Robert C. Ellickson

Alternatives to Zoning: Covenants, Nuisance Rules, and Fines as Land Use Controls

I. EXTERNALITIES AND SYSTEMS FOR THEIR INTERNALIZATION ...................... 683 II. CRITERIA FOR EVALUATING LAND USE CONTROL SYSTEMS ........................ 687 III. AN EVALUATION OF ZONING ................................................. 691 A. Zoning and Efficiency ................................................. 693 B. Zoning and Equity ................................................... 699 C. Reforming Zoning .................................................... 705 IV. COVENANTS, MERGER, AND OTHER CONSENSUAL SYSTEMS OF LAND USE REGULATION 711 V. ASSIGNING RIGHTS AMONG LANDOWNERS: A REFORMULATION OF NUISANCE LAw .. 719 A. Existing Nuisance Law as a Land Use Control System ................... 719 B. Nuisance Law: The Prima Facie Case .................................. 722 1. Assigning Rights to Promote Efficiency: A Preliminary General Rule .. 724 2. Toward a Tripartite System of Internalization: The Unneighborliness Requirem ent ...................................................... 728 3. Compensable Damage: The Problem of Aesthetics ................... 733 4. Measuring Damage: Bonuses for Consumer Surplus .................. 735 5. The Requirement of Substantial Harm .......... 737 6. Remedies: The Plaintiffs Choice between Damages and Purchasing an Injunction ......................................................... 738 C. Nuisance Law: Defenses ............................................... 748 1. The Defense of Freedom of Expression .............................. 748 2. The Defense of Equality of Opportunity ............................ 750 3. The Defense of Hypersensitivity .................................... 751 4. The Defense of Failure to Mitigate Damages ........................ 758 VI. A TENTATIVE SKETCH OF A MORE PRIVATIZED SYSTEM OF LAND USE REGULATION 761 A. The Superiority of Nuisance Law for Localized Harm .................. 762 B. The Necessity of More Collective Internalization Systems for Pervasive H arm ................................................................ 772 VII. CONCLUSION ...................... ............ 779

Of Coase and Cattle: Dispute Resolution Among Neighbors in Shasta County

Introduction .. 624 I. SHASTA COUNTY AND ITS CATrLE INDUSTRY 629 A. Physical Environment 629 B. Social Environment 632 C. Work Environment: Modes of Cattle Ranching ....... 636 1. The traditionalists 637 2. The modernists 638 D. The Benefits and Costs of Boundary Fences 640 II. THE POLITICS OF CATTLE TRESPASS IN THE NORTHEASTERN FOOTHILLS 643 A. Catons Folly: The Closing of the Range at Round M ountain 644 B. Catons Repentance: The Defeat of the Oak Run Closure Petition .. 647 1. Frank Ellis 647

New Institutions for Old Neighborhoods

Residential Community Associations are now the norm in new suburban developments, and in this Article, Professor Robert Ellickson suggests that existing neighborhoods, in inner cities and elsewhere, would benefit from similar institutions. Specifically, he proposes the creation of Block Improvement Districts. These Districts would typically be formed by supermajorities of property owners, who would need to have the power to override objectors to avoid the free rider problem inherent in many kinds of group action. Once formed, these Districts would collect fees from member property owners and, in return, would provide block-level public goods. After exploring both the theoretical and practical aspects of Block Improvement Districts, Professor Ellickson concludes by advocating experimentation with these institutions as a way of more conclusively determining their value.

Unpacking the Household: Informal Property Rights Around the Hearth

As Aristotle recognized in THE POLITICS, the household is an indispensable building block of social, economic, and political life. A liberal society grants its citizens far wider berth to arrange their households than to choose their familial and marital relationships. Legal commentators, however, have devoted far more attention to the family and to marriage than to the household as such. To unpack the household, this Article applies transaction cost economics and sociological theory to interactions among household participants. It explores questions such as the structure of ownership of dwelling units, the scope of household production, and the governance of activities around the hearth. Drawing on a wide variety of historical and statistical sources, the Article contrasts conventional family-based households with arrangements in, among others, medieval English castles, Benedictine monasteries, and Israeli kibbutzim. Most households involve several participants and as many as three distinct relationships - that among occupants, that among owners, and that between these two groups (the landlord-tenant relationship). Individuals, when structuring these home relationships, typically pursue a strategy of consorting with intimates. This facilitates informal coordination and greatly reduces the transaction costs of domestic interactions. Utopian critics, however, have sought to enlarge the scale of households, and some legal advocates have urged household members to write formal contracts and take disputes into court. These commentators fail to appreciate the great advantages, in the home setting, of informally associating with a few trustworthy intimates.

THE ENTITLEMENTS OF UNALLIED HUNTERS AFTER A SEQUENTIAL CAPTURE

As the famous fox case of Pierson v Post illustrates, rival hunters who have separately contributed to the capture of a wild animal may have different notions about which of them owns the prey. During the Stone Age, hunter-gatherers likely developed sophisticated norms to resolve these sorts of controversies. Each of the contributors to this symposium focuses on common law property rights in prey that North American judges articulated during the nineteenth century. Their articles analyse the rules of the game that applied in the Newfoundland sealery, North Pacific whaling grounds, and rural Long Island. In each setting, both hunters and judges tailored the applicable rules of capture to the characteristics of the hunted animal. When hunters’ customs were opaque, as they commonly were, judges sought to crystallize definitive legal rules. The articles in the symposium strikingly illustrate the gulf between ‘humanistic’ and ‘scientific’ styles of legal analysis.