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

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. H APPINESS & THE L AW : A B RIEF O VERVIEW ........................... 1368 B. I NCLUSION , D ISPOSSESSION , AND H APPINESS ........................... 1372 C. T OWARD I NCLUSION AND D ISPOSSESSION ................................ 1379 III. HAPPINESS, INCLUSION, AND THE SHARING ECONOMY ............... 1380 A. P ROPERTY , S HARING , AND R EGULATION ................................. 1380 B. S HARING AS H APPINESS : F OUR E XAMPLES ............................... 1382 1. True Sharing ................................................................ 1383 2. Disintermediation ....................................................... 1385 3. Community .................................................................. 1386 4. Access over Ownership ............................................... 1389 C. T OWARD H APPIER S HARING ................................................... 1390 IV. HAPPINESS AND CHARITABLE GIVING ......................................... 1394 A. T HE H EDONIC C ASE A GAINST THE C HARITY D EDUCTION ........ 1395 B. C HOICE A RCHITECTURE FOR H APPIER D ONATION ................... 1398 1. Pure Libertarian Approaches ..................................... 1398 2. Libertarian-Paternalist Approaches ........................... 1399 V. HAPPINESS, LAW, AND THE NEW MINIMALISM ............................ 1403 A. T HE J OY OF N OTHING : M INIMALISM & H APPINESS ................. 1403 B. M INIMIZING P ROPERTY T HROUGH L AW ................................. 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 OVERCONSUMPTION 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 States: 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 evidence could show that the McCoys lacked title. 7. Jill Fraley, The Meaning of Dispossession , 50 IND. L.J. 517, 518 (2017). 1364 IOWA LAW REVIEW [Vol. 103:1361 exclude others from our land matches with deep-rooted instincts. 8 One modern expression of the drive toward exclusion is the proliferation of gated developments, often featuring manned security entrances, sold to buyers as “exclusive communities.” 9 The burgeoning home security industry feeds this desire for exclusion by selling alarm systems, security cameras, and signs designed to enforce the exclusivity of our real property. These modern trends find a historical analog in early cases expressing ambivalence—and sometimes outright approval—of “spring guns” designed to kill any intruder who as much as opened a strange door without permission. 10 The notion of exclusion similarly preoccupies property theorists. Scholars readily concede that exclusion is central to the idea of property; 11 the only question is whether it is merely one of a handful of rights that comprise the legal notion of ownership or the defining feature of property itself. 12 The idea that exclusion is central to property goes back at least to Blackstone, who famously (if inaccurately) referred to property as “that . . . despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.” 13 The development of property law tracks this preoccupation with exclusion. In the past decade, for example, 32 states have revived the castle doctrine under the rubric of “stand your ground.” 14 8 . See generally Jeffrey Evans...