Property as Rent

(Excerpt) What is property? Over the course of the past two decades, legal scholars have reopened this question in a highly visible and often fractious way. On one side of the renewed debate are those who have sought to restore an object-centered model of property as an in rem right to exclude; on the other are those who have sought to reorient the old adage that property is a “bundle of sticks” toward a new emphasis on property’s role in forging social relations and democratic community. Sometimes known as a split between the “ownership” versus “progressive property” models, as fruitful as the renewed debate between the exponents of these two views has been, it has been equally paradoxical. This is especially so today, after the epochal events of the 2007 financial crisis and the ensuing Great Recession, the most profound since the Great Depression of the 1930s, which only widened the gap between our theories of property in law and its actuality in real world financial practice. Indeed, central to the 2007 crisis was the vast expansion of mortgage securitization, a practice involving the assemblage of homeowner debt into complex new forms of financial asset property in which the individual right to exclude is, at best, of clearly secondary importance. Suffice to say, amidst the rise of securitization, it was never the ordinary homeowner who decided whether to grant access to her property for the purposes of making it part of the other kinds of debt-based assets being sold to distant investors on the world’s financial markets