ABSTRACT
This chapter examines patterns of crisis and equilibrium in property and what the current crisis reveals in terms of contemporary property theory. Evolutionary theory provides fruitful metaphors for understanding the role of crisis in the development of property law. Classic evolutionary theory assumed generally that changes at the species level reflect a steady accumulation of incremental differentiation. The legal literature has proven congenial to theories of steady state incremental development versus punctuated equilibrium. Developments in conceptions of property rights in the nineteenth century raise interesting questions about the public/private divide, and the role of the state in fostering a uniquely American property law. The tension between public and private in property is a particular example of larger intractable ambiguities over the relationship between the state and the individual in private ordering. The public-private investment fund is intended to include private capital alongside public funds for bailing out troubled banks.
