The twin notions of exclusion and possession dominate our cultural and legal conceptions of property. This Article uses the lens of hedonics – the emergent science of happiness – to make a case for the less appreciated notions of inclusion and dispossession. Evidence from this new field shows that owners maximize their welfare not when they amass land and chattels and keep others away from them, but when they pursue the polar-opposite strategies of inclusion and dispossession, such as sharing their property, donating it to charity, or giving it away. This Article begins its defense of inclusion and dispossession by providing background about the idea of happiness and law, an increasingly important conceptual framework for evaluating the welfare of law and policy. In then reviews the hedonics evidence about property, which reveals that despite the hegemony of exclusion and possession, what actually increases owners’ subjective well-being is to use their property to create social ties, to give it to a personally meaningful cause, or just to get rid of it entirely. The Article then considers specific strategies of inclusion and dispossession. As an example of inclusion, it analyzes the sharing economy. In terms of dispossession, it looks to tax incentives for charitable deductions and the trend toward minimalist attitudes toward real and chattel property. For each of these examples, the Article reveals unappreciated ways that these inclusion and dispossession strategies enhance owners’ subjective well-being, and then suggests particular forms of choice architecture that have the potential to optimize the overall social welfare produced by each of them. Finally, this Article concludes by considering the implications for property theory of the novel notions of inclusion and dispossession, emphasizing that this claim works to enrich, not undermine, the institution of private ownership.
Fagundes, Dave, Why Less Property Is More: Inclusion, Dispossession, and Subjective Well-Being (March 2, 2017). Iowa Law Review, forthcoming.