In January of 2002, President George W. Bush signed a statute his administration optimistically dubbed “No Child Left Behind”(NCLB). In fact, the statute was a re-authorization of the more mundanely named “Elementary and Secondary Education Act of 1965 (ESEA)”, a key pillar of President Lyndon Johnson’s Great Society program. Johnson, who was raised in very modest circumstances, famously declared a “War on Poverty” ; the ESEA, which flowed federal funds to public schools with high concentrations of poor children, was one of Johnson’s legislative centerpieces.
Why are poor people poor? There’s a question lawyers, law students – indeed, many in the U.S. and around the world — could chew on for many hours. The answers, one would assume, are highly complex, and vary substantially by country and over time. In fact, however, American law has shown a remarkable tendency to oscillate between two highly simplistic explanations of poverty, what we might call the “luck hypothesis” and the “work ethic” hypothesis. Under the luck hypothesis, anyone could wind up poor. Those of us who aren’t poor were/are lucky. We had gifts like competent, loving parents, good health, decent schools. Those who are poor, under this hypothesis, have been unlucky. Under the “work ethic” hypothesis, by contrast, the poor are, at least disproportionately if not entirely, individuals who lack self-discipline and good habits. Yes, people are dealt different hands in life, but those who wind up poor didn’t try very hard. They don’t plan, they don’t work hard, they don’t capitalize on what is available to them. Given these competing – and seemingly mutually exclusive – hypotheses about poverty, what makes for sensible social policy?
by Professor Mary O’Connell
Every November, I make my way to Dedham, Massachusetts – which is not on my usual itinerary. There I meet with the judges of the Massachusetts Probate and Family Court as part of the Court’s annual Freedman Retreat. The retreat is a rare opportunity for the judges to leave the courtroom for two days and come together to talk about issues of interest and concern in the ever-changing landscape of family law.
Spending a semester sitting in property law. Sound exciting? Well, do you know who owns your spleen? Do you think you do? Well, hang on to it. When John Moore’s spleen was removed during cancer surgery, cells taken from it were turned into a cell line that earned a lot of money for the University of California. Did Mr. Moore own the cells that had been taken from his body? Nope. Did he get any of the proceeds from the Mo cell line – ironically given his name? None.
How about the rain? What if, being pretty green, you decide that putting out a rain barrel and catching the rain to use it on your garden an eco-friendly way to go. Great idea? Well, stay east of the Mississippi River. Once you venture into the high desert, things get a little dicey. Colorado would be safe. In 2009, the Colorado legislature passed two new laws to make legal what had been illegal since Colorado became a U.S. territory in 1861—collecting rain as it fell from the sky. The laws were needed because under Colorado’s “prior appropriation” water system, every drop of water in the state is owned by someone, and a raindrop was just somebody’s water on its way home. Utah held out longer, but as of 2011, you can take your rain barrel there too. But an Oregon man who built three reservoirs on his land to catch rainwater went to jail last year. He didn’t have a water rights permit from the Oregon Water Resources Department.
“Ownership” may sound like a technical concept – and in some ways it is. And defining and regulating ownership is one of property law’s major tasks. If someone can own it, it’s property. But what is property? The mind-bending part of the property course is that the definition is always changing and law is usually running to keep up with science, technology – and the weather. Before the science developed to grow human cells in self-replicating cell lines, Mr. Moore’s spleen would not exactly have been a prize. And when the earth seemed to be full of fresh water, only deserts – like Oregon and Colorado – treated it as “owned” as it fell from the sky. But who owns the water is likely to be one of the great property debates of the 21st century. Japan, with a shrinking population and substantial fresh water, is selling some of its water rights to China. The United Nations recently warned that by 2015, two-thirds of the earth will be “water stressed”. The wars and ecological disasters that our thirst for petroleum brought us (BP is being tried for gross negligence in the Deepwater Horizon disaster as I write this) may pale in comparison to the coming water wars.
And speaking of petroleum, the receding ice cap at the North Pole is opening access to parts of the sea bottom that have been encased in ice throughout human memory. The U.S., Russia, Canada, Denmark, Norway and Sweden have all made the claim that their territory extends under the sea into the polar region – rich with, of course, petroleum.
Can sensible people of good will make rational plans for allocating the earth’s resources? Can we harness the promises of science without stripping individuals of their rights and their dignity? Ah, well, just another day in property class!