Law Commons^™

Introduction: Toward Voice And Reflexivity, Olivier De Schutter, Katharina Pistor

Faculty Scholarship

In their introductory chapter, De Schutter and Pistor argue that in light of increasing absolute and relative scarcity of land and fresh water there is urgent need to improve the governance of these and other essential resources. Emphasizing “essentiality” shifts the debate from allocative efficiency to normative concerns of equity and dignity. Essential resources are indispensable for survival and/or for meaningful participation in a given community. Their allocation therefore cannot be left to the pricing mechanism alone. It requires new parameters for governance. The authors propose Voice and Reflexivity as the key parameters of such a regime. Voice is …

Coasean Bargaining In Consumer Bankruptcy, Edward R. Morrison

Faculty Scholarship

During my first weeks as a graduate student in economics, a professor described the Coase Theorem as “nearly a tautology:” Assume a world in which bargaining is costless. If there are gains from trade, the Theorem tells us, the parties will trade. The initial assignment of property rights will not affect the final allocation because the parties will bargain (costlessly) to an efficient outcome. “How can that be a theorem?,” I remember thinking at the time.

The Paradoxes Of Restitution, Mark A. Edwards

Faculty Scholarship

Restitution following mass dispossession is often considered both ideal and impossible. Why? This article identifies two previously unnamed paradoxes that undermine the possibility of restitution.

First, both dispossession and restitution depend on the social construction of rights-worthiness. Over time, people once considered unworthy of property rights ‘become’ worthy of them. However, time also corrodes the practicality and moral weight of restitution claims. By the time the dispossessed ‘become’ worthy of property rights, restitution claims are no longer practically or morally viable. This is the time-unworthiness paradox.

Second, restitution claims are undermined by the concept of collective responsibility. People are sometimes …

Property Rights, The "Gang Of Four" & The Fifth Vote: Stop The Beach From Renourishment, Inc. V. Florida Department Of Environmental Protection (U.S. Supreme Court 2010), Garrett Power

Faculty Scholarship

In 2010 The U.S. Supreme Court decided the case of Stop the Beach Renourishment v. Florida Department of Environmental Protection (SBR v. Fla. EPA). Justice Antonin Scalia announced the judgment of the Court. All Justices agreed that Florida had not violated the Takings Clause of the Federal Constitution’s Fifth Amendment. But then in a plurality opinion Justice Scalia joined by the Chief Justice Roberts and Justices Thomas and Alito proposed profound changes in the law of “regulatory takings.” As the spokesman for the Court’s property rights absolutists Scalia advanced two novel legal propositions. First he argued that federal courts …

Property As Modularity, Thomas W. Merrill

Faculty Scholarship

Professor Henry Smith’s Property as the Law of Things urges a return to an older conception of property as rights with respect to things – and justifies this in terms of a very new conception of property based on modularity. Throughout, he highlights the importance of information costs in determining the structure of property law, starting with a baseline of in rem rights of exclusion supplemented by governance rules to deal with exceptional situations. I fully agree with his emphasis on the centrality of things in the law of property, the in rem nature of property, the primacy of exclusion …

Contesting Property Rights: Towards An Integrated Theory Of Institutional And System Change, Katharina Pistor

Faculty Scholarship

It is widely recognized that institutions are embedded in social systems and that institutions as well as social systems change over time. Several implications follow: First, institutions cannot be described and analyzed without referring to the system in which they operate; conversely, a system cannot be described without reference to its core institutions. Second, systems foster institutional change and can breed new institutions. Third, institutional change can have systemic implications and may even engender the formation of new systems. In short, the relation between institutions and systems is characterized by complex interactions. A better understanding of the dynamics of institutional …

A Few Questions About The Social-Obligation Norm, Jedediah S. Purdy

Faculty Scholarship

I applaud Gregory Alexander for proposing an innovative view of property, one focused on the obligations of ownership. His project locates what I think of as the liberal aim of personal freedom (meaning both formal autonomy and real opportunity) within a social context of distributive choices and conceptions of mutual obligation. That is, he is asking what counts as a free society, and he is putting property regimes at the center of the answer. I want to set out some questions about where his project goes from here.

