Gregory S. Alexander | Cornell University (original) (raw)

Papers by Gregory S. Alexander

SSRN Electronic Journal, 2014

26 Cornell Journal of Law and Public Policy 461 (2017)Seemingly worlds apart, art and the law of ... more 26 Cornell Journal of Law and Public Policy 461 (2017)Seemingly worlds apart, art and the law of property in fact share much in common. Some of this shared space is obvious, the result of their intersection through property law's protection and regulation of art. But another aspect of their commonality is considerably less obvious. Both rely, implicitly and in ways not always acknowledged, on assumptions about objects in the world-thing-ness. That is, both have relied, or traditionally have done so, on certain assumptions about the nature of objects-the objects of art and the objects of property-and the upshot of those assumptions is that those objects are characterized by thing-ness, i.e., physicality, tangibility, stability, durability. Further, these assumptions are not only parallel to each realm but intersect with each other in functional ways. Notably, property law's interaction with art depends upon art's assumption of its own thing-ness, for property law itself t...

Cornell Law Review, 2009

Smith's critique is grounded in his basic ruleutilitarian point that the right to exclusion must ... more Smith's critique is grounded in his basic ruleutilitarian point that the right to exclusion must be understood as the core of ownership, a point that he has eloquently, and repeatedly, made elsewhere. Not surprisingly, given his earlier works in property theory, his desire to define ownership as exclusion is based on information-cost considerations. The point is captured in the following statement from his response: At its core, property draws on an everyday morality that it is wrong to steal and violate others' exclusion rights. Because property requires coordination between large numbers of anonymous and farflung people, there are good information-cost reasons for relying on simple lay moral intuitions when it comes to the basic setup of property. This does not mean that information costs are the only reasons for setting things up this way, but an information-cost theory is compatible with a large range of moral theories other than a narrow case-by-case utilitarianism that disregards the basic problem of information and morality. Thus, use balancing is reserved for t A. Robert Noll Professor of Law, Cornell Law School. Eric Claeys, Jed Purdy, and Henry Smith humble me by writing such thoughtful and penetrating critiques of my article "The Social-Obligation Norm in American Property Law." I am deeply grateful to them for having done so and to the Editors of this volume of the Cornell Law Review for both soliciting their critiques and for giving me the opportunity to reply. I am also greatly indebted to Hanoch Dagan, Bob Hockett, and Eduardo Pefialver for very helpful comments and suggestions on this Reply. Special thanks to Joe Jolly for excellent editorial work.

Virginia Law Review, 1979

Expressions of the need for control have been especially prominent in connection with questions a... more Expressions of the need for control have been especially prominent in connection with questions about the appropriateness and fairness of decisions to apply local substantive law that impose broad liability on defendants when the local contacts are no more substantial than a resident plaintiff.

Michigan Law Review, 1979

Ante-mortem probate stands as a significant recent development in the American law of wealth succ... more Ante-mortem probate stands as a significant recent development in the American law of wealth succession.' It confronts a problem that seriously impairs our probate system, the depredatious will contest, 2 and promises to help revitalize the probate process. Already

Law and Contemporary Problems, 1993

One of Equity's least-discussed triumphs 1 is also one of its most significant: passive ownership... more One of Equity's least-discussed triumphs 1 is also one of its most significant: passive ownership of property. Passive ownership of property has become the dominant mode of owning capital in the United States. It has triumphed over its great rival, the classical liberal model of property ownership. That model, which the common law of property historically promoted, 2 consolidated in a single legal entity, usually an individual person, the relevant rights, privileges, and powers for possessing, using, and transferring assets. The passive model of ownership deviates from classical ownership by disaggregating beneficial property rights from the control and management functions of ownership. Under the passive model, beneficial owners of property rights lack the authority to decide how the assets in which they have a beneficial interest are used. Equity first developed the passive model of ownership through its enforcement of trusts. 3 The trust's separation of property management from beneficial enjoyment provided, in turn, the precedent for the equitable institution that vastly extended the incidence of passive ownership, the corporation. 4 As Berle and Means's classic discussion demonstrated, 5 the rise of the modem corporation signalled a fundamental change in the character of ownership in mature capitalist economies. Prior to the emergence of the modem corporation, individuals who supplied capital for enterprises retained extensive control over

Edinburgh Law Review, 1999

Real burdens, or land-use “servitudes” as they are called in the United States, are usually thoug... more Real burdens, or land-use “servitudes” as they are called in the United States, are usually thought of as strictly private legal devices. Yet in many countries, including the United States, they serve public functions. They are used to constitute residential community associations. These institutions differ from traditional civil society institutions in that they are designed to provide public goods in much the same way as cities do. Generally, they allocate public goods more efficiently than do local governments, which are unable to respond to differences in preferences for various goods and services within given political boundaries. At the same time, however, the very fact that residential community associations perform many of the same public functions as municipalities creates certain tensions between these associations and the neighbouring municipalities. A fair and equitable resolution of these tensions requires that residential community associations be characterised as quas...

