Private Law Theory

“It is often said that the Anglo-American legal tradition recognizes only a ‘relative’ conception of title, in which no person is ever truly able to claim an exclusive right in or to a thing, only a better claim to it than someone else. Luke Rostill’s recent book, Possession, Relativity of Title and Ownership in English Law, appears at first glance to offer a sustained defense of something very much like this perspective, by arguing that possession in English law serves as a means of acquiring a full fee simple estate in land, or a general property interest in chattels, even in respect of things already owned by others …”

Sérafin, Stéphane, Possession, Relativity of Title and Ownership in English Law by Luke Rostill (Book Review) (December 15, 2021). (2022) 66 Canadian Business Law Journal 148.

ABSTRACT
Political and property crises present vital new questions for property theorists, and analyses of state responses to these crises cast new light on how property systems, and property law, adapt and evolve to meet complex challenges – while remaining institutionally resilient themselves. The novel coronavirus pandemic was an extreme, exceptional, unexpected, significant ‘shock’ event, with financial, economic, social, cultural, and political impacts on a scale not experienced since at least the 1930s. The pandemic posed an unexpected, unpredictable, and urgent threat to human life that demanded immediate action, delivered under intense public scrutiny. The challenges were ‘wicked’: governments were compelled to act, in conditions of uncertainty and in response to a complex set of high-stakes problems, with imperfect information about the impacts of policy choices or the likely endpoint of the pandemic.

In acting swiftly to protect their populations, governments adopted radical strategies to shore up housing and home, to tackle street homelessness, and to protect tenants and mortgagors from the threat of eviction. Perhaps most notably, pandemic policies to protect housing intervened with private property law in ways that were unimaginable before spring 2020. In this Article, we examine the range of ways that governments adapted their approaches to property, housing, and homelessness during the pandemic. We analyze the adaptation of property rules in the pandemic using the new theoretical and methodological framework of ‘Resilient Property’. We consider the implications of the actions to adjust the laws and policies that govern property, housing, eviction, and homelessness, and reflect on the legacies of these actions for property theories and property law.

Roark, Marc L and Roark, Marc L and Fox, Lorna, Comparative Property Law and the Pandemic: Vulnerability Theory and Resilient Property in an Age of Crises (July 19, 2022). Louisiana Law Review, volume 82, no 3, 2022.