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Property, Rules, And Property Rules, Emily Sherwin
Property, Rules, And Property Rules, Emily Sherwin
Emily L Sherwin
This essay examines two aspects of “property rules” in the sense defined by Judge Guido Calabresi and Douglas Melamed. In each case, the form in which property rules are cast is critically important. The first question addressed is the capacity of property rules to affect behavior prior to and outside litigation. Most economic analysis of property rules and liability rules assumes that the choice between them will guide decisionmaking at the time of a contemplated rights violation, and possibly prior to that time. To have this effect, property rules (and liability rules) must be established by determinate legal rules that …
Three Reasons Why Even Good Property Rights Cause Moral Anxiety, Emily Sherwin
Three Reasons Why Even Good Property Rights Cause Moral Anxiety, Emily Sherwin
Emily L Sherwin
Entirely apart from the substantive justification for existing private property rights, there are several reasons why property is, unavoidably, a morally uncomfortable subject. First, legal property rights are and must be the products of determinate legal rules. As such, they inevitably will diverge in some of their applications from the moral principles that support them. Second, property rights suffer, more than other legal rights, from problems of transition. Most or all justifications for private property envisage secure rights on which people can and will rely. As a result, there may be genuine moral value in the preservation of rights that …