Oxford Scholarship Online, 2018

This chapter extends the previous chapter by asking whether the communities to which property own... more This chapter extends the previous chapter by asking whether the communities to which property owners owe obligations include future and/or past generations. The chapter argues that owners do indeed owe obligations to non-living members of generational communities. It argues further that with respect to members of future generational communities there are two types of obligations, one general, the other specific. The general obligation is to provide future generations with the basic material background conditions that are necessary for them to be able to carry out life-transcending projects that their forebears have transmitted to them. Specific obligations enable successive generational community members to whom particular life-transcending projects have been forwarded to be carried out in their intended way. These obligations are defeasible, rather than absolute, however.

Corporate Social Responsibility (CSR) eJournal, 2012

Exclusion theorists of property think that the concept of property properly concerns only the rel... more Exclusion theorists of property think that the concept of property properly concerns only the relations between owners and nonowners — that is, the external relationships of owners, or what we might call the “external life” of property. From this perspective, the internal relationships among property stakeholders — the “internal life” of property — are irrelevant from a conceptual point of view. I argue that this is a distorted and misleading view of property. To reveal this misconception, I distinguish between two types of property, which I call exclusion property and governance property. Governance property, not exclusion property, is the dominant mode of ownership today. the emergence of GP as the predominant form of property means that the right to exclude can no longer be considered the core of private ownership. The right to exclude, although important, is not central to GP; rather, internal governance mechanisms are essential.

Cornell Journal of Law and Public Policy, Spring 2018, Vol. 27, No.3Markets require some sort of ... more Cornell Journal of Law and Public Policy, Spring 2018, Vol. 27, No.3Markets require some sort of property rights, including transferability. Without transferable property rights market relations cannot get off the ground. Moreover, markets assume that these rights refer to some resource, some thing that is the object of the market relationship. In this sense property is, as some commentators recently have argued, about things. Saying that property is about things doesn’t tell us very much, though. It tells us nothing about the sorts of things that are the object of property rights, and it gives no indication whether property rights are uniform and fixed regardless of the sort of thing involved. Things are not all of a piece; pencils are not Picassos. There is no good reason to think that the law of property should treat all things alike. Modularity can take us only so far. Property law does and should make distinctions regarding the rights that owners have or don’t have and the exte...

$Research paper thumbnail of Property\u27s Ends: The Publicness of Private Law Values$

Property theorists commonly suppose that property has as its ends certain private values, such as... more Property theorists commonly suppose that property has as its ends certain private values, such as individual autonomy and personal security. This Article contends that property’s real end is human flourishing, that is, living a life that is as fulfilling as possible. Human flourishing, although property’s ultimate end, is neither monistic or simple. Rather, it is inclusive and comprises multiple values. Those values, the content of human flourishing, derives, at least in part, from an understanding of the sorts of beings we are ― social and political. A consequence of this conception of the human condition is that the values of which human flourishing is constitutive ― property’s ends― are public as well as private. Further, the public and private values that serve as property’s ends are mutually dependent for their realization. Hence, any account of property that assigns it solely to the private sphere, categorically removed from public values, is incoherent

SSRN Electronic Journal, 2007

The relationship between individuals and communitiesall manner of communities, but especially the... more The relationship between individuals and communitiesall manner of communities, but especially the stateis a central preoccupation of property theory. Even though the relationship between individuals and community stands at the conceptual center of property theory, the theories of community underlying discussions of property are frequently left implicit. The dominant approaches to property in Anglophone scholarship, utilitarian and classical liberal theories, treat communities as agglomerations of individuals. Moreover they eschew substantive accounts of justice, favoring what Charles Taylor has called "procedural" conceptions. In this Article, we offer an ontological conception of community that views the individual and community as mutually dependent. In contrast with the two competing theories we describe, we favor a substantive conception ofjustice built around the notion of human flourishing. Although we are reluctant to embrace any particular label for our view, it is broadly Aristotelian in its framework. Once we have sketched the outlines of our theory, we will describe how our ontological theory might operate, using State v. Shack and a prominent South African property case as our central examples.

