Some scholars see in this agnostic quality a constitutional mandate for governmental secularism; indeed, they may appeal directly to the agnostic quality of the Constitution as a way of avoiding the labyrinthine jurisprudence of the First Amendment’s religion clauses.  But is the appeal well taken?  More generally, what are the implications, if any, of the Constitution’s agnosticism for the relations among government, religion, and citizenship in this country?

I.
Irrelevant Agnosticism?

Perhaps the most obvious answer—surely the simplest, anyway—would assert that the agnosticism of the Constitution has no implications at all for how governments in this country should relate to religion.  Why should silence, on any subject, have any particular implications?  There are many things, after all, that the Constitution says nothing about.  Hunting, for instance.  Or space exploration.  Nothing much is thought to follow from this silence.  No one argues that because the Constitution doesn’t talk about hunting, governments in this country are forbidden to notice or regulate the activity.  Instead, we assume that if a particular government (local, state, or national) would otherwise have the power to regulate hunting, or to prohibit it, or to subsidize it, then that government may use its judgment and exercise its power as it thinks best.  The Constitution’s silence neither compels nor constrains.

The same goes for space exploration—and, arguably, for religion.  The Constitution contains provisions, of course, that are thought to constrain American governments in their dealings with religion—most obviously the First Amendment.  But the Constitution’s overall agnostic quality would in this view simply be irrelevant to the question of what governments can do to, for, with, or about religion.

This is, as I said, the simplest answer to the question of the implications of the Constitution’s agnosticism.  There are, however, at least two reasons to be skeptical of this answer.

First, the Constitution’s original and continuing silence on religion seems to have been a deliberate decision made in purposeful contravention both of the wishes of many Americans (both in the founding period and subsequent to it) and of many of the relevant models—foundational documents like the Declaration of Independence, the Articles of Confederation, and the constitutions of nearly every state (and some foreign countries, such as Canada) that did or do explicitly pay their respects to deity.  So it would seem that the Constitution’s silence on this subject is more portentous than its silence on many others.

Second, it seems at least possible that the Constitution’s silence on religion ought to mean something, in the sense that this purposeful silence might usefully serve to ground or inform some valuable constitutional strategy for dealing with the challenges of community and citizenship in a religiously pluralistic society.  But what might that strategy be?  And how might it be served by the Constitution’s agnosticism?

II.
Mandatory Public Secularism?

In modern times, following the demise of Christendom and the failure of Westphalia’s cuius regio eius religio² principle as a device for dealing with the religious fragmentation that followed the Protestant Reformation, a favorite strategy for dealing with religion has been public secularism.  Practical and theoretical variations on the strategy are legion, of course, but the basic idea is that religion should be protected in but also confined to the private domain, while government should operate in the realm of the secular.  In this way, citizens can continue to profess and practice their various religions without persecution or impediment.  And government, for its part, can perform the worldly work that is proper to it while remaining serenely “neutral” in matters of religion.

“Reasonable” and civically responsible people, it is said, ought to be content with this sort of arrangement.  In reality, as we know, some people aren’t happy with it.  But shouldn’t they be?  All that is being asked is that they believe their creeds and live their religions, and that they refrain from imposing these views on others.  What could be more reasonable?

For proponents of this strategy, the agnosticism of the American Constitution may seem a godsend.  Thus, especially of late, some scholars and advocates have emphasized the Constitution’s agnostic or “godless” quality as a basis for requiring that American governments generally confine themselves to the realm of the “secular.”³ Usually, of course, the requirement of public secularism is derived more specifically from the First Amendment’s Establishment Clause.  But for those who are scrupulous about original or intended meaning, grave difficulties attend this derivation (difficulties which we need not worry about here).  So it would be convenient for proponents of mandatory secular government to find a constitutional source or argument that did not depend on that vexed textual provision.  The Constitution’s general agnosticism presents an inviting possibility—one that advocates of public secularism increasingly seem inclined to use.

But there are also problems with using the Constitution in this way.  Simply as a matter of construction and logic, the argument is problematic:  “The Constitution is agnostic (or secular); therefore, governments operating under the Constitution must be agnostic (or secular).”  The proposition seems a bald non sequitur.  The Constitution basically establishes a structure of government for the United States; it does not spell out any particular substantive ideology or governing philosophy that government(s) either must or must not follow.

