Human Worth as Collateral

Human worth has taken on a surprising new role: that of market asset. Specifically, lenders in radically different contexts are using their borrowers’ human worth as collateral in loan transactions. The two examples of this new collateralization that I examine are credit card lending in the United States and microlending programs in the Third World. I conclude that the use of human worth in these two contexts is too similar to be coincidental. Rather, this new collateralization is a product of globalization. For those interested in the effect of law on globalization, this convergence in the market for credit teaches important lessons. In both the contexts I examine, the laws governing secured and unsecured lending fail to recognize human worth as collateral. For this reason, the new collateralization serves as a counter-example to the claimed centrality of the rule of law in economic development

Housing As Holdout: Segregation in American Neighborhoods

Reviewing Jeannine Bell, Hate They Neighbor: Move-In Violence and the Persistence of Racial Segregation in American Housing; Richard R.W. Brooks and Carol M. Rose, Saving the Neighborhood: Racially Restrictive Covenants, Law and Social Norms; and Douglas S. Massey et al., Climbing Mount Laurel: The Struggle for Affordable Housing and Social Mobility in an American Suburb

Sharing the Cathedral

Sharing is an indispensable part of American property law, often mediating the harsh implications of ownership rights. Yet sharing is also a hidden component of this legal structure. In both theory and doctrinal manifestations, sharing is overshadowed by the iconic property right of exclusion. This Article argues that property law suffers a critical loss from its under-recognition of sharing because it fails to use sharing to correct distributional failures in a world of increasingly scarce resources. Sharing could be the basis for developing a rich range of outcomes in common property disputes. Instead, as described by Calabresi and Melamed in their famed article on remedies, outcomes are tagged to exclusion in the form of blanket property rules and “keep out” signs. As a result, sharing currently functions merely to create very narrow exceptions to broad rights of ownership. To correct this failure, this Article presents a model for sharing as a preferred outcome in property disputes. Sharing as an outcome is a powerful means of addressing property inequalities, limiting harmful externalities, preserving efficiency, and harnessing the extraordinary potential of outcomes in property law

A Poor Relation? Reflections on a Panel Discussion Comparing Property Rigths to Other Rights Enumerated in the Bill of Rights

Presented at the 2006 Brigham-Kanner Property Rights Conference

Housing As Holdout: Segregation in American Neighborhoods

Reviewing Jeannine Bell, Hate They Neighbor: Move-In Violence and the Persistence of Racial Segregation in American Housing; Richard R.W. Brooks and Carol M. Rose, Saving the Neighborhood: Racially Restrictive Covenants, Law and Social Norms; and Douglas S. Massey et al., Climbing Mount Laurel: The Struggle for Affordable Housing and Social Mobility in an American Suburb

Developing Capabilities, Not Entrepreneurs: A New Theory for Community Economic Development

This Article presents a contemporary and compelling American context in which entrepreneurship is not a good solution. Despite the enormous potential that entrepreneurship seems to hold for community economic development, it has thus far failed as a framework for widespread and reliable local economic development and poverty alleviation. The reasons for this failure are grounded both in theory and empirical data. This Article takes up the theoretical question. It examines why entrepreneurship theory is a weak foundation for the work of community economic development practitioners. Arguing that the important work of these practitioners is best understood and measured using a theory grounded in poverty alleviation, this Article offers a modified version of the capabilities approach first developed by Nobel Prize-winning economist Amartya Sen. By relying on a theory that broadly conceptualizes poverty and social exclusion, community economic development practitioners can better evaluate the work that they are already doing. More importantly, the theory proposed here can and should guide practitioners to make straightforward changes with the potential for quite positive gains

Property in Crisis

Property law generally develops gradually, with doctrine slowly accreting in the interstices of daily conflict and the larger culture of property likewise emerging at a glacial pace. In times of crisis, however, fundamental questions about the nature of ownership and the balance between the individual and the state instantiated in the structure of property rise rapidly to the surface. Our current economic crisis—the deepest since the Great Depression—is no exception. This economic crisis, more than many in our history, began with property, sparked in no small measure by structural flaws in the residential market and an ownership society that advocated risk taking with insufficient heed for consequences. Property has likewise played a palpable role in the still-emerging policy response, with concerns about creeping socialism and fears of nationalization shaping regulatory design. As a result, this crisis has unsettled long-stagnant tensions in property theory. It is providing a vivid reminder of the interconnected nature of property while recalibrating the role of property as a repository for risk and reward. These conceptual shifts have brought the state’s role in shaping property to the fore, starkly—albeit perhaps temporarily—placing great weight on the public, communitarian, and even punitive aspects of the nature of property. This crisis thus provides a powerful window to assess the current state of our property discourse and begin to glean lessons about the directions in which property may evolve in the aftermath. Although scholars have begun to grapple with the causes and some of the particular consequences of the current crisis, there has been relatively little theoretical engagement with the role of property norms in the origins of, and in the regulatory response to, the crisis. By identifying the intersection of crisis and property theory with greater clarity, this Article lays the groundwork for normative efforts moving forward. It holds broader lessons as well for understanding the contingent nature of legal change and the structure of one of our most foundational social institutions