Cornell Law Review
This Article has two goals. First, I explore some of the descriptive and normative limitations of certain law-and-economics discussions of the ownership and use of land. These market-centered approaches struggle in different ways with features of land that distinguish it from other "commodities." The complexity of land-its intrinsic complexity, but even more importantly the complex ways in which human beings interact with it-undermines the positive claim that owners will focus on a single value, such as market value, in making decisions about their land. Adding to the equation land's "memory," by which I mean the combined impact of the durability of land uses and the stabilizing consequences of human sociality, calls into question the normative assessment that rational landowners are likely to be using their land wisely, or at least more wisely than other modes of decision making might hope to accomplish. These observations do not discredit the judicious use of economic analysis as a tool of land-use policymaking, but they do point toward the need for more sophisticated models of landowner behavior and the benefits of a richer normative theory of property, one that is capable of situating the output of that economic analysis within a larger moral framework. Setting forth the broad outlines of one such theory as it applies to the law of land use is the second goal of this Article. An approach to property rooted in the Aristotelian tradition of virtue ethics, I will argue, is capable of incorporating the valuable insights that have made economic analysis so appealing to land-use theorists without distorting our moral vision or treating economic consequences as the only considerations that ought to matter.
Eduardo Peñalver, "Land Virtues," 94 Cornell Law Review 821 (2009).