Property as the Law of Complements

Research Handbook on Private Law Theory, edited by Hanoch Dagan & Benjamin Zipursky (Edward Elgar, 2020)

University of Chicago Coase-Sandor Institute for Law & Economics Research Paper No. 899

U of Chicago, Public Law Working Paper No. 737

24 Pages Posted: 17 Dec 2019 Last revised: 1 Feb 2021

See all articles by Lee Anne Fennell

Lee Anne Fennell

University of Chicago - Law School

Date Written: October 11, 2020

Abstract

Resources often produce more value in combination than they do separately: think of segments of a highway or parts of a machine. I argue that property’s defining purpose is to group together complements, and that property law and theory should focus on identifying and realizing valuable bundles of resources. While some complementarities align with traditional asset boundaries and can be protected by exclusion rights, realizing others requires crossing or eschewing boundaries to recombine resources in ways that further larger social, economic, or ecological objectives. The gains associated with the entrenching and excluding functions of property thus vie with the gains that come from breaking through those entrenchments to reconfigure resources and rights. Conceptualizing property as complementarity – a kind of bundling machine – allows both sorts of projects to be accommodated within a common analytic structure. A law-of-complements view thus offers a new way to understand, in functional terms, what is distinctive about property. Taking complementarity seriously also has dramatic distributive implications, given that some of the most valuable complementarities exist between human capital and property.

Suggested Citation

Fennell, Lee Anne, Property as the Law of Complements (October 11, 2020). Research Handbook on Private Law Theory, edited by Hanoch Dagan & Benjamin Zipursky (Edward Elgar, 2020) , University of Chicago Coase-Sandor Institute for Law & Economics Research Paper No. 899, U of Chicago, Public Law Working Paper No. 737, Available at SSRN: https://ssrn.com/abstract=3500137 or http://dx.doi.org/10.2139/ssrn.3500137

Lee Anne Fennell (Contact Author)

University of Chicago - Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States
773-702-0603 (Phone)

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