depleted the resource but also increased ground subsidence (pp. 89-91). Likewise, only upon the invention of skyscrapers and complex cantilevers did air rights truly matter (p. 140).(13) Technology enables a culture "obsessed with possession" (p. 23) to expand greatly the set of ownable things. As ownership expands, the more preposterous that ownership appears, and the more inevitable the destruction of natural resources becomes.
Indisputably, the market--and its attendant rhetoric--pervades American society.(14) "Steinberg's failure, however, to advance an alternative cultural system that satisfies his objections leaves the reader muttering "yeah, but so what?" Indeed, he never acknowledges that, although property has the shortcomings he identifies, it nonetheless likely reigns supreme in the world of second best." Presenting only objections, Steinberg leaves no clew indicating a more desirable path to be followed by a culture obsessed with property. His analysis of technology's role in the development of property is similarly wanting. While technology indubitably has fueled the increased pervasiveness of property,(16) Steinberg fails to point in any direction with his evidence. Is he a neo-luddite, wishing that Americans abandon...