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Abstract:
Like the proverbial bundle of sticks that property professors invoke to illustrate the evolution of the concept of property from a unified whole to an infinitely divisible and fungible set of rights, property law has become a bundle of topics that has arguably lost its intellectual coherence and centrality to the study of law. Ironically, the growing importance of a wider range of resources - beyond simply land - has contributed to the erosion of the intellectual coherence of the property field. This article suggests that the disparate elements of the property field can be usefully reunified by focusing upon the relationships among resources, culture, and governance institutions (background legal rules, social norms, markets, and politics). By recognizing that land is just one of a range of resources and that resources can be managed in many effective ways, property law can be seen as both intellectually coherent and vital to the study of law. The article shows how this framework can be used as a means of understanding the governance regimes that emerge in particular contexts and in explaining the evolution of such regimes over time.

Property, Comparative Institutional Analysis

Abstract:
We compare the process to obtain air pollution emission permits for automobile assembly plants in the U.S. and Germany. The project consists of four case studies in which comparisons are made with respect to the costs of obtaining air pollution permits for assembly plant "paint shops"--the part of the factory where new cars and trucks are painted. The plants are owned by the same company, use nearly identical paint application technologies and paints, and use virtually the same air pollution control technologies. Moreover, both countries are federalist in structure, with the national government setting general standards, and the states issuing and enforcing individual permits. These similarities allow us to compare the permitting processes in U.S. and Germany, and to isolate the salient political and legal differences and economic consequences.

In both the United States and Germany, state air pollution agencies implement federal standards that effectively require the assembly plants to install similar pollution abatement technologies to control emissions resulting from increases in production or changes in paint composition. Nevertheless, the two countries' regulatory processes are rather different. Air pollution control laws, regulations, and plant-level permits in the U.S. are somewhat more stringent, detailed, and prescriptive than in Germany. Moreover, U.S. law provides substantially greater opportunity for public participation in agency permitting decisions, and at one U.S. plant, public participation significantly affected the regulatory outcome. For these and other reasons, the permitting processes at the U.S. plants were much slower and more conflictual than at the German plants, resulting in much longer delays in making production changes and installing new pollution controls.