Law & Ethics of Human Rights, 2014

Under the human flourishing theory of property, owners have obligations, positive as well as nega... more Under the human flourishing theory of property, owners have obligations, positive as well as negative, that they owe to members of the various communities to which they belong. But are the members of those communities limited to living persons, or do they include non-living persons as well, i.e., future persons and the dead? This Article argues that owners owe two sorts of obligation to non-living members of our generational communities, one general, the other specific. The general obligation is to provide future generations with the basic material background conditions that are necessary for them to be able to carry out what I call

The American Journal of Comparative Law, 2002

In recent years a debate has been going on both in the narrow confines of legal scholarship and i... more In recent years a debate has been going on both in the narrow confines of legal scholarship and in the press concerning constitutional protection of private property. Newspapers regularly include articles, columns, and editorials about government agencies that have extended their regulatory power over some resource--whether wetlands, landmark buildings, or rental apartments-and many property owners are outraged at what they view as a gross intrusion on their private domain. The intrusion seems all the worse to these property owners and their supporters because the government's action with respect to their things is more than an inconvenient bureaucratic requirement like mandatory recycling. It is rather a substantial usurpation of their ownership rights that is unaccompanied by any compensation. In legal argot, it is a "taking" of property that masquerades as mere "regulation." To make matters worse, American courts, including (or perhaps one should say espec...

Planck-Institut für ausländisches öffentliches Recht und Völkerrecht 2 The cases are Hodel v. Irv... more Planck-Institut für ausländisches öffentliches Recht und Völkerrecht 2 The cases are Hodel v. Irving, 481 U.S. 704 (1987); First English Evangelical Church v. County of Los Angeles, 482 U.S. 30 (1987); Nollan v. California Coastal Commission, 483 U.S. 825 (1987); and Keystone Bituminous Coal Assn v. DeBenedictis, 480 U.S. 470 (1987).

The relationship between individuals and communities — all manner of communities, but especially ... more The relationship between individuals and communities — all manner of communities, but especially the state — is a central preoccupation of property theory. Even though the relationship between individuals and community stands at the conceptual center of property theory, the theories of community underlying discussions of property are frequently left implicit. The dominant approaches to property in Anglophone scholarship, utilitarian and classical liberal theories, treat communities as agglomerations of individuals. Moreover, they eschew substantive accounts of justice, favoring what Charles Taylor has called "procedural" conceptions. In this Article, we offer an ontological conception of community that views the individual and community as mutually dependent. In contrast with the two competing theories we describe, we favor a substantive conception of justice built around the notion of human flourishing. Although we are reluctant to embrace any particular label for our vie...

Cornell Law Review, 2007

Academic life can be a depressing experience. Despite the enormous amount of time many academics ... more Academic life can be a depressing experience. Despite the enormous amount of time many academics spend producing written scholarship, most of us have little expectation that more than a tiny handful of people will read our published work, if indeed it is read at all. And probably even fewer of us have any expectation whatsoever that the results of our often wrenching labor will be publicly aired. It is a rare occasion when an academic’s scholarship is the subject of public recognition. But oh, how we crave any sort of public commentary, favorable or critical! So, I am extremely grateful that Dean Dagan and Professor Underkuffler found my book, The Global Debate over Constitutional Property: Lessons for American Takings Jurisprudence, worthy of public critique. I am deeply grateful to them for participating in this discussion and also to the Editors of the Cornell Law Review for devoting the space in these pages to make this public conversation possible. In this brief Essay, I will c...

Cornell Law Review, 2019

I also presented it at faculty workshops at the Universities of Sydney and Melbourne and at the L... more I also presented it at faculty workshops at the Universities of Sydney and Melbourne and at the Law & the Humanities Institute at the University of Melbourne. I am very grateful to those faculties for inviting me and for their valuable comments. I am particularly indebted to Hanoch Dagan, Avihay Dorfman, Joe Singer, Tim Mulvaney, Chris Odinet, and Eduardo Pefialver for offering insightful comments and suggestions.

Cornell Law Review, 2003

INTRODUCTION 000 I. THE BASIC LAW, THE SOZIALSTAAT, AND THE “IMAGE OF MAN” .....000 II. ARTICLE 1... more INTRODUCTION 000 I. THE BASIC LAW, THE SOZIALSTAAT, AND THE “IMAGE OF MAN” .....000 II. ARTICLE 14 AND THE ROLE OF PROPERTY 000 A. Property and Self-Development 000 B. Property as Dynamic and Social: The “Social Obligation” of Ownership 000 III. THE SOURCE AND MEANING OF CONSTITUTIONAL PROPERTY ........000 A. The Basic Law as the Source of Constitutional Property: Environmental Regulation 000 B. The Substantive Meaning of Property in German Constitutional Law: Welfare Benefits 000 IV. NORMATIVE IMPLICATIONS OF THE GERMAN EXPERIENCE 000 A. Are Constitutional Property Clauses Inherently AntiRedistributive? 000 B. Should Property Be Treated as a Fundamental Constitutional Right Under the American Constitution? 000 CONCLUSION 000