Law School Professors Reject Property Rights

, Malcolm A. Kline, 6 Comments

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People without college degrees, or even high school diplomas, appear to understand property rights. Why can’t law school professors?

Evidence of the former can be found trend can be found in the number of signs one sees that read, “This house protected by shotgun three nights a week. You guess which three.” Fences and walls are other good indicators of this cognizance.

Evidence of the latter phenomenon seems almost as overwhelming. “Property is just a bundle of sticks, according to law professors,” Adam Macleod, a professor at Faulkner University’s Jones School of Law said at the annual meeting of the Philadelphia Society in Dallas last weekend. “They consider it a creation of the state.” The Philadelphia Society is a group of conservative intellectuals formed in the wake of the Goldwater defeat in 1964.

Moreover, “The American Law and Property Society thinks property rights are an entitlement,” MacLeod avers.

When the Supreme Court does issue a ruling that reaffirms property rights, law school professors are generally aghast. They “baffle my colleagues who think the Koch brothers are sitting on the Supreme Court.”

MacLeod did note drily that law school students can be a tough sell too: “‘I can’t wait for property class!’ are words that have passed through the mouths of no law student ever.”

 

6 Responses

  1. JoeThePimpernel

    April 7, 2017 10:32 am

    “Property is just a bundle of sticks…”

    And government is just a bundle of crooks.

  2. KaD

    April 8, 2017 10:28 am

    Liberals, that’s why. The sooner you realize that everything that comes out of their mouth is WRONG the easier and better your life becomes.

  3. Donald O'Connor

    April 8, 2017 12:55 pm

    Socialists believe in government control of private property.

    Communists believe in government ownership of property – there is no private property.

  4. Steve Sheppard

    April 8, 2017 1:00 pm

    Dear Mr. Kline,

    I respect the mission of Accuracy in Academia.org to quest for truth. Over time, I have enjoyed some articles more and some less, but I remain an irregular reader. I have wondered, though, whether I was right to discern an occasional hostility of the site to law, lawyer, and law professors. Not that lawyers aren’t prone to such hostility ourselves, at times.

    Still, one would hope a site such as yours would take some care to validate or at least to question its assertions against some of the core principles of higher education. This should be all the more true when a snide remark is against one of the few professions dedicated to the Constitution, to individual rights, and to the very idea of the rule of law.

    So I ask you to reconsider your article that expresses either the view of Professor Adam MacLeod or your understanding of his view. Either way, your article based on his talk at the Philadelphia Society meeting is baffling.

    I prefer not to conclude this, but I have to wonder if you have chosen to write about the law, but you do not understand it.

    It is hard to believe you would defend – as an idea of property — a sign saying, “This house protected by shotgun three nights a week. You guess which three.” OK, so it is funny. It is a hook to attract the reader. But it is neither property nor the law. The law allows people to defend themselves in their homes with force, even deadly force under very limited circumstances. But it does not allow the protection of property in and of itself by the death of other people. States that have the “castle defense” limit it so that it is clearly for use when there is peril or likely peril to a person, not just to the property. That is why spring guns and landmines are illegal as tools to protect private property.

    Just to get ahead of one possible issue in your article, it would be no good saying this description of property is that of the state, but the real concept of property is defined by God or by nature. Neither nature nor the Almighty would reach a different conclusion.

    Further, you quote or imply a complaint that law professors think property is defined by the state. Well, of course it is. Perhaps the Lord gave Adam dominion over all the Earth and the things therein, but He said nothing about what would happen once his children needed to walk over one another’s plots of ground. The Law, acting for the State, created easements (and their limits). As it did future interests, property recordation, and a way to determine who of two claimaints owns a chattel without threatening to cut it in half.

    Of course, I don’t know you. You seem level-headed most of the time. Maybe you do understand this but are just teasing your readers. If so, then let us move on to the heart of your article.

    In demonstrating the second of two phenomena, that law professors can’t “understand property rights,” you quote Professor MacLeod:

    Evidence of the latter phenomenon seems almost as overwhelming. “Property is just a bundle of sticks, according to law professors,” Adam Macleod, a professor at Faulkner University’s Jones School of Law said at the annual meeting of the Philadelphia Society in Dallas last weekend. “They consider it a creation of the state.”

    Both assertions are quite accurate as to what law professors think. And they have thought it in various forms for centuries. I was not there, but I guess that Professor MacLeod was likely presenting an argument from his Property and Practical Reason, which presents an alternative view to the nature of property and that rightly finds moral arguments that transcend certain aspects of law and that demonstrate certain limits on the “bundle of rights” view of property.

    But they are hardly evidence of that law professors who use “bundles of sticks” to teach have a small regard for property. To the contrary, that metaphor has often been held up for the recognition of property as a right (indeed as a right to hold many rights), to ensure that recognition by the state, and to enforce those rights both against the state when needed and to protect and allocate those rights when they are contested between rival claimants.

    Here is a nice suggestion of how the “bundle of sticks” arose as a metaphor to explain the “bundle of rights” that they represent. This quote is from William Reynolds Vance, the venerable professor of property who had succeeded John W. Davis as professor at Washington and Lee and became Dean there in 1902, at the suggestion of Henry St. George Tucker, the great interpreter of Blackstone in America. Vance followed Tucker to GWU law (then Columbian) where Vance again succeeded Tucker as Dean, afterword serving as Dean of Minnesota before decamping to Yale, where he taught for the rest of his life, specializing both in property and in the property interests created in corporate equities. Below, Prof. Vance describes property as a “bundle of sticks” which he regretfully accepts as an analogy for the more accurate metaphor more customarily employed. As a bonus, in the same passage, he relates this back to the idea of property as a creation of the state.

