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/
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 US—AND 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).