The Federalist Society

Conservative & Libertarian Legal Scholarship: Property

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II. Property
(See also Section XV on Intellectual Property)

Foundational Materials

Robert C. Ellickson, Carol Marguerite Rose, & Bruce A. Ackerman, Perspectives on Property Law (2d ed., 1995) is a useful collection of readings.

James A. Dorn & Henry G. Manne, Economic Liberties and the Judiciary (1987). A thorough collection of articles on the judicial treatment of property and other economic rights. For an overview of the law and economics literature on various aspects of property law, consult Chapter 3 of Richard Posner, Economic Analysis of Law.

Lior Jacob Strahilevitz, The Right to Destroy, 114 Yale L.J. 781 (2005).  A systematic examination of the historical right to destroy in Roman and English legal traditions, along with a critique of courts' justifications for refusing to enforce the right to destroy based on waste prevention reasons.  Prof. Strahilevitz argues that court refusal to enforce the right has led to decreased social utility through loss of open space, privacy, and risk-taking, and argues for a qualified right to destroy along with a safe harbor that testators can use to enforce their will post-death

Property in its Common Law Context

Lee Anne Fennell, Property and Half-Torts, 116 Yale L.J. 1400 (2007).  This article argues that property scholars have failed to recognize the analytical distinction between risk and harm that is common in torts law.  Professor Fennell brings that distinction into property law through the example of pollution and finds that the distinction renders conclusions that sit more comfortably with moral intuitions.

Henry E. Smith, Property and Property Rules, 79 N.Y.U.L. Rev. 1719 (2004).  This article argues for the superiority of property rules over liability rules based on informational advantages, the natural pairing between property rules and owners' rights to exclude others from their property, and the traditional notion of in rem rights over property.

Theory and History

Robert C. Ellickson, Order Without Law: How Neighbors Settle Disputes (2005). Contains interesting contemporary examples of how property rights are developed and enforced through community custom and without recourse to formal rules or courts.

James Madison, Essay on Property, The National Gazette, March 27, 1792, reprinted in 14 The Papers of James Madison 266 (Robert A. Rutland et al. eds., 1983). Probably the best definition of what constitutes property. For Madison, property includes not only land and chattels, but also one's conscience and the free use of one's faculties. Madison, in other words, bridges the modern gap between economic and personal liberties, so-called.

Morris R. Cohen, Property and Sovereignty, 13 Cornell L.Q. 8 (1927). A noted legal philosopher examines "the nature of property, its justification, and the ultimate meaning of the policies based on it." While Cohen shows himself more of a statist than the average member of the Federalist Society, his discussion of the philosophical defenses of property rights is nonetheless enlightening.

Thomas W. Merrill and Henry E. Smith, What Happened to Property in Law and Economics?, 111 Yale L.J. 357 (2001).  An argument that law and economics scholars have ignored in rem, the critical characteristic of property rights, which is fundamental for rights holders' security and the basis for long-term societal planning.

Felix S. Cohen, Dialogue on Private Property, 9 Rutgers L. Rev. 357 (1954). A Socratic dialogue ranging over a multitude of philosophical questions about property.

Harold Demsetz, Toward a Theory of Property Rights, 57 Am. Econ. Rev. Papers & Proc. 347 (1967). A landmark contribution to our understanding of the origin of property rights systems.

Terry L. Anderson & Peter J. Hill, The Race for Property Rights, 33 J. L. & Econ. 177 (1990); Douglas W. Allen, Homesteading and Property Rights or How the West Was Really Won, 34 J. L. & Econ. 1 (1991). These articles trace the development of property rights systems in the nineteenth century American West.

Thomas Merrill, Trespass, Nuisance, and the Costs of Determining Property Rights, 14 J. Legal Stud. 13 (1985). A comparison of trespass and nuisance, the two primary doctrines available to protect property ownership interests.

Zoning and other Land Use Regulation

William A. Fischel, The Economics of Zoning Laws: A Property Rights Approach to American Land Use Controls (1985). A non-technical examination of land use controls and their ultimate effects by an influential academic economist.

