Osgoode Hall Law Journal
property; law; land; intellectual property; legal history; United States
Property Law is about things, but only secondarily. It is primarily about relationships between people as they pertain to things. As a result, although we commonly identify material and immaterial things as private, common, or state property, property law deals with the subset of human relationships that determines rights and responsibilities with respect to things. The institution of property law — the rules that define this subset of human relationships — arises in the context of scarcity. When things are scarce and accordingly hold exchange value, humans construct ideas of ownership. We have been doing so for millennia, or at least long enough that the subject of property law has acquired a reputation as antiquarian. Certainly in the common law tradition, many property law courses appear lost in the mist of English legal history. This need not be so. Property law deals with the allocation of scarce resources and therefore is also about the allocation of power. Understood this way, property law can be a lens through which to understand many of the most pressing social issues of the day. Similarly, the history of property law need not be dull. At least ten centuries of social change, economic transformation, technological innovation, and human drama can be seen in the customs and conventions, judicial decisions, and statutes that comprise the law of property in common law jurisdictions. In American Property: A History of How, Why and What We Own, Stuart Banner, the prolific legal historian and property law scholar, sets out to describe contestation and change in ideas about property over several centuries in the United States. The result is a beautifully and accessibly written book, stunning in scope, elegant in structure, and remarkably revealing in its detail about the debates over and the uses of property law doctrine and of the broader ideas that support the divergent interests and claims.
Douglas C Harris, Book Review of "American Property: A History of How, Why, and What We Own" by Stuart Banner (2012) 50 Osgoode Hall LJ 465.