The Backwards Gesture: Historical Narratives in Carol Rose's Property Scholarship
Sharfstein, Daniel J.
I was a student in Carol Rose's property course twelve years ago, and she was the first law professor whose scholarship I sought out and read. Going into my IL spring semester, if I had to guess how I would spend my precious free time, I would not have imagined myself poring over "Crystals and Mud in Property Law" and "The Comedy of the Commons". I had not gone to law school to become an academic--I kept telling myself that I was set on being a prosecutor. But there was something about Carol's class and her scholarship that put me on a different path. Right before law school, when I was a cub reporter for a small daily paper in Southern California, I was told by a more experienced hand that every piece I would ever write-about crime, local politics, the weather, the Rose Parade, even a gathering of basset hound fanciers--was really about land use and property values. Whatever I published, it would be understood and retold by my readers as a story about their communities and about themselves. And deep down, that meant their investment in Craftsman bungalows, Meyer lemon and avocado trees, and patches of grass watered with laundry runoff. I thought I had left that sunny world behind when I moved to New Haven. Carol Rose pulled me back in. So what was it about Carol's approach to property that inspired me to cast aside my plans for a life of gainful employment and community service? Her work on the primacy of storytelling and narrative in property law leaps out as the main suspect. While property as a field of study is classically the province of economic thinking about resource allocation and individual preferences, Carol has by her own admission made it her scholarly project to show the enduring importance of narratives in understanding property. No one, it seems, can escape the spell of a good story. From Hobbes and Locke to the present, the architects of classical property theory as well as some of the most compelling modern economic scholars have resorted to narrative to explain the development of property regimes. It is Carol's insight that they need narrative because classical explanations of human nature cannot account for the origins of property. Without the persuasive power of stories to induce people to act contrary to narrow self-interest, rational actors will not be able to form property regimes, or in Carol's words, "to create a community in which cooperation is possible." Even as they foster utility maximizing, the regimes themselves are cooperative and require something different from participants. As much as property theory depends on predictive models of human behavior, it is rooted in something messier and more immanent. Carol's work keeps our focus on the role in property law of unpredictable narratives and ultimately the push and pull of everyday experience.