Book Review: American Property
California Lawyer

Book Review: American Property

A History of How, Why, and What We Own

November 2012

American Property: A History of How, Why,
and What We Own
by Stuart Banner
Harvard University Press, 384 pages, $29.95, hardcover

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I confess that property was not my favorite course in law school. It seemed at the time a dry and hypertechnical subject, focusing on a collection of obscure topics like defeasible estates and the Rule against Perpetuities.

But then again, I didn't have Stuart Banner as my property law professor. Judging by his recently published book, that would have been a rare treat. Banner, who teaches at the UCLA School of Law, has written an eminently readable volume that brings the subject alive. American Property: A History of How, Why, and What We Own is both an entertaining review of how property rules have evolved over this country's 236-year history and an in-depth examination of some particularly fascinating corners of property law.

Early in the book, Banner quotes the English judge William Blackstone, who in the same year America declared its independence from Britain observed, "There is nothing which so generally strikes the imagination, and engages the affections of mankind, as the right of property." Banner aptly notes that Blackstone's observation rings as true today as it did in the 18th century.

The overarching theme of American Property is that property in this country shouldn't be viewed in the abstract, as an end in itself. Instead, the author argues, property has always been "an instrumental value ... a means rather than an end." The concept reflects - and has evolved over more than two centuries in response to - ever-changing materials and intellectual conditions "to match the changes in the goals we think are worth pursuing." Lawyers, judges and legislators have all played prominent roles in this evolution.

Banner's account includes several fascinating observations. For example, it turns out that Herbert Hoover, whose presidency history would view dimly, played an instrumental role in ensuring that the nation's airwaves remained public resources, rather than private property. As U.S. secretary of commerce, Hoover was the most outspoken and visible proponent of public ownership of the airwaves - a most controversial position at the time.

The concept of the condominium as a form of real property ownership didn't gain much traction in the United States until the 1960s. But modern American lawyers and real estate agents didn't create the idea out of whole cloth: Centuries earlier, English barristers quietly pioneered the condominium concept in the form of Great Britain's hallowed Inns of Court, which were owned and operated in the very same fashion.

American Property also disproves the commonly held view that intellectual property and ownership claims to living things are of recent vintage. As Banner documents, intellectual property first emerged as a category of property law in the mid-18th century. And modern legal debates about whether body parts, human embryos, sperm cells, and the human genome constitute "property" find their origins in extensive controversy and litigation from centuries past about whether human hair, skin, blood, and breast milk were property subject to private ownership and legal protection.

At the same time, today's lawyers, judges, and policymakers are confronting several types of property claims previously unknown to the American legal system. One is the phenomenon of pollution credits, such as the cap-and-trade program California air regulators are launching this month as part of a multifaceted strategy to abate the state's aggregate greenhouse gas emissions. Are such pollution credits a type of private property entitled to legal protection?

As much as contexts change, though, we can still learn much from the legal system's treatment of analogous debates over diverse forms of property from decades or centuries past. And future lawyers will continue to benefit from America's endless fascination with ever-evolving notions of what is and isn't property.

Richard M. Frank is a professor and director of the California Environmental Law and Policy Center at the UC Davis School of Law.

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