Populist Property Law

Abstract

Property scholars think of property law as consisting of a small number of highly technical forms created a long time ago by experts, i.e., legislatures and courts, which are hardly accessible to non-lawyers. This Article explores a new idea: the possibility that ordinary people, with little or no legal training, can become active participants in the creation of property law, directly intervening in the development of new property forms. The Article tells the story of two nineteenth-century American social movements that represented the little guys - workers and farmers - who used their \u27folk legal imagination to develop new property forms that would solve their most pressing needs by improving access to key economic resources such as land or credit. The story of populist property law deepens our understanding of property law in three important ways. First, it gives us a new appreciation of how property law is produced and organized, as well as a new perspective on the standard narrative of the historical development of property law in America. Second, the story of populist property law speaks to the democratic legitimacy of property law, suggesting that it has long sought a deeper level of democratic legitimacy stemming not just from democratically elected legislatures but from the people themselves. Third, populist property law helps us understand recent developments in property law. The rise in income and wealth inequality in recent decades has spurred a new wave of populist property law, and the story of nineteenth-century populist property law helps make sense of ideas and proposals that have arisen as a result