Stewart E. Sterk, The Federalist Dimension of Regulatory Takings Jurisprudence, 114 Yale L.J. 203 (2004).  An essay that rebuts the popular academic critique of the Takings Clause jurisprudence as incoherent.  Prof. Sterk argues that the jurisprudence is coherent when examined from a federalist perspective that recognizes the primacy of states in determining property rules and applies categorical rules that reduce the incentives for states to single out particular landowners for a taking. See also William Michael Treanor, The Original Understanding of the Takings Clause and the Political Process in 95 Colum. L. Rev. 798 (1995). For more readings on the constitutional questions related to property rights, please see the entries on the Takings Clause and Economic Liberties in Section V, Constitutional Law.

Bernard H. Siegan, Non-Zoning in Houston, 13 J. L. & Econ. 71 (1970). A landmark study of land use patterns in Houston, which was at the time the only major U.S. city without zoning laws. Professor Siegan concludes that Houston's land use patterns-including the segregation of "incompatible uses"-were roughly the same as those in cities with zoning laws. See also his book, Land Use Without Zoning (1972).

Edward L. Glaeser, Joseph Gyourko, and Raven Saks, Why is Manhattan so Expensive? Regulation and the Rise in Housing Prices, 48 J. Law & Econ. 331 (2005).  This article questions why housing prices have soared in certain communities by examining both the supply and demand sides of the equation.  The authors conclude that the rise in housing prices is directly tied to a constrained supply imposed by zoning rules.

Robert C. Ellickson, Alternatives to Zoning: Covenants, Nuisance Rules, and Fines as Land Use Controls, 40 U. Chi. L. Rev. 681 (1973). An important review of more narrowly tailored substitutes for traditional zoning regulation.

Robert C. Ellickson, Suburban Growth Controls: An Economic and Legal Analysis, 86 Yale L.J. 385 (1977). A useful demonstration that the "law of unintended consequences" is alive and well in land use regulation.

Robert C. Ellickson, The Irony of ‘Inclusionary' Zoning, 54 S. Cal. L. Rev. 1167 (1981). Argues that this governmental effort to manipulate land use to benefit the low- and moderate-income person is misguided and likely to aggravate the problems it was ostensibly designed to help solve.

Steven J. Eagle, Privatizing Urban Land Use Regulation: The Problem of Consent, 7 Geo. Mason L. Rev. 905 (1999).  Professor Eagle examines whether a privatized, non-unanimous system of zoning that allows decisions to be made by local neighborhood associations is efficient and furthers individual liberty.  He concludes that a devolved, privatized system of zoning is impossible since the government cannot sell its police power and would still exert significant control over zoning decisions made by the local associations.

Thomas W. Merrill and Henry E. Smith, Optimal Standardization in the Law of Property: The Numerus Clausus Principle, 110 Yale L.J. 1 (2000).  This article analyzes the principle of Numerus Clausus, which requires that legally enforceable claims in property law are finite, in sharp contrast to the infinitely customizable forms in contract law.  The authors find several advantages to the finite nature of property law -such as the changes to the forms, which necessarily originate in the legislative branch rather than through judicial entrepreneurship, and the low information-costs inherent in a finite universe - and conclude that property law tends toward the optimal standardization of forms over time.

Landlord-Tenant Law

Richard A. Epstein, Rent Controls and the Theory of Efficient Regulation, 54 Brooklyn L. Rev. 741 (1988). Argues that all rent control statutes are per se unconstitutional and that the usual defenses of rent control are "only disguised pleas for privilege and special interests." Critical commentary follows, as does Richard A. Epstein, Rent Control Revisited: One Reply to Seven Critics, id. at 1281 (1989).

Mary Ann Glendon, The Transformation of American Landlord-Tenant Law, 23 B.C. L. Rev. 503 (1982). The author argues that the recent trend in residential landlord-tenant law has been from private law to regulatory (consumer protection) law, rather than a move from one area of private law (traditional property law's landlord-tenant doctrines) to another (contract doctrines). Glendon further argues that the new regulatory standards applied to residential leases raise "serious questions regarding the future supply and quality of rental housing."

Edward H. Rabin, The Revolution in Residential Landlord-Tenant Law: Causes and Consequences, 69 Cornell L. Rev. 517 (1984). An extensive review and evaluation of the dramatic changes in such areas as implied warranty of habitability, rent control, landlord tort liability, eviction, and the like, that began in the 1960s. Concludes that the revolution produced mixed results. Followed by a number of interesting responses by other scholars, and the transcript of the Liberty Fund conference where Rabin's paper was the centerpiece.

Last updated December 2010

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