Consider:  One can imagine a church whose articles of incorporation and bylaws are written in purely secular legal terms.  It would hardly follow from the fact of a secular constitution that the church itself is prohibited from being religious.  In a similar way, the United States Constitution is basically a set of articles of incorporation or imposed bylaws for American governments.  From the secular character of those provisions no general requirement of public secularity need necessarily follow.

So the “secular government” conclusion seems dubious as a matter of straightforward constitutional construction.  But it is dubious as well as a strategy for dealing with religious pluralism.  Its difficulties were perhaps less apparent a generation or so ago, when most thinkers foresaw a “secular” future in which religious belief and practice were destined to dwindle. At that time, reading a requirement of public secularism into the Constitution might have been viewed as just a way of hurrying the nation along the path it was preordained to follow anyway—an acceleration that constitutional theorists or judges have sometimes thought to be a good thing (sort of like AP classes in high schools, perhaps?).  As it becomes increasingly apparent that secularization (in the sense of a withering away of religion, at least) is not imminent after all, however, the flaws in the secularism strategy become more conspicuous.

The central problem, I think, is that it becomes increasingly obvious that the “private religion/secular government” prescription is not, as its proponents might claim, somehow outside or above the cultural fray—independent of and neutral among the various competing religious or secular orthodoxies or “comprehensive doctrines.”  Rather, the public secularism position is, while perhaps not a full-fledged “comprehensive doctrine,” still a political orthodoxy of its own—one that is consistent with some of the competing orthodoxies and incompatible with others.  Its pretensions to “neutrality” are spurious. As a possible basis for community, it is one candidate among others.  To be sure, it might be the best candidate.  But then again, it might not.

The prescription of public secularism as a basis for political community compels reflection on the problematic relationship between community and belief.   Start with the obvious:  As Toqueville observed, for a “community” to flourish, there need to be common bonds that bring citizens into a union.  These bonds can no doubt be of various sorts—economic, historical, linguistic, and so forth.  They can even be fictional. Insofar as humans are believing creatures, however, a community will necessarily adopt some stance (even if one of detached unconcern) toward the various beliefs people hold dear.

Moreover, in their consequences for community, beliefs have a sort of double-edged character or potential.  If a community associates itself with beliefs that citizens hold, it can elicit their allegiance.  But insofar as it rejects their beliefs, or associates itself with beliefs they reject, it can cause them to become disaffected or alienated.  In a pluralistic society, obviously, this dual potential is particularly challenging because any beliefs the community might affirm in order to gain the loyalty of some citizens are likely to produce alienation in others.

So, what to do?  One strategy, preferred and practiced for centuries, essentially tries to eliminate divisive creedal differences by inducing or coercing citizens to share a common religion.  Due to the failure of that strategy in post-Protestant times, contemporary communities adopt other measures.  In part, they may attempt to unite citizens on bases other than belief—commercial interests, for example.  But in view of the continuing centrality of believing to humans, communities nonetheless have to find some way of making their peace with belief.  How to do that?

In its essence, liberalism (of which modern public secularism is only one version) tries to identify what is taken to be a “second-order” set of political beliefs—in equality or liberty or human rights—around which citizens hopefully can unite, while leaving other first-order beliefs—in specific religious or antireligious doctrines, perhaps—to the private sphere.  While the strategy arguably has achieved considerable success, it also provokes serious conflicts, as we see in the nation today.

The basic difficulty, I think, is not so much that some citizens reject the liberal division of beliefs into first-order/private and second-order/communal categories.  For rhetorical purposes, advocates often accuse their opponents of doing that.  My sense, though, is that nearly all Americans accept the distinction in some form—that hardly anyone wants the government to endorse (or condemn) infant baptism or the Nicean Creed.  We are all (or nearly all) liberals now, in this country anyway, in the core sense.  But Americans differ considerably about how and where to draw the line between what is private and what is properly public.  And many doubt that “secularism” is the proper device for drawing that line.

For example, and more specifically, it seems that some Americans—millions, perhaps—believe that, as George Washington declared, “it is the duty of all nations” (notice that the duty applies to nations, not just to private individuals) “to acknowledge the providence of Almighty God, to obey His will, to be grateful for His benefits, and humbly to implore His protection and favor . . . .”⁴ They might even find themselves unable to give their full allegiance to a political community that refused to honor that duty.  Hence the national motto, “In God We Trust,” or the indignation that arises when, for example, a court orders the words “under God” to be stricken from the Pledge of Allegiance.

