Tenured and Tenure-Track Faculty
Nestor Davidson

A foundational argument long invoked to justify stable property rights is that property law must protect settled expectations. Uniting otherwise disparate strands of property theory focused on ex-ante incentives, individual identity, and community, respect for expectation privileges resistance to legal transitions that transgress reliance interests. When changes in law unsettle expectations, such changes are thought to generate disincentives that Frank Michelman famously labeled demoralization costs. Although rarely approached in these terms, arguments for legal certainty reflect underlying psychological assumptions about how people contemplate property rights when choosing whether and how to work, invest, create, bolster identity, join a community, and other decisions at property’s core. More precisely, demoralization is predicated on a kind of paralysis flowing from particular anxieties about instability, unfair singling out, and majoritarian expropriation that can be sparked in legal transitions. This prevailing psychological portrait of expectation has considerable intuitive appeal and is widely influential. It is, however, radically incomplete. This Article offers an alternative picture of the expectations with which people approach property and the corresponding anxieties that might cause people to hesitate. In this perspective, stability is less important than the assurance that the legal system will respond when external forces threaten to overwhelm the value owners will create, that the rules will provide a fair process of adjustment over time, and that the property regime will ensure inclusion. In short, property law can offer morale benefits that are every bit as critical as the demoralization costs so much at the center of the discourse. If property theory and doctrine now largely juxtapose ex-ante certainty against ex-post flexibility, a morale lens underscores that legal transitions can signal responsiveness as easily as instability. Doctrinally, this understanding can recalibrate property law’s approach to expectation and can illuminate the value of signaling responsiveness as a regulatory strategy. Normatively, property’s largely ignored, but absolutely vital, morale function provides a framework for understanding how the legal system can appropriately, if cautiously, buoy confidence to foster all of the work with which property is so rightly associated.

Scholars have developed a significant literature exploring the work of deal lawyers, with the essential insight that attorneys acting as transaction-cost engineers have unique potential to add to the overall value of deals. This value-creation literature has traditionally made two foundational assumptions about the role of the state in transactional law. First, scholars have assumed that regulation is essentially irrelevant to transacting'that from the deal lawyer's perspective, the government is a factor only to the extent that the state will enforce private agreements. Second, scholars have assumed that private parties uniformly view public policy as a constraint in the realm of compliance'that from the deal-lawyer's perspective, clients are indifferent, if not hostile, to regulatory goals. The first assumption is the subject of recent scholarship convincingly arguing that regulatory arbitrage should be added to the picture of deal lawyers as transaction-cost engineers. The second assumption, however, has gone unchallenged and is the focus of this Article. Although the value-creation literature envisions a monolithic orientation toward the state, in practice, partnerships that engage the private sector in advancing a variety of public goals represent both a significant sector of the economy and one of the central contemporary approaches to policy by federal, state, and local governments. Deal lawyers are thus increasingly called upon not only to reduce transaction costs and leverage regulatory constraints, but also to manage a complex alignment of interests between private means and public ends. In short, lawyers in public-private transactions perform what this Article calls regulatory translation'transmogrifying the often abstract goals of public policy into the concrete mechanisms of private ordering. This Article makes two primary contributions to the literature. First, it identifies an increasingly important transactional context largely ignored by scholars investigating the work of deal lawyers. Second, the Article gives a normative theoretical grounding for that work, a grounding that has the potential to enhance the advantages and mute the problems associated with public-private partnerships. Ultimately, lawyers in this context can create value in the broadest sense of the word, and there are lessons in this for deal lawyers in all transactions.

Property interests evince a near-universal tendency to coalesce into a limited list of mandatory forms, such as the estates in land, servitudes, and the forms of intellectual property. This standardization poses an intriguing puzzle for property theory. If property law is meant to bolster autonomy and enhance the efficiency that private ordering can bring to economic relations, how then to account for a persistent feature of the law that seems to undermine these goals? A number of scholars have grappled with this problem in recent years. Some have argued that aspects of standardization might actually be efficiency enhancing. Others have argued that standardization instead reflects inherent categories of social or objective meaning. Efficiency theories, however, overemphasize structure, while explanations focused on content underappreciate the architecture of standardization. This Article proposes a new approach that focuses on the particular patterns of pluralism evident in the standard forms. Even as standardization remains a consistent feature of property law, the legal system constantly tinkers with the standard list and with the mandatory content of the forms themselves. This process produces a menagerie of forms that reflect the ongoing resolution of complex, competing values embodied in property law. The pluralism evident in the forms thus brings to the fore the essentially regulatory function of standardization. Standardization persists in property law because it provides a stable framework through which the legal system regulates the ever-changing public aspects of this central area of private property. This pluralist account of standardization as regulatory platform sheds light on contemporary debates in property theory more generally, including the development of property rights, the relationship between intellectual property and more traditional forms of property, and the constitutional balance between individual expectation and state ordering in regulatory takings.

Direct relations between the federal government and local governments'what this article calls "cooperative localism"'play a significant and underappreciated role in areas of contemporary policy as disparate as homeland security, law enforcement, disaster response, economic development, social services, immigration, and environmental protection. Despite the ubiquity of this practice, a jurisprudential clash is looming that threatens this important facet of intergovernmental relations. Historically, courts have allowed local governments to invoke federal authority as a source of local autonomy, despite the prevailing view of local governments as powerless instrumentalities of the state. The Supreme Court is increasingly suggesting, however, that state control over local governments is a fundamental aspect of state sovereignty worthy of triggering judicial limits on federal power. When this confrontation inevitably comes to a head, limiting federal authority to empower local governments would be a mistake. This article instead proposes a new framework for conceptualizing federal empowerment of local governments that is not only consistent with the Court's contemporary view of federal structure, but in fact advances the goals the Court is seeking to achieve. The core concerns animating the Court's current move to devolve and decentralize power are forcefully served by enhancing the autonomy of local governments in the constitutional structure. In short, the very values of federalism on which the Court has relied to enhance state sovereignty provide a compelling localist grounding for the particular exercise of national power represented by cooperative localism.

Rights-based approaches to advocacy on behalf of homeless persons have long sought to vindicate important dignitary, liberty, and equality interests, as well as establish entitlements to housing, mental health, substance abuse, and other services. This advocacy has had some success in shaping the systems that define the interaction between homeless persons and the state. Rights paradigms, however, can be undermined by the day-to-day reality of the lives of homeless individuals and families that are often shaped by profound need less for protection from the state than for meaningful support. And entitlement advocacy remains circumscribed by the reality of severely limited resources at all levels of government. Given these constraints, this essay argues that rights at the center of homeless advocacy can serve an additional function. The values underlying core rights asserted on behalf of those without shelter can provide a functional tool for providers of services to homeless individuals and families. Deploying rights in this way would serve less to hone an adversarial relationship between clients and service providers, and more as a set of guiding principles for program design and implementation. This essay accordingly argues that a self-conscious rights advocacy can help shape the systems that support homeless individuals and families, outlining core norms that advocates have asserted on the front lines of fighting for the rights of homeless persons and demonstrating how this is working in practice through examples from recent important developments in the field.