Hills and Schleicher on development vs. stasis in American property law

How the Gentry Won: Property Law's Embrace of Stasis

How the Gentry Won: Property Law’s Embrace of Stasis. Roderick M. Hills Jr. and David Schleicher, Texas Law Review, Volume 104, Issue 4, March 19, 2026. PDF. 65 pages.

Hills and Schleicher describe American property law as differing from British property law in encouraging development rather than stasis, making it easy to buy and sell land, and to borrow against it.

“We used to make shit in this country, build shit.” When people say things like this—and they do frequently—they are generally talking about a decline in manufacturing output or infrastructure investment in America. But one can tell a similar story about American property law. We used to have a system of property law and regulation that encouraged the building of improvements and changes in ownership. Over the past forty‑or‑so years, however, shifts in property law have largely served to slow building and transfers in ownership in the name of preserving the security of investments by incumbent landowners and the stability of communities.

From before the United States became an independent country and throughout most of our history, American property laws and regulations were animated by values that stood in sharp contrast with the British law from which they emerged.

• American property law was more crassly commercial, encouraging mortgages and foreclosure, and barring tools designed to keep estates in families for generations such as the fee tail.

• Information about property ownership was made public on registries, bringing down information costs for even distant purchasers.

• From the 1811 Commissioners’ Plan to create a street grid in New York City to the Rectangular Survey System laying out property demarcation for much of the country, aggressive policies were used to produce straight and right-angled property boundaries, making ownership claims and property transactions easy.

• Government officials using eminent domain to build railroads offset the amount of compensation for condemned property by the amount that neighboring property gained in value, encouraging infrastructural development.

• Property taxes based on assessments of market value encouraged owners to put property to its highest and best use.

From the Preemption Act of 1841 and the Homestead Act of 1862 all the way through the creation of the Federal Housing Administration, the goal of getting land in the hands of the largest number of people who would use the land actively underlay much of what was distinctive about American property law and regulation. Across doctrines and policies, American property law prized growth, alienability in a liquid national market, changes in uses, and putting real property in the hands of active users.

They summarize their main arguments as follows:

First, one useful way to understand real property law and regulation is that most conflicts are fought between two broad opposing clusters of values or beliefs about what is economically useful and troublesome about systems of private property.

• “Developmental” arguments focus on how property law can facilitate or even mandate development, encourage liquid markets, allow changes in uses, mitigate monopoly power exercised by large landholders, and foster cosmopolitanism.

• These arguments stand in contrast to values and beliefs that we dub “stasis” arguments. This valence in real property law and regulation seeks to protect existing landowners from externalities and nuisances and preserve their ability to determine the future uses of their properties; prizes local preferences over fostering national and international markets; and is conservative or conservationist in its attitude towards changes in land use or ownership.

A system of private property will necessarily protect the status quo to some extent, as existing owners get to decide how land is used and who gets it next, but it will also encourage changes in ownership and uses in service of greater economic activity. In contested cases, though, the policy question is often whether a thumb should be put on the scale in one direction or another, towards development or towards stasis.

Second, American property law and regulation were historically quite different from British law in that American policymakers and courts regularly embraced developmental arguments. Deviations from our inherited English legal traditions largely focused on furthering alienability, supporting ownership of land by active users, and reducing protections for landholders from creditors. American property law reflected that, as economist Edward Glaeser put it, we were a “nation of real estate speculators,” interested in liquid markets and growth. Notably, the fast economic growth of the period from 1870 to 1970 was built partially on the back of the bias towards development in our property law.

Third, starting in the 1970s and 1980s, American real property law and regulation moved sharply in the direction of “stasis.” This has been most clearly established in the field of land use regulation. There is a broad academic consensus that changes in zoning regulations, and related tools such as historic preservation, building codes, and subdivision requirements, started becoming much stricter in this period. There is also a broad consensus that these regulations have excessively limited new construction in many American metropolitan areas, creating housing crises and inhibiting economic growth to a very substantial degree, without providing sufficient offsetting benefits. Supporters of zoning restrictions speak clearly in the language of stasis: They worry about externalities, very broadly defined, oppose land use changes that would threaten “neighborhood character,” and favor local, or even hyper-local, control. But the same basic trend exists across the broader field of real property law and regulation. This Article will focus on the law of covenants, easements, forms of ownership, and property taxes. Each area has either been reformed to tame creative destruction in property markets or not reformed to meet clear economic changes.

Fourth, the post-1970s changes in property law have been normatively unattractive. They have reduced economic growth and increased economic inequality, without providing sufficient benefits.

The dichotomy between “development” and “stasis” is certainly not the only way of understanding property law, but we believe it is an especially fruitful framework. In most popular discussions of law and policy, the distinction between stasis and development is ignored in favor of contrasts between preferences for regulations seeking political and economic equality versus preferences for market ordering. Whatever the broader merits of thinking about public policy in left–right terms may be, doing so fails to capture the ideological direction property regulation has taken since the 1970s.

Importantly, neither development nor stasis is reliably right‑ or left‑wing.

• Pro‑development attitudes can take a right-wing form, in favor of liquid markets and creative destruction, or a left-wing one, focusing on efforts to use state power to disrupt the entrenched power of the landed gentry.

• Pro‑stasis attitudes can too, whether they focus on right-wing values such as conservatism and allowing property owners unfettered control over future uses, or left-wing ones such as local participatory democracy, controlling externalities, and conservation.