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Published in: Cardozo Law Review, Vol. 27, pp. 1-103, 2005


The idea of an "ownership society" (OS) is not new to American politics or law. It might be called the seventeen year cicada of American domestic policy - emerging once per generation onto the national agenda, generating just a bit of buzz, then receding once again to leave a mass of empty shells and buried eggs behind. Unlike the insects, however, OS proposals seldom have sounded the same notes to everyone's ears. They have been proffered to or on behalf of differing constituencies for differing reasons, and therefore have tended to mean different things to different people. It is tempting to blame precisely this fragmentation and polyvalence both for the general idea's recurrence and for its repeated receding. This Article seeks to bring theoretic and programmatic coherence to the idea of an American OS, in hopes of generating an enduring and endurable version of it. The Article first identifies three political traditions that amount to our self-understandings as a people. An enduring American OS must resonate with those traditions. The Article then synthesizes a unified self-understanding from the three traditions - a coherent set of constitutive ideals that contour what the Article calls an Efficient Equal-Opportunity Republic (EEOR). The EEOR is the template for an endurable American OS. The Article then fleshes out the bare bones of the EEOR. It does so first by detailing how "ownership" must be interpreted and promoted not only in keeping with the broad constraints posed by the EEOR's core values, but in keeping with the narrower constraints posed by ownership psychology and the path-dependence of American law. It does so second by deriving a "Method" of financially engineered ownership-spreading that gives full expression both to the aforementioned core values and to the psychological and legal constraints. The Article concludes with a preview of its sequel, which catalogues and critically examines past OS programs and proposals under the aspect of the theory worked out in the present Article, and elaborates a coherent set of forward-looking ownership-promoting programs informed by the lessons that emerge from that critical encounter.

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Ownership society

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