American Property: A History of How, Why, and What We Own (review)

American Property asks difficult and important questions like "What exactly is property? Is it a natural right or one created by law? Which of its attributes are essential and which are subject to alteration to advance some public goal?" (p. 3). Law professor Stuart Banner provides an answer that most historians will appreciate: it depends on the time, place, and context. Banner's goal is to elucidate those intricacies in an interesting but astute and scholarly manner. He succeeds in doing so admirably. The book is not, however, a comprehensive survey of the history of property in America as it mostly focuses on legal practice rather than legal thought.

In chapter one, Banner describes the legal revolution that in the first decades of the nation swept away many problematic property concepts inherited from Britain. Most importantly, American land titles lost all remaining feudal and aristocratic elements and became, in the words of a Connecticut judge, "free, clear, and absolute" (p. 5). Many property rights known in the Mother Country, from the right to appoint a minister to a church to the right of occupying a lucrative government office, disappeared. Property claims on laborers (indentured servants and slaves) also faded over time.

Intellectual property, legal rights in products of the mind, is taken up in chapter two. Before the Civil War, "intellectual property" was a widely employed phrase that referred primarily to patents and copyrights. Both forms of limited monopoly were well known in Britain, but after independence they were rapidly adapted to American circumstances. Patents were relatively cheap and hence numerous and could be assigned to others as easily as tangible or financial property could be. Over time, copyrights encompassed more forms of expression (such as musical compositions, photographs, paintings), a wider group of creators (eventually including foreigners), and also included creating derivative works as well as copying originals. Although their use was common in Europe and America (George Washington for Mount Vernon flour), trademarks were protected at first only by common-law strictures against fraud. By the middle of the nineteenth century, however, states began to ban counterfeit trademarks and courts began to recognize trademarks as valuable business property, not just as signals to consumers. Recognition of property rights in goodwill and trade secrets soon followed. By the late twentieth century, intellectual property rights were worth billions of dollars to most large corporations.

In chapters three and five, Banner deftly describes why and how property came to be seen as a "bundle of rights" rather than things and then was weakened by being recharacterized as power relationships between people. The other chapters are authoritative but not exhaustive chronological narratives of the evolution of property rights in news (including stock quotations), sound and performance, privacy and fame, condominiums, freedom from negative externalities (zoning), wavelengths, government transfers and employment, our own bodies (including blood, gametes, and organs), pollution emission, and digital information and programming.

As Banner admits, many worthy subjects remain unexplored. Thankfully, most of the omissions stem from the author's research interests rather than his confusion or ignorance. Nevertheless, readers familiar with Banner's earlier work may wonder why he chose to ignore ground rents and other types of mortgages as well as the development of the modern corporate form. All told, however, this is an important and engaging book that deserves a wide readership.