Abraham Bell

A Theory of Property

Property law has eluded both a consistent definition and a unified conceptual framework. Instrumentalists insist that property is nothing more than default contract rules. Conceptualists proclaim the primacy of in rem conceptualization and of specially privileged rights such as the rights to exclude. Others think of property as an infinitely malleable “bundle of sticks.” We demonstrate that any comprehensive property theory must address four legal questions: (1) What things are protected by property law; (2) vis-a-vis whom; (3) with what rights; and (4) enforced by what mechanism. Then, we introduce a value-oriented theory to show how property law answers these questions by recognizing and helping to create stable relationships between persons and assets, allowing owners to extract otherwise unavailable utility. Our approach illuminates recent property developments, and demonstrates the need for reform. Additionally, we demonstrate the need for property occasionally to yield to other legal fields like secured transactions. ∗ Visiting Associate Professor, Fordham University Law School; Lecturer, Bar Ilan University Faculty of Law. ∗∗ Assistant Professor, University of Pennsylvania Law School. This Article greatly benefited from comments and criticisms by Oren Bar-Gill, Susan Block-Lieb, Bob Ellickson, Abner Greene, Assaf Hamdani, Eugene Kontorovich, Brian Lenhard, Jide Nzelibe, Russell Pearce, Eduardo Penalver, Dan Richman, Chris Serkin, Peter Siegelman, Henry Smith, Linda Sugin, Steve Thel, Bill Treanor, Ben Zipursky, and participants in the Fordham University Law School Faculty Workshop. Peter Huh, Sean McEldowney, Drew Norman and Kara Siegel provided outstanding research assistance.

Reconfiguring Property in Three Dimensions

In this Article, we demonstrate that every property question invariably involves three distinct dimensions: (1) the number of owners, (2) the scope of owners dominion and (3) asset configuration. Furthermore, we claim that the interplay among the three dimensions shapes the field of property and holds the key to understanding the deep structure of property law. On this view, property law is a balancing act that requires policymakers and private actors to constantly juggle the often-conflicting demands lying along these three dimensions.The three-dimensional account of property we develop in this Article has important descriptive and normative implications. Descriptively, we show that property law accommodates conflicts by using as many as six different strategies to maximize efficiency over the three dimensions. Furthermore, we demonstrate that all property doctrines fall under one of the six strategies we enumerate. Accordingly, the Article offers a coherent and comprehensive descriptive account of the field.Normatively, our three-dimensional approach offers a wide array of new policy responses to property challenges. It suggests that every property challenge may be addressed on any one (or more) of the three dimensions. This opens the door to new proposals for resolving such diverse long standing property challenges as managing property rights in tribal land and conservation properties, optimizing access to coastal land, and regulating environmental liability and intellectual property.

Of Property and Anti-Property

In this Article, we introduce the concept of anti-property - a private conservation mechanism that allows only socially desirable development. Our mechanism utilizes veto rights to create a collective holdout dynamic that thwarts undesirable uses of conservation commons. We demonstrate, counterintuitively, that when transaction costs systematically bias the market against conservation, the best response may be to create countervailing transaction costs. We also show how the combination of a private anti-property mechanism with a carefully designed takings law may result in an optimal balance between conservation and development.

The Mythical Post-2005 Israeli Occupation of the Gaza Strip

Consistent with the resolution of the government of Israel and the proclamation of the Military Commander, in 2005 Israel withdrew all Israeli military forces from Gaza, forcibly removed all Israeli civilians, and dismantled its military administration in the entirety of the Gaza Strip. In addition, Israel abandoned its presence in the ‘Philadelphi Corridor’ – the border area between the Gaza Strip and Egypt. Notwithstanding this complete withdrawal from Gaza, a number of legal advocacy groups, UN organs and other observers have continued to opine that Gaza is under Israeli occupation. This article examines the validity of claims that Israel still ‘occupies’ Gaza under the laws of war and occupied territory. The article concludes that such claims are without any basis in international law. It should be emphasized that this article assumes, arguendo, that prior to 2005, Gaza was territory belligerently occupied by Israel; it does not enter into the disputes about whether Gaza should have been considered occupied territory from 1967 to 2005.

The Evolution of Private and Open Access Property

In this Article we explore the evolution of property law and examine the applicability of the prevailing accounts according to which property institutions oscillate between the extreme points of open access and private property. We show that the evolution of property is a much more nuanced process, shaped by the interplay of the following three dimensions: number of owners, extent of dominion and asset configuration. Accordingly, property institutions can assume a myriad of positions along the aforementioned dimensions in response to the constant change in exclusion and management costs. We demonstrate our theory by discussing examples of three dimensional adjustments of real, personal and intellectual property.