Six Myths About Kelo: Kelo V. City Of New London, Thomas W. Merrill

Faculty Scholarship

Kelo v. City of New London, 125 S. Ct. 2655 (2005), is unique in the modem annals of law in terms of the negative response it has evoked. The initial reaction by lawyers familiar with the case was one of lack of surprise. Within days, however, Internet bloggers, television commentators, and neighbors talking over backyard fences decided that Keio was an outrage. Even Justice Stevens sought to distance himself from his own majority opinion, declaring in a speech to a bar association that he thought the outcome was "unwise," and that he would not have supported it if he were …

A Freedom-Promoting Approach To Property: A Renewed Tradition For New Debates, Jedediah S. Purdy

Faculty Scholarship

This should be a heady time for theorists and practitioners of property law. Some of the most important recent proposals to improve human wellbeing rest on the expansion or reform of property rights. From Peru, the political economist Hernando de Soto recently captured the world's attention by contending that a lack of property rights stands between the slum dwellers of the world's poor countries and new horizons of prosperity. Nearer home, Yale economist Robert Shiller has proposed a new market in risk, essentially propertizing present expectations of good fortune, which would represent one of the most dramatic expansions in the …

Connecticut: Ace Equip. Sales, Inc. V. Buccino, Michael J. Graetz

Faculty Scholarship

Ace Equip. Sales, Inc. v. Buccino, 869 A.2d 626 (Conn. 2005) (reversing adoption of the civil law rule that afforded an inherent riparian right by virtue of abutting property ownership).

Palazzolo V. Rhode Island: Takings, Investment-Backed Expectations, And Slander Of Title, Garrett Power

Faculty Scholarship

No abstract provided.

The Demsetz Thesis And The Evolution Of Property Rights, Thomas W. Merrill

Faculty Scholarship

Both conventional price theory and standard economic accounts of tort and contract law assume fixed property rights. In fact, however, property regimes are not static but change over time. Given the assumption of fixed property that otherwise prevails in economic literature, explaining the evolution of property rights is one of the great challenges for the economic analysis of law.

The point of departure for virtually all efforts to explain changes in property rights is Harold Demsetz’s path‐breaking article, “Toward a Theory of Property Rights.” The article is still widely cited and reproduced, especially in first‐year property courses in law schools. …

Property Rights: A View From The Trenches, Michael A. Heller

Faculty Scholarship

How do governments create – or in some countries recreate - basic property rights that citizens demand in the transition to a market economy? My first comment, quite briefly, is on the debate within this Symposium on the relationship between constitutional reforms and the emergence of new property regimes. Second, I will comment on the counterintuitive property rights regime that is emerging from the "big bang" – the post-1989 collapse of the old socialist legal order in Central and Eastern Europe and the former Soviet Union and its replacement with a new, market-oriented system of property rights.

The Social Origins Of Property, Jack M. Beermann, Joseph William Singer

Faculty Scholarship

The takings clause of the United States Constitution requires government to pay compensation when private property is taken for public use.' When government regulates, but does not physically seize, property, the Supreme Court of the United States has had trouble defining when individuals have been deprived of property rights so as to give them a right to compensation. The takings clause serves "to bar Government from forcing some people alone to bear public burdens that, in all fairness and justice, should be borne by the public as a whole."' To determine when a regulation amounts to a "taking" of property …

Wealth And Property, Thomas W. Merrill

Faculty Scholarship

Professor Stephen Munzer's study of property rights is an ambitious work. Drawing on sources as diverse as Hohfeld, Hegel, Locke, civic republicanism, Marx, the classic utilitarians, and Rawls, he seeks to develop a "pluralist" theory of property, one that synthesizes a variety of philosophical perspectives into a single "basic theory" that can be used to assess and promote the reform of different property systems. Like most attempts to achieve a grand philosophical synthesis, however, this one ultimately fails. The most obvious problem is that Munzer's basic theory is too vague and unwieldy to generate determinate answers to the kinds of …

Trespass, Nuisance, And The Costs Of Determining Property Rights, Thomas W. Merrill

Faculty Scholarship

The right to exclude intrusions by others, we have it on high authority, is "one of the most essential sticks in the bundle of rights that are commonly characterized as property." Yet the right to exclude is not one right; it is itself a collection or "bundle" of rights. With respect to property in land, for example, the right to exclude depends to a large extent on whether the intrusion in question is subject to the common law of trespass or of nuisance. Generally speaking, when the intrusion is governed by trespass, then there is no exception for de minimis …