76 Pages Posted: 8 Nov 2013 Last revised: 8 Jan 2015
Date Written: October 24, 2014
Takings, or involuntary terminations of ownership, have a widely ignored logical counterpart: involuntary impositions of ownership, or “forcings.” While legal compulsion to begin or continue ownership is neither entirely unstudied as an academic matter nor entirely unprecedented as a doctrinal matter, the category lacks a unified treatment. Because coercively imposed ownership can substitute for other forms of government coercion, forcings deserve attention, even if they will rarely dominate other alternatives. Attending to forcings as a conceptual possibility reveals their kinship with existing features of law and highlights one of ownership’s most essential moves: delivering actual outcomes, and not just their expected value equivalents. Unpacking the considerations that might prompt law to impose ownership on unwilling parties points the way to alternatives short of full-strength compelled ownership. The analysis also suggests an additional domain of government action — “relievings” — for unburdening owners of unwanted property.
Keywords: eminent domain, takings, givings, ownership, put options, abandonment, accession, land use
Suggested Citation: Suggested Citation
Fennell, Lee Anne, Forcings (October 24, 2014). 114 Columbia Law Review 1297 (2014); University of Chicago Coase-Sandor Institute for Law & Economics Research Paper No. 666; U of Chicago, Public Law Working Paper No. 449; Kreisman Working Papers Series in Housing Law and Policy No. 2. Available at SSRN: https://ssrn.com/abstract=2351358 or http://dx.doi.org/10.2139/ssrn.2351358