Of Property and Federalism
Bar Ilan University - Faculty of Law; University of San Diego School of Law
University of Pennsylvania Law School; Bar Ilan University - Faculty of Law
Yale Law Journal, Vol. 115, Pg. 72, 2005
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.
Number of Pages in PDF File: 44
Keywords: property law, competition in property law, competition among states, federalism and property law, numerus clausus principle
Date posted: April 25, 2005 ; Last revised: July 31, 2009