Why Less Property Is More: Inclusion, Dispossession, & Subjective Well-Being

Author:David Fagundes
Position:Professor of Law and Assistant Dean for Faculty Development, University of Houston Law Center
Pages:1361-1418
SUMMARY

The twin notions of exclusion and possession dominate our cultural and legal conceptions of property. This Article uses the lens of hedonics—the emergent science of happiness—to make a case for the less appreciated notions of inclusion and dispossession. Evidence from this new field shows that owners maximize their welfare, not when they amass land and chattels and keep others away from them, but ... (see full summary)

 
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1361
Why Less Property Is More:
Inclusion, Dispossession, & Subjective
Well-Being
Dave Fagundes*
ABSTRACT: The twin notions of exclusion and possession dominate our
cultural and legal conceptions of property. This Article uses the lens of
hedonics—the emergent science of happiness—to make a case for the less
appreciated notions of inclusion and dispossession. Evidence from this new
field shows that owners maximize their welfare, not when they amass land
and chattels and keep others away from them, but when they pursue the polar-
opposite strategies of inclusion and dispossession, such as sharing their
property, donating it to charity, or giving it away. This Article begins its
defense of inclusion and dispossession by providing background about the
idea of happiness and law, an increasingly important conceptual framework
for welfarist analysis of law and policy. It then reviews the hedonics evidence
about property, which reveals that despite the hegemony of exclusion and
possession, what increases owners’ subjective well-being is using their property
to create social ties, to give it to a meaningful cause, or just to get rid of it.
The Article then considers specific strategies of inclusion and dispossession.
The Article reveals unappreciated ways that inclusion and dispossession
enhance owners’ subjective well-being, and then suggests particular forms of
choice architecture that have the potential to optimize the overall social welfare
produced by each of them. Finally, this Article concludes by considering the
implications for property theory of the novel notions of inclusion and
dispossession, emphasizing that this claim works to enrich, not undermine,
the institution of private ownership.
*
Professor of Law and Assistant Dean for Faculty Development, University of Houston
Law Center. Thanks to Jennifer Bird-Pollan, Zack Bray, Lee Ann Fennell, Brian Frye, Thomas
Mitchell, James Nelson, Michael Pollack, Mark Roark, Jessica L. Roberts, Dru Stevenson, Jessica
Dixon Weaver, and Kellen Zale, as well as participants in the 2016 Texas Legal Scholars
Conference and the 2017 Texas A&M Property Schmooze, as well as faculty workshops at the
South Texas College of Law and the University of Kentucky College of Law for thoughtful
suggestions about this project.
1362 IOWA LAW REVIEW [Vol. 103:1361
I. INTRODUCTION: INCLUSION & DISPOSSESSION IN
PROPERTY LAW ............................................................................ 1362
II. THE HEDONIC UPSIDES OF INCLUSION AND DISPOSSESSION ...... 1368
A. HAPPINESS & THE LAW: A BRIEF OVERVIEW ........................... 1368
B. INCLUSION, DISPOSSESSION, AND HAPPINESS ........................... 1372
C. TOWARD INCLUSION AND DISPOSSESSION ................................ 1379
III. HAPPINESS, INCLUSION, AND THE SHARING ECONOMY ............... 1380
A. PROPERTY, SHARING, AND REGULATION ................................. 1380
B. SHARING AS HAPPINESS: FOUR EXAMPLES ............................... 1382
1. True Sharing ................................................................ 1383
2. Disintermediation ....................................................... 1385
3. Community .................................................................. 1386
4. Access over Ownership ............................................... 1389
C. TOWARD HAPPIER SHARING ................................................... 1390
IV. HAPPINESS AND CHARITABLE GIVING ......................................... 1394
A. THE HEDONIC CASE AGAINST THE CHARITY DEDUCTION ........ 1395
B. CHOICE ARCHITECTURE FOR HAPPIER DONATION ................... 1398
1. Pure Libertarian Approaches ..................................... 1398
2. Libertarian-Paternalist Approaches ........................... 1399
V. HAPPINESS, LAW, AND THE NEW MINIMALISM ............................ 1403
A. THE JOY OF NOTHING: MINIMALISM & HAPPINESS ................. 1403
