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Abstract:
Property law has eluded both a consistent definition and a unified conceptual framework. Instrumentalists insist that property is nothing more than default contract rules. Conceptualists proclaim the primacy of in rem conceptualization and of specially privileged rights such as the rights to exclude. Others think of property as an infinitely malleable bundle of sticks.

We demonstrate that any comprehensive property theory must address four legal questions: (1) What things are protected by property law; (2) vis-a-vis whom; (3) with what rights; and (4) enforced by what mechanism. Then, we introduce a value-oriented theory to show how property law answers these questions by recognizing and helping to create stable relationships between persons and assets, allowing owners to extract otherwise unavailable utility.

Our approach illuminates recent property developments, and demonstrates the need for reform. Additionally, we demonstrate the need for property occasionally to yield to other legal fields like secured transactions.

Property

Abstract:
In this Article, we introduce the concept of anti-property - a private conservation mechanism that allows only socially desirable development. Our mechanism utilizes veto rights to create a collective holdout dynamic that thwarts undesirable uses of conservation commons. We demonstrate, counterintuitively, that when transaction costs systematically bias the market against conservation, the best response may be to create countervailing transaction costs. We also show how the combination of a private anti-property mechanism with a carefully designed takings law may result in an optimal balance between conservation and development.

property, conservation, preservation, commons, anticommons

Abstract:
The Supreme Court decision of Kelo v. City of New London has been denounced by legal scholars from the entire political spectrum and given rise to numerous legislative proposals to reverse Kelo's deferential interpretation of the Public Use Clause of the Fifth Amendment, and instead, limit the use of eminent domain when taken property is transferred to private hands. In this Essay we argue that the criticisms of Kelo are ill-conceived and misguided. They are based on a narrow analysis of eminent domain that fails to take into account the full panoply of government powers with respect to property. Given that the government can achieve any land use goals through the powers of regulation and taxation without paying compensation to the aggrieved property owner, eminent domain is the government power least pernicious to property owners as it is the only one that guarantees them compensation. An important and counter-intuitive implication of this insight is that the calls to restrict the government ability to use eminent domain by narrowly construing public use are going to harm, rather than help private property owners.

The Essay then poses the intriguing question: why does the government ever choose to pay compensation? To answer this question we develop a model of political decisionmaking with respect to land use. Our model enables us to elucidate the political calculus that governs the compensation decision and to specify the conditions under which political decisionmakers will elect to pay compensation regardless of the policy instrument chosen.

takings, eminent domain, public use, just compensation, public choice, political cost-benefit analysis, judicial deference, property regulation, property rights, political decisionmaking

Abstract:
Givings - government acts that enhance property value - are omnipresent. Givings and takings are mirror images of one another, and of equal practical and theoretical importance, but the Takings Clause of the Fifth Amendment has enabled takings to dominate scholarly attention. This Article makes the first step toward rectifying this disparate treatment by laying the foundation for a law of givings.

The Article identifies three prototype givings: physical givings, regulatory givings and derivative givings. The Article shows that givings are a formative force in property, and that a comprehensive takings jurisprudence cannot be devised without an attendant understanding of givings and their relationship to takings.

The Article turns to the task of determining when a giving occurs, and when a "fair charge" - the givings' analogue of "just compensation" - should be assessed on the beneficiaries. By extracting the essential features of takings law, the Article molds the universe of givings into four conceptual clusters. The first cluster is organized around determining when and whether givings can be characterized as reverse takings. The second separates between singled-out givings and majoritarian givings. The third distinguishes between refusable and nonrefusable givings. The fourth differentiates between givings directly linked to particular takings and givings that are not. Finally, the Article offers a three-step model for identifying, assessing, and charging for givings, thereby demonstrating the practical administrability of a law of givings.

The Article argues that charging for givings would reduce interest group politics, enhance the efficiency of government and improve the fairness of the property system.

Abstract:
In this Article, we demonstrate that every property question invariably involves three distinct dimensions: (1) the number of owners, (2) the scope of owner's dominion and (3) asset configuration. Furthermore, we claim that the interplay among the three dimensions shapes the field of property and holds the key to understanding the deep structure of property law. On this view, property law is a balancing act that requires policymakers and private actors to constantly juggle the often-conflicting demands lying along these three dimensions.

The three-dimensional account of property we develop in this Article has important descriptive and normative implications. Descriptively, we show that property law accommodates conflicts by using as many as six different strategies to maximize efficiency over the three dimensions. Furthermore, we demonstrate that all property doctrines fall under one of the six strategies we enumerate. Accordingly, the Article offers a coherent and comprehensive descriptive account of the field.