But other Americans, obviously, object to such expressions.  The disagreement between the two camps pervades and motivates many of the conflicts that we describe as the “culture wars.”  It is a daunting problem—the more so because we ought to be able to see, by now, that “public secularism” is not a neutral arbiter among those conflicts.  It is, rather, a banner for one camp of combatants.

III.
The Strategy of “ConstitutionalAgnosticism”

At this point, we may be able to appreciate the possibility of a different strategy for maintaining pluralistic community—one that we might simply call “constitutional agnosticism.”

This strategy grows out of the crucial fact that not everything that is affirmed by an agent—by a person, or a community—is constitutive.  This distinction, as well as the possibilities it opens up, can perhaps best be appreciated on a personal level.  We understand that a person is not identical to or constituted by his or her opinions—and a good thing, too, because otherwise, if a person held an opinion we found objectionable or obnoxious, we might have to regard the person himself as objectionable or obnoxious.  Instead we are often able to draw a distinction between the man and his beliefs, thinking, for example, “I love and respect John as a person, even though I find his religious and political views absurd.”

No doubt there are beliefs so central to a person that they become at least partially constitutive:  If the Pope were to repudiate Catholicism, or if Daniel Dennett were to become a fundamentalist Christian, we might think that these worthies were just no longer the same persons they used to be.  For the most part, though, we can distinguish between a person and his or her beliefs.  This distinction allows us to treat persons with respect even though we utterly reject their beliefs.

The same possibility is available, I suggest, with respect to communities.  A community can affirm or associate itself with various ideas or beliefs without these becoming fundamentally constitutive of the community.  As a result, it is possible to respect or profess loyalty to a community even while disagreeing with some or many of the beliefs the community, through its government(s), affirms.  Governments can express beliefs in accordance with democratic demands, thereby eliciting or solidifying the allegiance of citizens who hold such beliefs; dissenters, while less than happy with such expressions, can take comfort in the fact that the objectionable expressions are not constitutive of the community.

They can do this, at least, so long as dissenters can look to something beyond such expressions that is constitutive and that does not affirm the objectionable beliefs.  And here the agnostic Constitution serves a crucial function.  The question of what “constitutes” a community is complex, to be sure.  Still, it seems safe to say that the American Constitution is at least part of what “constitutes” the American political community—as supreme law and articles of incorporation but also as venerated symbol.  So long as the Constitution itself remains steadfastly agnostic, it will always be true that whatever expressions various governments at the local, state, or national levels may make, these are not ultimately “constitutive” of the political community.  Hence, a citizen may reject the expressions without rejecting the community itself.

So suppose, for example, that something like the national motto (“In God We Trust”) were adopted at every level of government—by Congress, by every state, and by every city and county in the land.  Citizens who are atheists would—do?—find this situation galling:  There would be no political entity in the country to which they might travel that would not affirm a belief to which they object.  Even in this lamentable (to them) situation, however, they would still be able to look to a more foundational political reality—the Constitution—in which such an objectionable belief is deliberately and conspicuously not affirmed.  And because that document and symbol—that agnostic document and symbol—is accepted as the community’s supreme and constitutive law, they could take consolation in the observation that the political community itself is not constituted by a commitment they reject.

This is not to say, of course, that such citizens will find this situation ideal—far from it.  Nor, for that matter, will the situation be ideal for more aggressively devout citizens who think that the community should not only associate itself with belief in God, but should constitute itself upon that commitment.  Just as atheists or agnostics might prefer a constitution that is not only itself agnostic but that prescribes agnosticism at every level of government, more devout citizens may embrace the view, energetically professed by some at the founding, in favor of including theistic language in the Constitution, as the Articles of Confederation had done.  And so they may support the sort of proposal that has periodically arisen in American history to amend the constitutional text by adding religious affirmations.

To alter the Constitution in either of these ways (or to so interpret it, as modern “no endorsement” jurisprudence episodically does), however, would subvert  the community-maintaining possibilities that the agnostic Constitution affords.

Conclusion

It is important to acknowledge that we have an agnostic Constitution, but equally important to recognize that we have an agnostic Constitution.  It is the Constitution that is agnostic, in other words, not politics or government.  Indeed, it is precisely the Constitution’s agnosticism that permits governments, at different levels and in different ways, to sponsor the sorts of religious expression that American governments have traditionally engaged in and that may well be important in securing what Lincoln called the “attachment” of citizens, while not making such affirmation constitutive of the political community.

