This is a wonderful book about the cornerstone of market economies and classical liberal political systems—private property and property rights. And what a fluid, malleable and political cornerstone it is. The concept of property in the United States has changed dramatically over 200 years, and Stuart Banner's lively description makes for excellent economic history. He begins by asking: What is property? How does it originate? What purposes does it serve? What are its outer limits? To answer these questions, he looks closely at the historical emergence of new forms of property in response to technological and cultural changes, shifting views about government regulation, and varying legal doctrines regarding whether property is a natural right or one created by law. Some surprising cases appear in his chronological development of contemporary property institutions. Banner concludes by arguing that the concept of property has always been contested—especially between equity and efficiency objectives and hence has always been in a state of flux. Property is a human (political) institution that exists to serve a broad range of purposes that has varied over time. The process of institutional change in property has occurred through collective action and interest group politics driven by economic and moral or ideological objectives. The property of today is not the same as that of 1912 or 1812, or for that matter 1712. Shifts in property and property rights are almost always controversial because of their distributional implications, even when there have been benefits overall. In some cases those changes in property have not been beneficial in general, but have advantaged well-entrenched constituencies. Banner illustrates these processes with intriguing examples and informative discussions of case, legislative, and administrative law.

Chapter 1 describes how the U.S. kept or modified many English property concepts after independence, but jettisoned others that did not fit circumstances in North America. Gone were inheritable property rights in tithes for clergy drown from land; in noble titles; in public offices; in access to common lands; and in labor—of children, indentured servants, and ultimately, slaves. New forms of property rights emerged, often through adapting English practices to American settings especially to promote economic development. Primogeniture and entail were abolished and tenancy in common was preferred over joint tenancy. Banner emphasizes that these legal changes took place through the political process and that there were winners and losers as ownership patterns and prerogatives were modified.

The subject material moves chronologically so that various aspects of property's development appear and reappear at different places in the volume. Parts of Chapters 2, 4, 6, 7, 10, and 14 address the rise of intellectual property, including patents, copyrights, trademarks, goodwill, trade secrets, reputation, news, data sets, quotations, music, sound, performance, fame, publicity, and expression —all necessary to support and encourage a growing, innovative, competitive economy and pluralistic society that required information flows and creativity. Chapter 10, “Owning Wavelengths,” is particularly intriguing because the outcome seems so counter to general views of American property and because of the people and organizations involved. For those of you who have wondered how the competing cellular phone companies, Verizon and AT&T, could have such spectacularly different coverage areas (shown in red in advertisements), the answer lies in the piecemeal administrative awarding of radio spectrum by license and later by auction by the FCC. But this is not how things began. Ownership of the spectrum started as private property as radio stations proliferated in the 1920s. Although there was potential for overlap and interference with signals, there was no engineering barrier that prevented the bounding of individual claims and ownership of wavelengths. Property claims by broadcasters to frequencies were made through first possession and they could be bought and sold. Opposition to private ownership developed from ideological notions that the spectrum was a public resource, like a flowing river that theoretically could be monopolized or misused by special interests. There were also efforts by incumbents to block new entry. Surprisingly, the chief adversary of private property rights in the spectrum was Herbert Hoover, secretary of commerce, whose department housed the Federal Radio Commission (later the Federal Communications Commission). Hoover has a reputation at least as president as a conservative, pro-market advocate, and his papers are housed in the Hoover Institution at Stanford. Yet, as secretary of commerce he called for a strong government regulatory role in the spectrum that would be facilitated by public ownership with access provided by renewable licenses. According to Hoover and others, the notion of the Public Trust in the spectrum resource was paramount to prevent monopoly and misuse. The notion was made law with the Radio Act of 1927—with the support of established firms. Indeed, the law did not reallocate rights because major broadcasters had the political clout to secure licenses with some content regulation. Licenses were handed out across the country, often to affiliates of the major broadcasters, such as NBC, CBS, and ABC. The rest of the spectrum was withheld for military and other government purposes. Although maximizing regulatory mandates and protecting existing firms, the arrangement has not been effective for efficient management and allocation of the spectrum as it has become immensely more valuable over time with new technology. Leo Herzel in 1951 and Ronald Coase in 1959 criticized government ownership and called for the auctioning of spectrum. Some of it has been, and vast amounts have been collected by the government, but much spectrum remains underutilized or misallocated. This story, although well known in many circles, emphasizes the political nature of property rights institutions and the transactions costs that can impede moving from one form of property to another, even in the presence of large economic and social gains.

Chapters 3, 11, 13, and 14 describe the emergence of property as a “bundle of rights” with various attributes, which are protected by the takings and due process clauses in the Constitution. Settling on just what attributes are included in property; the circumstances under which government can regulate or acquire it; the conditions for and size of compensation necessary; and events that suggest redistribution have all required complex and sometimes conflicting judicial, administrative, and legislative involvement. The American federalism system has allowed for experimentation and rich variation across jurisdictions over time, and the process is continuing. Other Chapters—5, 8, and 12 examine property rights in people, including slavery; new property concepts to support urban density though apartment houses and condominiums; and property and trade in human body parts—blood and organs, as well as new life forms.

Chapter 13 is of special interest to me because of the discussion of the role of property as a tool for protecting the environment. Although the absence of complete property rights creates the gap between private and social net benefits that is the basis for “The Problem of Social Cost” made famous by Ronald Coase in 1960, the use of private property to correct it has not been the first policy response. Faced with the loss of environmental amenities and natural resource stocks policymakers, and indeed, economists have typically turned to regulation or following Pigou, tax policies. In light of their general failure (regulation) or absence (Pigouvian taxes), property rights and environmental markets have become much more common. As Banner points out, this process has not been without criticism, primarily for distributional and moral grounds, rather than due to a lack of effectiveness.

The book is well footnoted with bibliographic references. It is a tremendous addition to the literatures on property and economic history. The arguments outlined and cases presented generate fruitful ideas for new research on the interface between economics and law and institutions in American economic growth. Economic historians ought to leap to the opportunity.