The Hidden Function of Takings Compensation

To date, scholars have justified the constitutional mandate to pay compensation for takings of property on the intuitively appealing grounds that fairness demands recompensing aggrieved owners; on the basis of a belief that government that fails to pay will suffer from “fiscal illusion” and take excessively; or due to the need to neutralize politically powerful property owners who would otherwise foil socially beneficial projects. This Essay offers a new explanation of the role of takings compensation in ensuring good government. Inspired by public choice theory, we argue that takings compensation reduces the incentives for corruption by limiting corrupt politicians’ ability to profit from takings. Specifically, we show that mandating compensation reduces the funds self-serving politicians can extort from property owners. At the same time, mandating compensation permits publicly-oriented politicians to continue pursuing socially beneficial projects.This explanation yields important insights into the optimal structure of takings compensation. First, current incentives to use eminent domain excessively in the service of private developers cannot be blunted by modifying compensation policy. Only by a separate policy that charges developers for the benefits they receive can reduce or eliminate such misuse of the taking power. Second, overcompensation is even worse than under-compensation insofar as corruption is concerned. For this reason, laws requiring the payment of fixed percentage bonus above market value to property condemnees are in error. Additionally, where judges are thought systematically to overrate the subjective value owners attach to their properties, market value compensation may have some merit. Third, public compensation cannot be replaced by a private insurance system, even if such insurance were practical, since insurance too would encourage corruption.

Property Lost in Translation

In this Essay, we explore the phenomenon of localized property systems and the interactions of such localized property systems with property law. Our Essay aims to provide the beginnings of an exploration of localized property systems and translation problems, rather than a complete survey. In our exploration, we look both at the local systems themselves, and at their implications for our broader understanding of the world of property. We begin by showing the ubiquity of localized property systems. Some appear quite exotic, such as the informal property rights in favelas in Brazil, collective property rights in kibbutzim in Israel, or even virtual property rights in computer games. Others localized property systems are quite mundane, such as the quasi-property rights in urban parking spaces, or the agreed-upon property arrangements among roommates. In all events, localized property systems serve some need of the localized property users. The localized systems may be due to lower transaction costs thanks to ongoing relationships (roommates), ideological preferences (kibbutzim), flaws in property law or its satellite regulatory systems (favelas) or a variety of other reasons. Whatever the reasons for the localized property systems, they are not costless. All localized property systems entail translation costs with the wider state property systems around them. Translation costs result from incompatibilities, as well as information and enforcement costs. One way of understand the phenomenon of localized property systems is through the economics of network effects. Property law systems, like other legal systems, have greater utility with greater numbers of adherents. These network effects, and the translation costs entailed in using localized property systems, create pressure for localized property systems to converge with the larger state property systems around them. But pressures for convergence may be resisted. Convergence is itself costly. The costs of transitioning may bar convergence, or the continued utility of the localized property system may render convergence not cost-effective. Additionally, politics may block efficacious convergences of property systems. One potential insight stemming from our analysis is in the theory of commons property: translation costs must be taken into account when examining collective action solutions to tragedies of the commons.

Reinventing Copyright and Patent

Intellectual property systems all over the world are modeled on the one-size-fits-all principle. However important or unimportant, inventions and original works of authorship receive the same scope of protection, for the same period, backed by the same variety of legal remedies. Metaphorically speaking, all intellectual property is equal under the law. This equality comes at a heavy price. The equality principle gives all creators access to the same remedies, even when those remedies create perverse incentives. Moreover, society overpays for innovation by inflicting on society more monopoly losses than are strictly necessary to incentivize production.In this Article, we propose a solution for these problems in the form of a self-tailored system of intellectual property rights. The self-tailored system would allow inventors and creators to self-select the optimal protection for their intellectual works. Working from the bottom up, our self-tailored system would give each innovator a basic package of intellectual property rights and enforcement powers and then allow her to add additional rights and legal elements in exchange for a fee.Our self-tailored system would reduce wasteful litigation while encouraging wider dissemination and more extensive use of inventions and expressive works. In addition, our proposal would lower the social cost of granting monopoly protection to intellectual goods while at the same time, maintaining an adequate level of economic incentives to create and invent. Accordingly, our self-tailored system would constitute a marked improvement over the extant one-size-fits all design of intellectual property rights.Unlike other proposals for reform that seek to improve access to expressive works and inventions via the use of compulsory licenses and other coercive policies, our model is purely voluntary. It respects authors’ and inventors’ autonomy and uses market mechanisms — specifically, pricing — to recalibrate our intellectual property system in a way that improves societal well-being.