Intuitions often play a significant role in shaping debate about legal issues. This is particularly the case when homes and homeownership are involved, because the experience of everyday life gives lawyers and legal scholars a foundation for intuitive judgment. Intuitions, however, can be unreliable and misleading. They therefore provide a shaky basis for legal decisionmaking.

This brief essay, published as part of a special issue on Property and Psychology, begins by suggesting that the legal academy should follow the lead of the Experimental Philosophy movement and actively solicit empirical research on human behavior relevant to legal issues. It then describes a series of legal issues relating to the home that could benefit from this type of research, and concludes by suggesting that researchers interested in the psychology of home seek collaborators within the legal academy to develop legally-informed empirical studies.

Private property is often defended on the basis that it promotes individual freedom. Discussion of this subject has typically taken place in the context of contentious debates over the legitimacy of government interference with private property, especially government regulation of land use and redistributive taxation. Pro-property, anti-interference advocates tend to suggest that there is a strong relationship between property and freedom. Those on the other side of the debate tend to be more skeptical. The political philosopher G.A. Cohen, for example, has asserted that "the familiar idea that private property and freedom are conceptually connected is an ideological illusion."

In this Essay, I argue against both sides of this intractable debate. Property and freedom are inextricably linked, but a strong relationship between property and freedom does not immunize property from government interference. To support these positions, I shift the discussion of property and freedom away from debates about the inviolability of property, and focus instead on the institutional relationship between property and freedom. Accordingly, I focus on two questions that have often been neglected in the heat of the debate over government interference with property: to what degree does the institution of private property protect individual freedom, and to what degree is individual freedom possible without the institution of private property?

Property as an institution promotes individual freedom in three ways: by creating a zone of individual autonomy and privacy; by distributing power; and by providing access to the resources that people need to be free. The discussion of these institutional connections between property and freedom draws out three important substantive points. First, individual freedom depends, in an institutional sense, on private property. Second, because the relationship between property and freedom is complex, different types of property (e.g., land versus money) and different aspects of property ownership (e.g., the ability to exclude others versus the ability to transfer to another owner) promote freedom in different ways. Third, and most importantly, the relationship between property and freedom in this context may be used to support, rather than oppose, arguments for the redistribution of property. Indeed, a strong connection between property and freedom can be maintained without any reference whatsoever to libertarian or other theories that hold that property rights should be immune from state interference.

Using these relationships between property and freedom, I then critique two of John Rawls's positions on property. Rawls asserted that the basic liberties protected by his First Principle of Justice include the right to hold personal property, but not productive property; and that either a property-owning democracy or a liberal socialist regime could comport with his two principles of justice. In my critique of Rawls, I first explain why the concept of freedom embodied by the First Principle of Justice provides a better defense of private property than the inequality allowed by the so-called difference principle in the Second Principle of Justice. I then use the connections between property and freedom discussed earlier in the Essay, and Rawls's own positions on freedom, to argue that Rawls's positions on property are wrong, that the First Principle must include the right to hold productive property, and that therefore only a property-owning democracy would satisfy the requirements of the two principles of justice.

The American law of estates and future interests is tremendously complex. This complexity is unjustifiable because it serves no modern purpose. Many of the distinctions between types of interests in the current system of ownership are vestiges of ancient English feudal concepts and owe their place in the law solely to historical accident. This article develops a proposed model law designed to simplify and modernize the basic property ownership system. The proposals made here differ substantially from prior suggestions for legislative reform, and reflect issues of enactability and retroactivity that previously have been neglected in the literature. The article both builds on and critiques the recently-released preliminary draft of Division VII of the Restatement Third, Property (Wills and Other Donative Transfers), and explains why a model law will be more effective than a Restatement in achieving modernization and reform of the estates and future interests system.

Recent social science research has found that in many scenarios, increases in group size and diversity have a negative impact on cooperation and other prosocial behavior. A related study by the political scientist Robert Putnam has created a firestorm of debate within the past few months about the negative effects of diversity on the social fabric.

This essay addresses a subset of this larger debate. It looks to recent social science research to explore how and why group size and diversity impact cooperation and other prosocial behaviors. It then considers how to take the results of this research into account in designing legal structures, either by placing people into contexts that foster cooperation or by taking affirmative steps to mitigate the negative impacts of increases in group size or diversity. Increases of group size and diversity tend to undercut the informal mechanisms that communities use to encourage cooperation, and in many circumstances these mechanisms can be replaced by legal structures. To illustrate the potential for using the design of legal structures to encourage prosocial behavior, the essay draws on examples including residential community organizations, the management of natural resources, corporate boards, and the private microlending groups organized by the Nobel-Peace-Prize-winning Grameen Bank.