The history of American property

With all the recent posts on the rule of capture, equitable apportionment, and the like, readers may be interested in Douglas Harris's review of Stuart Banner's American Property: A History of How, Why, and What We Own (Harvard, 2011). Harris, who has written on (among other things) the history of fisheries law, explains that

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.

Though the book's table of contents doesn't reveal a direct engagement with environmental matters, it no doubt deals with property-law issues that are tightly connected to environmental ones. As Harris describes:

One thematic bundle [of chapters] addresses changing understandings of the idea of property. In these chapters, Banner situates analyses of changing property doctrine in the politics of property and, more specifically, in the balancing of public regulation and private property.

In “A Bundle of Rights,” for example, Banner disputes the conventional account of the emergence of this metaphor for property, arguing that it appeared in the nineteenth century as part of an effort to enhance constitutional protection for private property—not in the early twentieth century in the service of a progressive effort to enhance state intervention in the economy, as has been conventionally understood. Banner also provides an engaging account of the Realist articulation of property as power in a later chapter, “People, Not Things.” Nevertheless, he maintains that the metaphor appeared earlier, in the service of those looking to enhance rather than diminish protection for private property: “In the late nineteenth century,” writes Banner, “the idea of property as a bundle of rights was a distinctly antiregulatory idea, one that served the specific purpose of justifying constitutional doctrines that would limit the power of legislatures to regulate in ways that would reduce the value of property.