March 2009 Vol. 107 No. 5 THE REVIEW

Property and Relative Status

Nestor M. Davidson

Property does many things—it incentivizes productive activity, facilitates exchange, forms an integral part of individual identity, and shapes communities. But property does something equally fundamental: it communicates. And perhaps the most ubiquitous and important messages that property communicates have to do with relative status, with the material world defining and reinforcing a variety of economic, social, and cultural hierarchies.

This status-signaling function of property—with property serving as an important locus for symbolic meaning through which people compare themselves to others—complicates premises underlying central discourses in contemporary property theory. In particular, status signaling can skew property’s incentive and allocative benefits, leading people to over-invest in status-enhancing property and undermining welfare gains associated with trades around property. Similarly, status signaling risks warping the link between property and personhood, investing that connection with a potentially dysfunctional regard for the property of others. And status signaling is magnified by and can undermine property’s communitarian links.

From a doctrinal perspective, ground-level property law intersects with the problem of relative status across an array of areas of intellectual property, real property, and personal property. At times law gives formal sanction to property’s hierarchical signaling and at times it tempers this tendency, breaking up fixed hierarchies. Sensitivity to these dynamics holds important lessons for both the ongoing development of property law and for the continuing interdisciplinary exploration of this core aspect of property.

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