Private Takings

Eminent domain, or the power to take, is generally analyzed as the quintessential government power. It is unsurprising, therefore, that scholars tend to operate from the basic assumption that eminent domain is solely an incident of the government\u27s domain in the provision of public goods. This assumption has led to widespread criticism of the courts\u27 evisceration of the public use requirement, and repetition of the mantra that the government cannot simply take from A in order to give to B. In this Article, I show that this conception of takings is too narrow. In function, if not in name, eminent domain is simply another property arrangement, and, as such, it is adaptable to private property law even without state action. Indeed, private takings—that is, takings carried out by nongovernmental actors—have a solid basis in our legal system. Additionally, the justifications for government takings lend themselves just as well to private takings. Recognizing the importance and legitimacy of private takings leads to two central claims. First, I argue that private takings should often be a preferred mechanism for achieving goals generally accomplished today through public takings. Second, I show that identifying private takings as a vital category helps clarify the proper concerns of takings law—not only the constitutionally demanded just compensation offered for takings and the posttaking public use, but also to the pretaking original use. Having made these central claims, I posit that a comprehensive law of takings can be developed that encompasses both private and public takings. In the realm of theory, the Article circumscribes the place of takings within the broader theory of entitlements by defining takings within the context of mixed property and liability ( pliability ) rules. Normatively, the Article argues for the incorporation of private taking mechanisms into fields generally seen as the domain of classic property law and regulation

Governing Communities by Auction

Common interest communities have become the property form of choice for many Americans. As of 2010, sixty-two million Americans lived in common interest communities. Residents benefit from sharing the cost of common amenities – pools, lawns, gazebos – and from rules that ensure compliance with community expectations. But decisionmaking in common interest communities raises serious concerns about minority abuse and manipulation, a problem well known to all property law students. Decisions about which amenities will be provided and which rules will be enacted are typically made through some combination of delegation and voting. Delegates often act for their own benefit, and, for a variety of reasons, voting fails to capture the preferences of the community. This Article suggests a better way. Building upon the pioneering work of Vickrey, Clarke, and Groves, we propose a novel auction system that captures the intensity of resident preferences while preserving the honesty of declared preferences. The use of auction theory induces truthful revelation of preferences by participants and reflects the intensity of preference for any given policy outcome. As a result, our system allows communities to make better decisions and makes common interest communities more responsive to the needs of residents

Propertizing Fair Use

In its current form, fair use doctrine provides a personal defense that applies narrowly to the specific use by the specific user. The landmark case of Google v. Oracle, currently pending before the Supreme Court, illustrates why this is problematic. Even if the Court were to rule that Google’s use of Oracle’s Java API’s was fair, the ruling would not protect the numerous parties that developed Java applications for the Android operating system; it would only shelter Google and Google’s particular use. This is not an isolated problem; the per use/per user rule cuts across fair uses of copyrighted works, and it always leaves follow-on users in the cold. Authors, musicians, documentary filmmakers and media outlets who win fair use cases cannot freely market their works that incorporate fair use content since their victories do not carry over to other users. Fair use under extant law is a very limited privilege. This Article proposes a far-reaching reform not only of copyright law as applied to software, but of the fair use doctrine itself. Our proposal consists of three interlocking elements. First, we call for the introduction of a new in rem conception of fair use, under which a fair use ruling would serve as a property remedy that shelters all subsequent users of works that fairly incorporate preexisting materials. Under this new conception, a finding of fair use would run with that new work like an easement to all other distributors, broadcasters, publishers, performers and others who use it. The introduction of this new type of in rem fair use would result in the division of fair use into two conceptions—one in rem and one in personam—that would co-exist alongside one another. Second, we would grant judges discretion to decide which fair use conception, if any, should be granted in any particular case. Judges would be able to employ the traditional in personam rule that the fair use avails only the specific defendant before it, or they could adopt an in rem fair use ruling, creating a property entitlement that runs with the work embodying the fairly incorporated content. Third, we propose two default rules to assist judges in making their decisions. Specifically, we propose that the default setting of fair use would depend on the type of use being examined. Where the claimed fair use consists of incorporating the protected copyrighted material in a new copyrighted work—such as the Android operating system—the default fair use would be of the in rem variety. However, in all other cases of claimed fair use, the traditional, familiar in personam conception would be the default setting. This approach would create clarity about the status of follow-on fair uses, but permit judges to tailor their rulings case by case. Implementation of our proposal would yield several significant improvements to the current fair use doctrine. It would permit judges to take account of the potential for future uses of the fair use work, without handcuffing them to a single approach. Moreover, it would increase certainty with respect to the use of copyrighted work by lowering transaction and litigation costs for creators of new works. Finally, the version of fair use we advocate would enhance the use of copyrighted content

Of Property and Federalism

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

Of Property and Information

The property-information interface is perhaps the most crucial and under-theorized dimension of property law. Information about property can make or break property rights. Information about assets and property rights can dramatically enhance the value of ownership. Conversely, dearth of information can significantly reduce the benefit associated with ownership. It is surprising, therefore, that contemporary property theorists do not engage in sustained analysis of the property-information interface and in particular of registries — the repositories of information about property. Once, things were different. In the past, discussions of registries used to be a core topic in property classes and a focal point for property scholarship. In recent decades, registries have lost their luster for scholars, and their discussion has been relegated to the innermost pages of property textbooks. The reason for this is that registries are widely considered the domain of legal practitioners, not of theorists. We argue that nothing could be further from the truth. Registries and the information they contain are, in fact, the formative forces that shape the world of property and no theoretical account of the institution of property can be complete without them. In this Essay, we offer the first in-depth legal-theoretical analysis of the intricate relationship among title information, rights and assets in the domain of property, as mediated by registries. Our analysis gives rise to several new insights. First, we highlight the triple role that registries perform for property owners. They simultaneously perform a facilitative role by streamlining transactions between willing sellers and buyers, an obstructive rule by hindering non-consensual encroachments and takings of assets, and an enabling role by allowing owners to locate and use their own lost assets. Second, going against the accepted lore, we posit that perfect registries, even if they were possible, are socially undesirable on account on what we call “the information/asset paradox.” Perfect information about assets and legal rights may result in the destruction, dismembering and mutilation of the asset by non-consensual takers in an attempt to make the asset unrecognizable, as exemplified by millions of stolen cars and jewelry, or, conversely, to attempts to engage in “identity theft” in order to give thieves the benefit of the registered rights. Third, we argue that the registries are socially desirable when it is impossible or difficult to alter the defining characteristic of the underlying asset. This insight explains why there are registries for non-transformable assets, such as land and unique artworks, but not for transformable assets that include mass production goods and many natural resources. Finally, we address the question of which rights should be covered by registries and how much legal deference should be given to them. The framework we provide is significant not only for theoretical reasons, but also for practical ones. For example, it can inform policymakers in deciding whether to establish new registries for smart-phones and personal computers in order to combat theft of such devices. Similarly, our analysis sounds a cautionary note about the ability of registries of copyrighted works to curb unlawful appropriation and distribution. Per our analysis, such assets are infinitely malleable and, worse yet, information concerning ownership in such works can be easily effaced or altered in the digital age. We also discuss how considerations of costs and privacy affect the comprehensiveness and integrity of registries. At the end of the day, our analysis exposes the promise and the limitations of registries, as well as the ways in which they can be improved by the state