Brandon Weiss, ‘Progressive Property Theory and Housing Justice Campaigns’

ABSTRACT
Progressive property theory emerged a decade ago to challenge law and economics as the dominant theoretical mode of property law analysis. Offering a fresh look at the rights and obligations of ownership, progressive property theory argues, among other propositions, that property rules and institutions should further the ability of all people to obtain the basic resources necessary to engage in the social and political life of a community.

Meanwhile, housing justice campaigns being waged across the United States, promoting policies like inclusionary zoning and rent control, are frequently met by critics who make theoretical arguments about the fundamental nature of property. Housing advocates often cede the theoretical domain, and instead respond with pragmatic data-driven appeals or technical precedential arguments that, I argue here, would benefit from a more robust theoretical grounding of the sort progressive property theory could provide.

Progressive property theory, however, is yet to exert any measurable influence outside of legal academia. Scholars have offered a variety of critiques of the theory that may help to explain its limited impact. I argue that exogenous factors – those external to the theory itself – also hold significant explanatory force. I conclude that the law school clinic could serve as one ‘theory delivery mechanism’ to infuse progressive property theory more broadly into US law and legal institutions.

Brandon M Weiss, Progressive Property Theory and Housing Justice Campaigns, 10 UC Irvine Law Review 251 (2019).

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