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date: 18 November 2019

Abstract and Keywords

This article argues that despite its seeming disintegration, property is more vibrant than ever — it is a field that has focused on understanding the formal and informal institutions by which society channels decision-making for scarce resources. Many exciting recent innovations in property theory have arisen through dialogue between US and Commonwealth scholars and legislatures. The article is organized as follows. The first part explains the focus on analytic property theory, which is posed in distinction to a jurisprudential approach. The second part introduces the familiar division of ownership into a trilogy of ideal types: private, commons, and state. The next three parts use this trilogy to show how defining, integrating, and constructing these ideal types can lead to useful innovation in property theory. In sum, property theory scholarship seems to work cyclically — reasoning from real-world contests over scarce resources, to analytic tools that translate these struggles into useful conceptual terms, to jurisprudential debates regarding the rightness of resulting allocations, to practical politics that implement one property regime or another, and then back to new on-the-ground struggles.

Keywords: property law, property theory, private property, commons property, state property, ownership

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