Normatively, our three-dimensional approach offers a wide array of new policy responses to property challenges. It suggests that every property challenge may be addressed on any one (or more) of the three dimensions. This opens the door to new proposals for resolving such diverse long standing property challenges as managing property rights in tribal land and conservation properties, optimizing access to coastal land, and regulating environmental liability and intellectual property.

property rights, property doctrines, maximizing efficiency, strategies, aggregation, disaggregation, reconfiguration, commons

Abstract:
Eminent domain, or the power to take, is generally analyzed as the quintessential government power. It is unsurprising, therefore, that scholars tend to operate from the basic assumption that eminent domain is solely an incident of the government's domain in the provision of public goods. This assumption has led to widespread criticism of the courts' evisceration of the public use requirement, and repetition of the mantra that the government cannot simply take from A in order to give to B.

In this Article, I show that this conception of takings is too narrow. In function, if not in name, eminent domain is simply another property arrangement, and, as such, it is adaptable to private property law even without state action. Indeed, private takings - i.e., takings carried out by non-governmental actors - have a solid basis in our legal system. Additionally, the justifications for government takings lend themselves just as well to private takings. Recognizing the importance and legitimacy of private takings leads to two central claims. First, I argue that private takings should often be a preferred mechanism for achieving goals generally accomplished today through public takings. Second, I show that identifying private takings as a vital category helps clarify the proper concerns of takings law - not only the constitutionally demanded just compensation offered for takings and the post-taking public use, but also to the pre-taking original use.

Having made these central claims, I posit that a comprehensive law of takings can be developed that encompasses both private and public takings. In the realm of theory, the Article circumscribes the place of takings within the broader theory of entitlements by defining takings within the context of mixed property and liability (pliability) rules. Normatively, the Article argues for the incorporation of private taking mechanisms into fields generally seen as the domain of classic property law and regulation.

takings, private property, private takings, property rules, liability rules, pliability rules

Abstract:
In light of the expansive interpretation of the public use requirement, the payment of just compensation remains the only meaningful limit on the government's eminent domain power and, correspondingly, the only safeguard of private property owners' rights against abusive takings. Yet, the current compensation regime is suboptimal. While both efficiency and fairness require paying full compensation for seizures by eminent domain, current law limits the compensation to market value. Despite the virtual consensus about the inadequacy of market compensation, courts adhere to it for a purely practical reason: there is no way to measure the true subjective value of property to its owner. Subjective value is neither observable nor verifiable to third parties and courts cannot rely upon owners' reports of the value they attach to their properties. To date, the challenge of screening truthful from exaggerated evaluation has proven insurmountable.

This Article solves the undercompensation conundrum. It offers a novel self-assessment mechanism that enables the payment of full compensation at subjective value when private property is taken by eminent domain. Under the proposed mechanism, property owners would get to set the price of the property designated for condemnation. The government could then either take the property at the designated price, or abstain, leaving the property subject to two new proposed restrictions. First, for the life of the owner, the property could not be sold for less than the self-assessed price, adjusted on the basis of the local housing price index. Second, the self-assessed price - discounted to take account of the peculiarities of property tax assessments - would become the new benchmark for the owner's property tax liability.

The Article shows that under most conditions, these restrictions will induce honest reporting by owners, while reducing the transaction costs created by the compensation process. The result is a dramatically more efficient law of eminent domain that is also far more respectful of private property rights.

takings, compensation, eminent domain, self-assessment, just compensation, alienability, property tax, tax assessments

Abstract:
This Article develops a "contributory negligence" rule for takings compensation under which property owners will not be awarded compensation where they overdevelop their property. I propose that a contributory negligence standard be implemented by soliciting homeowner self-assessments that would serve as the basis of both the magnitude of the award of takings compensation and of the decision as to whether property development has been contributorily negligent.

By analogy with economic models of tort law, I show that compensation policy must create bilateral incentives that, on the one hand, deter government decisionmaking on the basis of fiscal illusion, and, on the other hand, discourage property owner behavior on the basis of moral hazard. To be coherent, this compensation policy must have a clear manner of determining the baseline value of property, and it must avoid strategic timing that creates "condemnation blight."

Abstract:
This Essay proposes a mechanism for expanding competition in state property law, while sketching out the limitations necessary to protect third parties.

The fact that property law is produced by the states creates a unique opportunity for experimentation with such property and property-related topics as same-sex marriages, community property, adverse possession and easements. The Essay begins by demonstrating the salutary effects of federalism on the evolution of property law. Specifically, it shows that competition among states has created a dynamic property system in which new property institutions replace obsolete ones.

The Essay then contemplates the possibility of increasing innovation and individual choice in property law by inducing state competition over property regimes. Drawing on the scholarly literature examining state competition for corporate law and competition over the provision of local public goods, the Essay constructs an "open" property system that creates an adequate incentive for the states to offer new property regimes and allows individuals to adopt them without relocating to the offering state.

