Law Commons^™

The Privacy Interest In Property, Abraham Bell, Gideon Parchomovsky

University of Pennsylvania Law Review

Once upon a time, there existed a clear nexus between property and privacy. Protection of property rights was an important safeguard against intrusions of the privacy interests of owners both by the government and by private actors. Gradually, however, the symbiotic relationship between privacy and property has been forgotten by scholars and policymakers and fallen into oblivion.

In this Article, we seek to restore the centrality of privacy in property law by making two novel contributions – one descriptive and one normative. Descriptively, we demonstrate that concerns for privacy inform, at times implicitly, many important property doctrines. Indeed, we show …

The Value Of The Right To Exclude: An Empirical Assessment, Jonathan Klick, Gideon Parchomovsky

University of Pennsylvania Law Review

Property theorists have long deemed the right to exclude fundamental and essential for the efficient use and allocation of property. Recently, however, proponents of the progressive property movement have called into question the centrality of the right to exclude, suggesting that it should be scaled back to allow the advancement of more socially beneficial uses of property. Surprisingly, the debate between the opponents and detractors of the right to exclude is devoid of any empirical evidence. The actual value of the right to exclude remains unknown. In this Article, we set out to fill this void by measuring, for the …

The Case For Imperfect Enforcement Of Property Rights, Abraham Bell, Gideon Parchomovsky

University of Pennsylvania Law Review

A persistent theme in the literature on property rights suggests that perfect state protection of private property rights would provide owners with an optimal incentive to invest in their assets. In this Essay, we challenge this view. Specifically, we argue that in many instances, perfect state protection would result in over-investment in resources. This is because perfect enforcement gives rise to a problem akin to the moral hazard problem that plagues insurance markets. In addition to pointing out this problem, we define the conditions under which it may arise in the real world and discuss the measures law should take …