B. MINIMIZING PROPERTY THROUGH LAW ................................. 1408
1. Libertarian Non-Intervention .................................... 1408
2. Nudges ......................................................................... 1409
3. Legal Status .................................................................. 1410
4. Targeted Abandonment ............................................. 1413
VI. CONCLUSION: IN [QUALIFIED] DEFENSE OF EXCLUSION
& POSSESSION ............................................................................. 1416
I. INTRODUCTION: INCLUSION & DISPOSSESSION IN PROPERTY LAW
The twin notions of possession and exclusion lie at the center of our
cultural and legal understanding of property. Consider the American
obsession with possession. We recently elected a President with no experience
holding a public office to a large extent based on widespread admiration for
2018] WHY LESS PROPERTY IS MORE 1363
his great wealth.1 Television shows from Antiques Roadshow to Flipping Out
to Top Gear also fetishize having both real property and chattels.2 In fact,
many of America’s leading industries are devoted to protecting and
enhancing possession: the financial industry, which seeks to grow extant
wealth into even more of it; the insurance industry, which seeks to protect
people against the loss of their property; and even assorted businesses that
allow people to showcase and warehouse the things they accumulate
throughout their lives.3
Possession is also central to our legal understanding of property. Leading
property scholars from Carol Rose to Richard Epstein consider the notion of
possession central to and inextricable from the idea of property itself.4 The
doctrines of first possession and adverse possession, while rarely invoked in
practical terms, occupy a disproportionate amount of space in the first-year
property curriculum and in law reviews.5 And while the hoary cliché that
“possession is nine tenths of the law” is not quite right, it does reflect a notion
that actual possession of property gives a purported owner a strong
presumptive case to legal title.6 In light of all this, it is unsurprising that Jill
Fraley recently observed that legal “theorists . . . obsess over possession.”7
If any notion can compete with possession’s stranglehold on how we
think about property, it is exclusion. The intuition that we should be able to
1. Michael McGrath, Why Voters Love Donald Trump’s Wealth—but Despised Mitt Romney’s,
GUARDIAN (Mar. 15, 2016, 4:38 PM), https://www.theguardian.com/us-news/2016/mar/15/
donald-trump-wealth-money-mitt-romney.
2. Indeed, the national preoccupation with owning stuff has even resulted in its own
pathology—hoarding—where people acquire and keep things compulsively in much the same
way that alcoholics guzzle booze (which disorder has also become a point of public fascination so
great that it too has led to a TV show devoted to it, Hoarders).
3. Examples include the Container Store, which sells only things to store other things, as well as
the vast storage industry, which rents out space for the many people who can no longer fit all their stuff
in their home or garage. For a fascinating account of how Americans continue to run out of space for
their things even as houses grow ever larger, see JOHN DE GRAAF ET AL., AFFLUENZA: HOW OVER-
CONSUMPTION IS KILLING USAND HOW TO FIGHT BACK 28–33 (3d ed. 2014).
4. Compare Richard A. Epstein, Possession as the Root of Title, 13 GA. L. REV. 1221, 1221 (1979),
with Carol M. Rose, Possession as the Origin of Property, 52 U. CHI. L. REV. 73, 74–75 (1985).
5. For example, the leading 1L property text devotes nearly 50 pages to adverse possession
alone, despite not featuring a major case decided after the 1970s. See JESSE DUKEMINIER ET AL.,
PROPERTY 116–64 (7th ed. 2010).
6. The Roman doctrine of uti possidetis entitled possessors in property disputes to occupy
the property unless and until it was determined not to belong to them. John Duncan, Uti
Possidetis: Is Possession Really Nine-Tenths of the Law? The Acquisition of Territory by the United St ates:
Why, How, and Should We?, 38 MCGEORGE L. REV. 513, 513 (2007). In American folklore, a judge
is said to have invoked this notion in a dispute between the feuding Hatfields and McCoys,
awarding ownership of title in a pig to its possessor, Floyd Hatfield, since no credible evid ence
could show that the McCoys lacked title.
7. Jill Fraley, The Meaning of Dispossession, 50 IND. L.J. 517, 518 (2017).

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