In this way, the Constitution makes a valuable contribution to the project of maintaining community in a pluralistic world.  That contribution is not a panacea; it does not resolve the various conflicting views that are always a potential threat to political unity, but rather supports a strategy for negotiating with and among them.  Insofar as it is agnostic, the Constitution does not dictate any particular content to our civic creeds or affirmations.  It permits civic religion of the sort reflected in the national motto and the Pledge but does not command it—just as it permits but does not command public secularism.

Supplying the more specific substantive content of our public orthodoxies thus remains a perpetual project.  No doubt the content of our orthodoxies has varied—and will vary—from place to place and time to time.  This unsettled situation may leave theorists feeling queasy.  But it is precisely this open-endedness, I suggest, that makes the agnostic Constitution such an important contribution to the challenge of maintaining e pluribus unum.

Acknowledgments:

Copyright © 2009 New York University Law Review.

Steven D. Smith is Warren Distinguished Professor of Law at University of San Diego Law Review.

This Legal Workshop Editorial is based on the following Essay:   Steven D. Smith, Our Agnostic Constitution, 83 N.Y.U. L. REV. 120 (2008).

In “The Social Obligation Norm in American Property Law,” I do not argue against any of these grand claims so much as I ignore them.  My concerns lay elsewhere. I agree with Fennell that there is a major gap in current property theory literature, but it is not the one she identifies.  The gap is the failure, with some notable exceptions at both ends of the political spectrum,⁵ to provide any explicit and sustained analysis of the obligations that property owners owe to members of their communities and the normative foundations of those social obligations.  The property rules-liability rules literature does not address this topic except elliptically.  Nor does the information-costs model so elegantly spun out by Smith and Merrill confront this fundamental problem.

The thesis of the article is basically this: Human beings are inherently dependent on others to flourish as human beings.  This dependence creates for each of us an obligation, certainly moral and at times legal, to support, in ways that are appropriate to us and to the extent that it is appropriate to us, those social networks and social structures that facilitate the development of those human capabilities that make human flourishing possible.

The fundamental value grounding this social obligation thesis is human flourishing.  Human flourishing is the basis for property rights.  Life in community with others and access to certain kinds of resources are requisites to human flourishing.  Property rights and their correlative obligations are cognizable as social goods, worthy of vindication by the state, only insofar as they are consistent with community and human flourishing more generally.  In the interest of human flourishing, the state affords legal recognition to asserted claims to resources as legal entitlements.  Accordingly, the state does not take away when it abstains from legally vindicating asserted claims to resources when such claims are inconsistent with human flourishing or with community itself.  In such cases, the community merely does not give.  For the community, acting through the state’s laws, is what transforms pre-legal claims into legally recognized property rights in the first place.  That which is socially cognizable as property is only that form of access to resources that is consistent with human flourishing and community itself.  The social obligation norm, then, is, in effect, the law’s recognition of this straightforward conceptual entailment of the way the legal system justifies the institution of private property itself.  Another way of putting this point is to say that the very factor that makes the institution of private property a social good is also the very factor that renders its limits, i.e., human flourishing.

Human flourishing requires that individuals develop what Amartya Sen and, following Sen, Martha Nussbaum, call certain “capabilities.”  Capability, as they use the term, refers to the freedom or ability to choose to function or act in certain ways (although not necessarily to act in fact in those ways).  Human flourishing measured by what a person is able to do, not by what she has or even necessarily whether the satisfaction of her subjective preferences has been maximized.

There are bound to be disagreements about just what capabilities are essential to living a well-lived life, that is, a life worthy of human dignity.  Four such capabilities seem (relatively) uncontroversial to me.  These are: (1) life, including certain subsidiary values such health; (2) freedom, understood to include the freedom to make deliberate choices among alternative life horizons; (3) practical reasoning, that is, reasoning aimed at future action; and (4) sociability, that is, the ability to get along with others, to see their point of view, to have compassion, and to care about the well-being of others.

