Article by Meghan L. Morris
What are the “things” of property? Recent debates in property scholarship have drawn a line in the sand between a theory of property as the “law of things” and a theory of property as social relations. The project to define property as the “law of things,” rather than a bundle of rights, is important. Property scholars intent on parsing its social relations have indeed paid short shrift to the things of property. But the notion of property as the law of things also misses something crucial: things can often neither be neatly defined nor cleanly excised from the social world.
This Article proposes a new theory: property as the law of social things. While heeding the call to re-center things, this approach takes things as fundamentally indeterminate and inextricable elements of social life. The theory is grounded in social theory about “things” and is explained by reference to cases that delineate the things of property in a range of contexts, including land, property in marriage and nonmarriage, and genetic ownership. As environmental and social pressures demand the drawing of new boundaries around the “things” of property, a theory of social things sheds new light on these property disputes and their potential resolution.
About the Author
Meghan L. Morris. Assistant Professor of Law, University of Cincinnati College of Law. I am grateful for comments and suggestions from Greg Alexander, Albertina Antognini, Nick Blomley, Caroline Bradley, Kevin Brown, Nestor Davidson, Jerry Dickinson, Stephanie Didwania, Anna di Robilant, Rashmi Dyal-Chand, Nate Ela, Andrea Ford, Luis Fuentes-Rohwer, Don Gjerdingen, Sandy Kedar, Amanda Kleintop, Duncan Kennedy, Teng Li, Michael Madison, Mike Mattioli, Ajay Mehrotra, Elizabeth Mertz, Christiana Ochoa, Jeffrey Omari, Eduardo Peñalver, Ileana Porras, Asad Rahim, Jeremy Siegman, Henry Smith, and Susan Williams. This Article also benefited from comments received at faculty workshops at the University of Miami School of Law, the Indiana University Maurer School of Law, the University of Pittsburgh School of Law, and the University of Cincinnati College of Law, as well as at the Property Works in Progress conference, the Association for Law, Property, and Society annual meeting, the American Bar Foundation Doctoral Fellow Workshop, and the Law and Society Association annual meeting. Eva Derzic, Caleigh Harris, and the editors at the Tulane Law Review provided excellent editorial assistance. All errors are, of course, my own. This Article was written with the support of the American Bar Foundation and the National Science Foundation under Grant No. SES-1655497.
Citation
97 Tul. L. Rev. 403