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Of Property and Federalism

44 Pages Posted: 25 Apr 2005 Last revised: 31 Jul 2009

Abraham Bell

Bar Ilan University - Faculty of Law; University of San Diego School of Law

Gideon Parchomovsky

University of Pennsylvania Law School; Bar Ilan University - Faculty of Law

Abstract

This Essay proposes a mechanism for expanding competition in state property law, while sketching out the limitations necessary to protect third parties.

The fact that property law is produced by the states creates a unique opportunity for experimentation with such property and property-related topics as same-sex marriages, community property, adverse possession and easements. The Essay begins by demonstrating the salutary effects of federalism on the evolution of property law. Specifically, it shows that competition among states has created a dynamic property system in which new property institutions replace obsolete ones.

The Essay then contemplates the possibility of increasing innovation and individual choice in property law by inducing state competition over property regimes. Drawing on the scholarly literature examining state competition for corporate law and competition over the provision of local public goods, the Essay constructs an "open" property system that creates an adequate incentive for the states to offer new property regimes and allows individuals to adopt them without relocating to the offering state.

This Essay also has important implications for the burgeoning literature on the numerus clausus principle, under which the list of legally permissible property regimes is closed. The Essay argues that in a federalist system, it is socially desirable to expand the list of property forms to include certain out-of-state forms.

Keywords: property law, competition in property law, competition among states, federalism and property law, numerus clausus principle

Suggested Citation

Bell, Abraham and Parchomovsky, Gideon, Of Property and Federalism. Yale Law Journal, Vol. 115, Pg. 72, 2005. Available at SSRN: https://ssrn.com/abstract=709321 or http://dx.doi.org/10.2139/ssrn.709321

Abraham Bell

Bar Ilan University - Faculty of Law ( email )

Faculty of Law
Ramat Gan, 52900
Israel

HOME PAGE: http://law.biu.ac.il/English/segelE.php#

University of San Diego School of Law ( email )

5998 Alcala Park
San Diego, CA 92110-2492
United States

Gideon Parchomovsky (Contact Author)

University of Pennsylvania Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States
215-898-1603 (Phone)

Bar Ilan University - Faculty of Law ( email )

Ramat Gan 52900
Israel
972-2-5317078 (Phone)

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