Private Law Theory

ABSTRACT
Until the 1970s, American property law differed sharply from its English antecedents. English law was dominated by a land-owning gentry class who favored stability of ownership and dynastic control of landed estates using perpetuities and trusts, generous compensation for condemnees, and irregular lot lines based on local custom that impeded land’s alienability. After World War II, the same gentry-driven culture imposed greenbelts and local restrictions that shut down new housing construction for the preservation of rural land. By contrast, the central focus of American law from the early republic to the 1970s was to make land easy to buy and develop, even at the expense of incumbent owners’ interests in stability, local landowner control, and prevention of externalities. That focus on development, however, has changed since the 1970s. We demonstrate how different aspects of real property law and regulation have increasingly prioritized ‘stasis’ – protecting existing owners, limiting change, and preserving local control – over ‘development’ – promoting growth, liquid markets, and cosmopolitanism. This shift extends beyond well-documented changes in zoning to areas like covenants, conservation easements, forms of ownership, and property taxation. The Article provides evidence of this trend through several examples: the rise of effectively permanent homeowners’ association covenants that limit future land use changes; the explosion of conservation easements that permanently restrict development; the failure to reform archaic forms of ownership that inhibit efficient land use; and property tax reforms that discourage property turnover and new development. We further argue that this shift toward stasis has imposed substantial economic costs, contributing to housing crises and reduced growth, without providing sufficient offsetting benefits. While some degree of stability in property rights is necessary, the Article concludes that property law has tilted far too far toward protecting incumbent interests at the expense of development and change. It suggests various reforms across property law domains to restore a better balance between stability and growth.​​​​​​​​​​​​​​​​

Schleicher, David and Hills, Roderick Maltman, How the Gentry Won: Property Law’s Embrace of Stasis (February 27, 2025).