Individuals cannot acquire these capabilities or secure the resources to acquire them by themselves.  This is because the physical process of human development mandates our dependence on others for a great deal of the time during which we are cultivating the necessary capacities.  Even as human beings value and strive for autonomy, dependency and interdependency are inherent aspects of the human condition.  The idea that one sometimes takes away from scholarly discussions of individual autonomy is that the self-reliant moral agent springs fully formed into the world from birth and continues until death.  Quite the opposite is true.  From cradle to grave and at all points in between, we are dependent on others for the development of those capabilities without which the concept of autonomous moral agency would be meaningless.

Communities, of all sorts, including the state, are the mediating vehicles through which individuals acquire these essential human capabilities.  As rational autonomous agents, humans never cease to operate within and depend upon the matrices of the many communities in which they find themselves in association.  The communities in which people find themselves play crucial roles in the formation of their preferences, the extent of their expectations, and the scope of their aspirations.

Because the capabilities are essential to what it means to flourish in a distinctively human way, their development is an objective human good, something that we ought (insofar as we accept these particular capabilities as intrinsically valuable) to promote as a good in and of itself.  Every person is equally entitled, as a matter of human dignity, to flourish.  This being so, then every person must be equally entitled to those things essential for human flourishing, i.e., the capabilities that are the foundation of flourishing and the material resources required to nurture those capabilities.  In the absence of these capabilities and supporting resources, recognition of the entitlement to flourish is simply an empty gesture.  But not every society will be equally conducive to human flourishing.  The cultivation of the capabilities necessary for flourishing depends upon social matrices, and the condition of those matrices varies among societies, sometimes quite widely.  A society that fosters those capabilities that are necessary for human flourishing is morally superior to one that is either indifferent or (even worse) hostile to their manifestation.

If human capacities such as survival (understood to include physical health), the ability to engage in practical reasoning, and to make reasoned decisions about how to live our lives are components of the well-lived life, then surely we are all obligated to support and nurture the social structures without which those human capabilities cannot be developed.  Consequently, viewed from the standpoint of the capabilities necessary for human flourishing, how we participate in political and social communities cannot just be an expression of our preexisting autonomy; it cannot be solely a volitional act committed for instrumental reasons such as preference satisfaction.  Rather, it is an objectively grounded obligation rooted in our recognition of the value of the capabilities that are necessary for the well-lived life.  In short, then, we owe because we are dependent and because we are members. 

This obligation is certainly moral in character, but it is also a legal obligation.  I do not suggest that the moral and legal obligations are identical, but I do suggest that the state, as one of the communities to which we belong and upon which we are dependent for supporting the social systems and structures that develop the essential human capabilities, is entitled to make certain demands on the property of its members.⁶ As even some of the most stringent of property rights libertarians have acknowledged,⁷ the extreme need of some in the community trumps the property rights other people hold over their surplus resources.

From the perspective of the obligation to support the social systems and structures that foster human flourishing, the state is justified in demanding, either by way of direct redistributive measures or regulatory use restrictions, that property owners contribute in ways that are appropriate to them the resources necessary for the provision of life, including health, freedom, practical reasoning, including education, and sociability.  In short, if we accept the existence of an obligation to foster the capabilities necessary for human flourishing, and if we understand that obligation as extending to an obligation to share property, at least in surplus resources, in order to enhance the abilities of others to flourish, then it follows that, in the predictable absence of adequate voluntary transfers, the state should be empowered and may even be obligated to step in to compel the wealthy to share their surplus with the poor so that the latter can develop the necessary capabilities.

None of this is meant to suggest that the state’s power, even as it touches on the facilitation of the capabilities we are discussing, is unbounded.  The limits to the state’s proper domain are supplied by the same principles that justify its action: the demands generated by the capabilities that facilitate human flourishing—freedom, practical rationality, and sociality, among others.  Another way of putting the point is that there are limits to state power that are intrinsic to the social obligation norm itself.  For example, autonomy interests will limit the social obligation norm when there are no equivalently weighty countervailing interests.  The well-known case of Jacque v. Steenberg Homes, Inc.⁸ illustrates this limitation.  In that case, homeowners, Lois and Harvey Jacque, sued Steenberg Homes for damages for intentional trespass to the Jacque’s land.  Steenberg delivered a mobile home by plowing a path across the Jacques’ snow-covered field despite strenuous protests from the Jacques.  Although other means of accessing the delivery location were available, Steenberg used the path across the Jacques’ land because that was the easiest route for him.  The jury awarded the Jacques $1 in nominal damages and $100,000 in punitive damages.  On appeal, the Wisconsin Supreme Court held that when a jury awards nominal damages for intentional trespass, punitive damages may also be awarded.

