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Professors Marc L. Roark and Lorna Fox O’Mahony’s article, Comparative Property Law and the Pandemic succeeds in bringing property theory and vulnerability theory into conversation and does so in a way that is likely to make vulnerability theory more palatable for property scholars.

Early on, Roark and Fox O’Mahony introduce readers to vulnerability theory. The basic idea of vulnerability theory is that vulnerability is an inherent part of the human condition and that the state should be active in providing people the tools they need to be resilient.

The theory is the brainchild of Professor Martha Fineman. Emory University School of Law’s vulnerability theory project, led by Fineman, regularly hosts or helps organize vulnerability-themed conferences around the world. Although Roark and Fox O’Mahony do not focus on this, by insisting on the universality of vulnerability and trying to break from of labels such as victim and oppressor, vulnerability theory is somewhat at odds with or at least awkwardly positioned next to race or identity-centered theories of the law and of history.

Comparative Property Law and the Pandemic deals with this by focusing less on vulnerability and more on its corollary, resilience. It is a smart move, allowing the authors to not get bogged down in defending vulnerability theory’s claim of universality and instead focus on the details of state responses to property challenges associated with the COVID crisis.

Throughout the article, Roark and Fox O’Mahony introduce and build what they call the Resilient Property Theory, which focuses on both the state’s responsibility towards people and the state’s own vulnerability and corresponding need to be resilient.

Vulnerability theory has captured the hearts and minds of quite a few academics and the growing vulnerability theory literature attests to its power, especially among those whose work focuses on subordination and inequality. But until this article, there had not been a full-throated celebration and elaboration of the theory within the property law space.

Roark and Fox O’Mahony’s article is worth reading, if for no other reason than because it begins, in Part II, a vulnerability theory – property theory conversation.

That said, the more granular case study of state responses to housing vulnerability connected to the COVID epidemic found in Part III, is also worthy of attention. The authors focus on how states, in response to COVID, provided emergency financial relief, employed housing first strategies, and protected (temporarily) tenants from eviction. They argue that the epidemic shifted the range of the politically possible—what they call the Overton window, the range of politically legitimate options at any given time—so that even neoliberal states acted to shelter and protect those “sleeping rough” as well as those who otherwise would be evicted.

Part III’s strength can be found in the way it pulls examples from across jurisdictions; while the focus is primarily on what happened within the United States, the examples of how other nations dealt with housing precarity in COVID’s wake are woven into the larger story beautifully. Readers are shown some of the differences in approaches across countries. But what comes across more are the commonalities. Governments felt that something had to be done and that people within their territories recognized the imperative to help those in need and expected governments to act. A state that failed to act would itself be vulnerable. Put differently, part of the state’s resiliency depended upon a willingness to be both proactive and flexible in a time of crisis.

Roark and Fox O’Mahony are not the first to observe that moments of crisis are also moments of opportunity; the Article draws upon prior work by Professors Nestor Davidson and Rashmi Dyal-Chand when discussing such opportunities.

As Comparative Property Law and the Pandemic highlights, many of the protections extended by the state—whether in terms of financial assistance or eviction bans—were, by design, temporary. The same arguably is true of the political space to help those in need: things going back to normal could cause a retreat to the neoliberal default of blaming the poor and protecting property owners. Such a retreat itself would arguably fit within Resilient Property Theory’s framework if the state felt it had to move in such a direction to shore up its own strength.

The article does not answer the question of whether Resilient Property Theory tends towards social inclusion or exclusion, but it is clear from the authors’ presentation that state resilience is highly contextual and more flexible than would be predicted by high theory absolutist claims.

Though this review is a celebration of their article, it is worth noting that the article gives a taste of the larger and more in-depth coverage of many of the same issues that are found in their recently published book—Lorna Fox O’Mahony & Marc L. Roark, Squatting and the State: Resilient Property in an Age of Crisis (2022).

For people interested in comparative property law and a fuller elaboration of Resilient Property Theory, the book is well worth checking out. But for those intimidated by the book’s four hundred plus pages and its detailed property histories of multiple nations, the article does a good job promoting a vulnerability theory approach to property.

Indeed, by moving from an emphasis on vulnerability to speaking primarily in terms of resilience, I would argue, Roark and Fox O’Mahony improve upon the theory and make it more likely that it finds a theoretical home within the diverse landscape that is property theory.

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Cite as: Ezra Rosser, Flexible Property Rights and the Resilient State, JOTWELL (September 22, 2022) (reviewing Marc L. Roark & Lorna Fox O’Mahony, Comparative Property Law and the Pandemic: Vulnerability Theory and Resilient Property in an Age of Crises, 82 La. L. Rev. 789 (2022)), https://property.jotwell.com/flexible-property-rights-and-the-resilient-state/.