This Essay also has important implications for the burgeoning literature on the numerus clausus principle, under which the list of legally permissible property regimes is closed. The Essay argues that in a federalist system, it is socially desirable to expand the list of property forms to include certain out-of-state forms.

property law, competition in property law, competition among states, federalism and property law, numerus clausus principle

Abstract:
This Essay attempts to determine the correct regulatory takings compensation policy given the general doctrinal framework in other bodies of American law. In particular, it addresses the following questions. First, given a compensation requirement for eminent domain, is it sensible to interpret the government's regulatory authority as permitting the elimination of property value without compensation? Second, since regulations often produce benefit as well as harm, how can a regulatory givings be incorporated into a consequentialist analysis of regulatory takings compensation? Should the right of property owners to benefit from capital appreciation caused by regulations without returning the windfalls to the government be interpreted as implying a denial of right to receive compensation where the regulations produce adverse effects? Third, given the likelihood that overlapping regulations will produce both benefit and harm for property owners over time, should land use regulations remain uncompensated in light of the probability of a future or past beneficial land use regulation? Fourth, in light of the ubiquity of ad valorem property taxes, should regulations that adversely affect property be seen as implicitly accompanied by compensation given that a reduction in housing values will lead to lower tax payments just as an increase in property prices caused by a public action will increase tax liabilities for property owners?

The findings of the Essay may be summarized as follows. The case for takings compensation is far from perfect, and serious arguments can and have been made against compensation. However, once compensation is a required accompaniment to eminent domain takings, it is extremely difficult to draft a cogent argument for ruling out compensating for regulatory takings in general. Adding consideration of givings and taxes to the picture further demonstrates the problematic nature of much of the law of takings, but does not make a compelling case against compensating for regulatory takings.

takings, regulatory takings, givings, ad valorem taxation

Abstract:
In this Article we explore the evolution of property law and examine the applicability of the prevailing accounts according to which property institutions oscillate between the extreme points of open access and private property. We show that the evolution of property is a much more nuanced process, shaped by the interplay of the following three dimensions: number of owners, extent of dominion and asset configuration. Accordingly, property institutions can assume a myriad of positions along the aforementioned dimensions in response to the constant change in exclusion and management costs. We demonstrate our theory by discussing examples of three dimensional adjustments of real, personal and intellectual property.

property, evolution of property, Demsetz, dimensions of property, property rights

Abstract:
In this Essay, we challenge the conventional typology of constitutional takings by bringing to light a previously unrecognized type of taking-the derivative taking. We show that virtually every exercise of the power of takings generates derivative takings that have largely evaded takings scholars. Furthermore, we demonstrate that the failure of existing takings doctrine to account for derivative takings leads to inefficient and inequitable results. In particular, this failure disproportionately harms the poor.

To remedy this problem, we craft an economic model of self-assessment to optimize constitutional protection at low administrative cost. Importantly, our self-assessment mechanism incentivizes property owners to report truthfully the losses they suffer as a result of government takings. We accomplish this by basing our mechanism on the principle of probabilistic enforcement accompanied by weighted penalties on exaggerations. By lowering the administrative cost of compensation, our self-assessment mechanism enables the compensation of currently uncompensated property owners, and enhances economic efficiency as it forces the government to fully internalize the cost of its actions.

We further show that the utilization of our self-assessment mechanism can illuminate and resolve many of the shortcomings of existing takings doctrine. Our self-assessment mechanism may be used to compensate victims of physical takings and perform this function at a much lower cost than the judicial mechanism currently in place. Its utilization in the context of regulatory takings offers the opportunity to reduce dramatically the cost of administering claims and to clarify such currently ambiguous rules as when a regulation "goes too far" and becomes an exercise of the power of eminent domain. Finally, the information garnered from the self-assessment report may enable us to distinguish between uses of the taxation power that legitimately go uncompensated and takings that demand compensation. We submit that the aggregation of these effects would result in a better and fairer use of the takings power, and begin the process of injecting coherence into a desperately confused area of the law.

Abstract:
In the thirty years since Calabresi and Melamed's seminal Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, scholars have divided protection for legal entitlements into two major types: property rules and liability rules. In this Article, we uncover an overlooked, but crucial third type of legal protection: pliability rules. Pliability rules combine the features of property rules and liability rules, either sequentially or simultaneously. Pliability rules are thus ideal for situations where a legal entitlement must cope with changing circumstances, conflicting policy goals or the inherent limitations of property and liability rules. The Article serves three goals. Conceptually, we show that pliability rules are ontologically distinct from their familiar cousins, and create different effects on incentives and distribution. Descriptively, we demonstrate that while the academy has overlooked them, pliability rules already affect such diverse legal fields as property, antitrust, corporate law and intellectual property. And, normatively, we uncover ways in which pliability rules can revolutionize the patent system and eminent domain jurisprudence, solve anticommons problems and provide a valuable prism to understand the law of bankruptcy.

property rules, liability rules, entitlements, pliability rules