Durable Choice is a book about property law.  This may not be readily apparent from the title, however, author Mark Andrews consistently develops the concept of property as an aspect of the choices we make in our lives with respect not only to real estate and durable goods, but to claims, rights and exclusive interests as well. 

Mr. Andrews is an attorney practicing in Fairbanks, Alaska, where he appears to have become something of an expert on the Native Alaskan law through his work with the Tanana Chiefs Conference, Inc. of Fairbanks, a nonprofit consortium of Athabascan Indian tribes.  Some of this shows through in his writing where he shows how social differences make the tribal view of property different from that of the European / American view.  But that is just an interesting sidelight to what is a small but very comprehensive work on the nature of property law. 

Andrews opens his work by quoting from Shakespeare’s Henry V where King Henry asks whether he may rightfully make a claim to the throne of France.  As we soon see from the commentary on subject, King Henry had his doubts about the English throne as well as the French.  Despite this, he took the legal advice given to him, pressed his claim to France and thus opened another chapter in the 100 Years War.  All of this happened because Henry made a choice, which Andrews states is the starting point of all private property interests. 

But property is not that simple a concept, and so Andrews takes us on an exploration of the social contract, covering such aspects as work, risk and redistribution.  This leads him to Aristotle’s analysis of four causes giving rise to an interest and shortly thereafter we logically find a discussion of the Aristotelian syllogism.  Because this work deals heavily with legal concepts, the discussion of logic provides an excellent grounding in legal analysis and reasoning for the non-attorney reader.  This is combined with a brief discussion of statistics in the context of social rules and when the legal system will allow someone to deviate from the social norm of behavior. 

Andrews also examines the role of human nature and how differing views of property have occurred over time.  He examines Locke, Blackstone, and Bentham, before moving on to American legal analysts Wesley Hohfield, Arthur Corbin, Felix Cohen, and Charles Reich.  He concludes by examining Guido Calabresi, Douglas Melamed and Lawrence Tribe. 

This last section is perhaps the most interesting of the entire work, as it shows how the concept of property has changed in its nature and scope from something inherent in Locke’s “state of nature” and identified largely by its physical nature, to more esoteric concepts such as entitlements and intellectual property.  The discussion of Tribe is quite fascinating, and frightening as well.  Andrews takes some time and effort to show how people seek consistency and reliability in the law to mitigate any risks that they may face in their choices related to property.  Despite this he asserts that Tribe would prefer that legal scholars and judges view the legal environment from the same perspective as a quantum physicist does.  That legal opinions change society over time as much as society may change the law.  Andrews does not ask the question of whether this is good, bad, or otherwise, and perhaps it is just as well, for this question would take him off in a totally different direction. 

Durable Choice is a technical work, written for the non-lawyer, although some lawyers may find it quite interesting and useful.  It is not a simple work, and some readers may find it easier to skim over those parts that they find less useful.  If they do so they may leave some functional holes in their knowledge, but they will have gained much knowledge in the process. 

Anyone who has an interest in the development of the concept of property in the legal environment should own a copy of this work.  It is available from Xlibris.com. 

Steven Laib is a practicing attorney.

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