Reconfiguring Property in Three Dimensions
Bar Ilan University - Faculty of Law; University of San Diego School of Law
University of Pennsylvania Law School; Bar Ilan University - Faculty of Law
University of Chicago Law Review, Vol. 75, p. 1015, 2008
U of Penn Law School, Public Law Research Paper No. 07-38
Bar Ilan Univ. Pub Law Working Paper No. 07-06
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.
Number of Pages in PDF File: 56
Keywords: property rights, property doctrines, maximizing efficiency, strategies, aggregation, disaggregation, reconfiguration, commonsworking papers series
Date posted: September 17, 2007 ; Last revised: July 30, 2009
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