The Jacques had strong capability-related reasons for excluding Steenberg Homes.  The most important of these interests are the Jacques’ autonomy and privacy.  The common law historically, and properly, attached great weight to the interests of homeowners in protecting their privacy and associational autonomy by recognizing a robust right of homeowners to exclude the public from entering upon their property without permission.  Although this right has long been subject to certain limited exceptions, such as the privilege of firefighters to enter for purposes of protecting the home, the right to exclude has generally been strongest with respect to the home.  From the perspective of social obligation theory, with its focus on human capabilities necessary for the well-lived life, this emphasis on privacy of the home makes good sense.  The home is the central locus for developing and experiencing all, or nearly so, of the capabilities necessary for human flourishing.    

Another important limit on state power is the principle of subsidiarity.  This is the notion that the state ought not arrogate to itself functions that can be performed just as well, if not better, by smaller, more intimate communities.

Traces of an implicit social-obligation norm, one that is informed by a concern for human flourishing, are scattered throughout American property law.  Several of these are evident in more recent doctrinal developments.  An obvious example concerns public access to beaches.  Courts in a few recent cases have strikingly expanded the scope of the public’s right to access privately owned beaches.⁹ Relying on the public trust doctrine, they have seen fit to permit members of the public to have access to privately owned dry-sand portions of the beach for recreational purposes under certain conditions.

This doctrinal development, although certainly altering the traditional common-law rule on the right to exclude, is both explicable and justifiable in terms of the human flourishing-based social obligation theory.  Recreation is an important aspect of health, which itself is a vital dimension of the capability of life.  Providing all persons, including (perhaps one should say especially) poor people, with reasonable access to basic modes of recreation and relaxation would materially contribute to the goal of being capable of living lives worth living.  Recreation also supports sociability as a good.  Sociability encompasses subsidiary goods such as friendship and social participation.  Indeed, affiliation may explain, or partly explain, many of the circumstances in which courts have recognized some version of a reasonable access rule that limits the common-law right to exclude.

Of course, the beach owner has legitimate capability interests at stake as well.  This is especially true if the owner lives on the parcel where the affected beach is located.  Under those circumstances, the case may begin more closely to resemble Jacque v. Steenberg Homes, which I previously said was correctly decided from the perspective of the social obligation theory.  In such circumstances, the owner’s autonomy and privacy interests weigh heavily in the capability calculus.  As I previously indicated, the home is the central locus for developing and experiencing all, or nearly so, of the capabilities necessary for human flourishing, so if the beach is indeed the site of the beach owner’s home, she will have a strong case for excluding members of the public.  The “reasonable access” standard adopted in the New Jersey cases might permit the court to enjoin the public from using the owner’s dry-sand portion of the beach in order to accommodate her capability interests.  Or it might adopt a more granular approach to regulating the public’s exercise of its access right.  Britain’s recently enacted “right to roam” statute¹⁰ might serve as something of a model for such an approach.  This statutory jus spatiandi, which extends over open land, private as well as public, throughout Great Britain, is subject to all manner of reasonable behavior restrictions that are designed to protect the owner’s privacy and autonomy interests.  The public right of access to privately owned beaches might be cabined in a similar fashion and for the same purpose under the social obligation theory.

Professor Joseph Singer has observed, “Owners have obligations; they have always had obligations.  We can argue about what those obligations should be, but no one can seriously argue that they should not exist.”¹¹ He is right.  It is high time that property scholars explicitly debate questions concerning the scope and foundations of the obligations that property owners owe to their communities.  I’ve argued that property is about more than individual freedom or cost-minimization.  It is also about human flourishing, which cannot be reduced to cost terms, and supporting the communities that enable us to live well-lived lives.  It is to those ends that the social obligations of ownership exist.  Other property analysts will surely disagree.  Fine.  But let’s get the debate going, explicitly and rigorously.
 

Acknowledgments:

Copyright © 2009 Cornell Law Review.

Gregory S. Alexander is A. Robert Noll Professor of Law, Cornell University Law School.

This Editorial is based on the following full-length Article:   Gregory S. Alexander, The Social-Obligation Norm in American Property Law, 94 CORNELL L. REV. 745 (2009). Click Here for the Full Version