Henry E. Smith

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Mind the Gap: The Indirect Relation between Ends and Means in American Property Law, 94 Cornell Law Review 959 (2009)


More than most areas of law, property causes impatience. Most of us have a sense that property is doing something important, but it does it in a somewhat mysterious way. Yes, laypeople have a clear sense of who owns what, and scholars can more or less expound the welter of rules that come under the heading of “property.” But to many, the fact that much of the time property tells some people that they can tell other people to keep out seems selfish and rude, and more or less unrelated to the purposes for which we have property in the first place. We, speaking of course on behalf of society, have a clearer sense of what property is supposed to do than how it is supposed to do it. Gregory Alexander’s The Social-Obligation Norm in American Property Law shares these strengths and weaknesses. Its virtue is in being very clear about purposes, but its focus on ends ultimately undermines its account of and justification for its chosen means.

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