    By way of summary answer to the initial question, Is there tenure in the United States? we are justified in making the following statements:

    1. At all periods of the history of the Anglo-American law of real property, it has been assumed that the absolute ownership of all lands was originally in the Sovereign, whether called “crown” or “state”; that is, the Sovereign possessed the largest bundle of rights, powers, privileges and immunities, unburdened by any duties, liabilities or disabilities, that can conceivably be enjoyed with respect to lands.

    2. At no time has the sovereign in making grants to subjects parted with the whole bundle of “sticks” (to use the crude but striking figure now current in the classroom) which make up his absolute ownership, but in ancient “feudal” times he retained more numerous and more important sticks of this bundle than he does in modern “allodial” times. The relationship between sovereign and occupant of land has long been called tenure, and may well enough continue to bear that label in the United States as well as in England, even though the sovereign’s bundle of retained legal relations is greatly shrunken.

    William R. Vance, The Quest For Tenure In The United States, 33 Yale L. J. 248, 270-71 (1924).

    I mean no disrespect to Professor MacLeod. I suspect he has much more respect for the bundle metaphor as a bastion for property rights than you suggest. Indeed in an old blog post he quotes Justice Kennedy for the point that mere notice before purchase of an overly burdensome regulation does not justify the regulation’s burden on a property right: “The Court rejected this argument, commenting, “The State may not put so potent a Hobbesian stick into the Lockean bundle [of rights].” Adam J. MacLeod, Property and the Regulatory State at the Supreme Court, Public Discourse, http://www.thepublicdiscourse.com/2013/03/6667/ (last visited Apr. 8, 2017), quoting Palazzolo v. Rhode Island, 533 U.S. 606 at 627 (2001).

    Nor do I mean any disrespect to you, Mr. Kline. I do hope, however, that you will indeed continue more to quest for truth. This article can be read as evidence that you are questing for enemies, and you are willing to cut what corners you may to pick some whom your readers might prefer.

  5. Ted Bell

    April 9, 2017 6:31 pm

    Mr. Sheppard,

    I would argue that the basis of your comment is exactly the point Mr. was making; The difference between the common man’s understanding of the concept of private property, and the legalistic interpretation of it. Your premise appears to rest upon the Divine Right of Kings, in that the state is the ultimate earthly authority, with the populous having only that allowed by his lord. (lower case “l”) The common man’s view, in this country, is that the revolution was fought explicitly to overturn that system, and to put every free man on an equal footing. By that view, property rights must be absolute, as there is no free man with sovereignty over another. Where you see a bundle of rights to use land, some of which may be revocably bestowed upon a tenant by a sovereign lord, the common man sees a fundamental distinction between malum in se and malum prohibitum. On private property, the latter is null and void. The former, being the jurisdiction of common law, only tangentially involves the state. A jury of a man’s peers, therefore, retains certain powers over a man on his own land, but the state does not. A landowner is his own sovereign.

    I understand that this is NOT how the state views property rights. I offer this only as a description of the common man’s view of what property rights SHOULD BE. My impression is that the average landowner believes American property rights were originally as I’ve stated, that said rights were explicitly what the revolutionary war was fought to attain, and that the state to this day has no legal basis for enforcing malum prohibitum laws on private property.

    The question becomes, who’s right? The state, of course, maintains your view that it retains ultimate ownership of all property, allowing “landowners” to claim certain privileges in return for up front cash, fealty, and annual rent payments. But the common man can find no support for this position in the founding documents of this country. In fact, the propaganda emitted by the state to this day plainly espouses the definitions I’ve given, even as it writes and enforces laws with the exact opposite consequences. The constitution explicitly names the people as the source of all state authority, with office holders even taking the title of “civil servants.” A servant does not have sovereignty over his lord.

    While not spelled out in the constitution, the federalist papers make it clear that statute law is to be subservient to common law. The ultimate authority therefore rests not with the state, but with the jury. The common man, not the state, was to be the interpreter of the constitution. The supreme court usurped this authority on the laughably absurd claim that it was in a better position to divine meaning from James Madison’s words than was Madison himself. Since then, with absolutely no legal basis to do so, the judiciary has de facto replaced common law with case law. That put us on the same path as the medieval catholic Church. Pope Leo X maintained that the Bible, being the divine work of the Lord, was beyond the common man’s comprehension, and could only be understood by those trained and approved by the church. Today’s judiciary, in the same fashion, claims that the constitution was written by our betters, and can only be understood by those trained and approved by it’s high priests. In both cases, I take Martin Luther’s view. The constitution, like the Bible, was a gift to the common man, intended to be read, understood, and upheld, by him. The constitution in particular was written in unusually plain language, as if to make a point of it’s transparency and simplicity. It does not bind the common man, it binds the state. It’s preamble specifies We the People as the ultimate authority, with the state existing for our benefit, and at our pleasure. Further, the declaration of independence states that the common man has irrevocable authority to dissolve any government that no longer serves his will.

    That’s a lot more than I’d intended to type. But it all comes down to this: The bundle of sticks analogy is in direct opposition to the plain text of our founding documents. If the constitution is still in effect, the common man is the ultimate earthly authority, therefore his definition of property rights is supreme. The description you provide, while accurate, assumes that the constitution is no longer in effect, and that the state rules through sheer force, instead of consent. The common man still believes in the legal primacy of the constitution, therefore rejects the current state usurpations of property (and other) rights as illegitimate, and in desperate need of remedy.

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