In tort litigation, the plaintiff compares her current situation to the reality she would have enjoyed if an injury had not befallen her. She then asks a court to provide the remedy necessary to get as close as possible to that “benchmark reality.” Property disputes often lack such clarity. Unlike a tort conflict, where the plaintiff was whole prior to the defendant’s act, or a contract conflict, where she would have been whole had the defendant honored their agreement, in a property claim, the benchmark reality itself can be a subject of strenuous dispute. Parties offer competing visions of the “original,” “benchmark reality.” In his article, Professor Lior Jacob Strahilevitz challenges legal scholars to apply findings from economics that show that while some people want to have more, others merely want to have more than others. The behavioral findings Professor Strahilevitz showcases should not have been ignored for so long. Nonetheless, I do not believe that reliance on these behavioral economics findings can ease the tension inherent in making property’s tough value calls. Property cases usually involve two parties that define their arguments in relation to competing benchmark realities. Thus, the court must decide whose benchmark reality is legally cognizable. That decision—the crafting of property’s perspective—cannot be rooted in formalist abstractions or solely in certain phenomena observed by social sciences. Property debates can only be solved through careful considerations of public policy.
Volume 161 Issue 1 2013 Response