Presidential Government and the Law of Property
Harvard Law School
December 9, 2013
Wisconsin Law Review, Forthcoming
This Article introduces a phenomenon that has been overlooked in the literature on property lawmaking: presidential governance of property law. On the conventional account, contributing to the development of the property system is about the last thing we would expect to see presidents doing. Yet the President is uniquely situated to treaty property as a system, not just as a right, and presidents expressly affect the property system. While presidents don’t, can’t, and shouldn’t control property lawmaking, recognizing their influence opens up new lines of inquiry that we miss when we think of property simply as bundle of rights — the now-dominant understanding of property law. Focusing upon the unfamiliar category of presidential governance of property forces us to unpack the link between property’s structure and function on the one hand and institutional choice on the other. This link involves balancing variables of institutional choice that are rooted in both constitutional separation of powers and federalism as well as a pragmatic assessment of how the property system works. The first variable concerns the quality of property decisionmaking. The second involves stability and flexibility, and the risk of turmoil and instability, within the property system. The third focuses upon the mixture of uniform and diverse structures of rights and duties within property law. The balance of these three variables dictates that the breadth and depth of presidential governance of the property system should vary based upon differences among resources and contexts of ownership. Surprising as it may sound given our conventional understanding of what property law is and how it is made, we should not ignore presidential governance of property — not in how we teach property law, or in how we write about it.
Number of Pages in PDF File: 72
Keywords: Administrative Law, Presidency, Property LawAccepted Paper Series
Date posted: August 23, 2013 ; Last revised: December 10, 2013
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