The Ambition and Transformative Potential of Progressive Property,
101 Cal. L. Rev. 107
Available at: http://scholarship.law.berkeley.edu/californialawreview/vol101/iss1/5
The emerging progressive property school celebrates and finds its meaning in the social nature of property. Rejecting the idea that exclusion lies at the core of property law, progressive property scholars call for a reconsideration of the relationships owners and nonowners have with property and with each other. Despite these ambitions, progressive property scholarship has so far largely confined itself to questions of exclusion and access. This Essay argues that such an emphasis glosses over race-related acquisition and distribution problems that pervade American history and property law. The modest structural changes supported by progressive property scholars fail to account for this racial history and, by so doing, present a limited vision of the changes to property law that progressive scholars should support. Though sympathetic with the political and scholarly orientation of the progressive property school, and with its policy arguments regarding exclusion and access, I argue that the first priority of any transformative project of progressive property must be revisiting acquisition and distribution.