Information Asymmetries and the Rights to Exclude

The American law generally regards the bundle of rights as property\u27s dominant metaphor. On this conception of property, ownership empowers an individual to control a particular resource in any number of ways. For example, he may use it, transfer it, exclude others from it, divide it, and perhaps even destroy it. The various rights in the bundle, however, are not equal in terms of importance. To the contrary, American courts and commentators have deemed the right to exclude foremost among the property rights, with the Supreme Court characterizing it as the hallmark of a protected property interest and leading property scholars describing the right as the core, or the essential element, of ownership. Yet for all its centrality, in the minds of courts and legal scholars, there is substantial conceptual confusion about the nature of the right to exclude. This confusion manifests itself in the form of inconsistent judicial opinions and unsatisfying commentary on those opinions. Discussions of a unitary right to exclude in property law obscure more than they reveal, in part because scholars of exclusion have focused entirely on pure in rem exclusion rights protected by trespass law without exploring the interactions of those exclusion rights that are not protected by trespass law. In my view, it is more helpful to think about exclusion more broadly, so as to encompass those rights that are not themselves founded on trespass law, but that can nevertheless substitute for trespass-based exclusion rights. Exclusion, in these terms, includes a property owner\u27s efforts to exclude prospective entrants from his resource, as well as the entrants\u27 decisions to exclude themselves from the owner\u27s resource

Toward Principled Background Principles in Takings Law

Oversights by lawyers, judges, and legal scholars have caused the Supreme Court’s opinion in Cedar Point Nursery v. Hassid to be deeply misunderstood. In Cedar Point, the Court rewrote much of takings law by treating temporary and part-time entries by the government or third parties onto private property as per se takings. Prior to Cedar Point, these sorts of government-authorized physical entries would have been evaluated under a balancing framework that almost invariably enabled the government to prevail. As it happens, there was a well-established rule of black letter law that California’s lawyers and amici failed to invoke in defending the Cedar Point union organizer’s access regulation: A physical takings claim accrues when a regulation authorizing third parties to enter private property is promulgated, not when the third party actually enters the land. A second timing rule was plausibly applicable too: Only the party that owned the land at the time the physical taking cause of action accrued can prevail, and Cedar Point Nursery acquired the land at issue decades later. As a result, Cedar Point Nursery’s lawsuit was filed decades too late. Quite possibly by the wrong plaintiff. California’s mistakes were probably outcome determinative. Moving beyond Monday-morning quarterbacking, we argue that the statute of limitations arguments available to governments in future cases help provide the essential limiting principles that went unmentioned in Cedar Point. In the aftermath of Cedar Point, prominent scholars denounced the opinion as a vehicle for gutting antidiscrimination law, labor law, environmental law, rent control, and other parts of the regulatory state. Our analysis reveals that these concerns are likely exaggerated because defenders of those longstanding limits on the right to exclude can invoke the statute of limitations arguments that California’s lawyers failed to raise. On the other hand, new restrictions on owners’ rights to exclude are vulnerable to legal challenge. Properly understood, contemporary takings law grandfathers in many longstanding limits on the right to exclude while constraining governments that wish to tackle collective action problems by restricting property rights in new ways. Moreover, statutes of limitations and related doctrines can provide courts with something that has been elusive since the Supreme Court’s 1992 takings decision in Lucas v. South Carolina Coastal Council: a principled and coherent account of what restrictions on owners’ rights are impervious to takings claims because they qualify as background principles of state property law

Toward Principled Background Principles in Takings Law

Blunders made by lawyers, judges, and scholars have caused the Supreme Court’s recent opinion in Cedar Point Nursery v. Hassid to be deeply misunderstood. In Cedar Point, the Court re-wrote takings law by treating temporary and part-time entries onto private property as per se takings. Prior to Cedar Point these sorts of government-authorized physical entries would have been evaluated under a balancing framework that almost invariably enabled the government to prevail. As it happens, there were two well-established rules of black letter law that California’s lawyers and amici mistakenly failed to invoke in defending the Cedar Point union organizer access regulation. First, a physical takings claim accrues when a regulation authorizing third parties to enter private property is promulgated, not when the third party actually enters the land. Second, only the party that owned the land at the time the physical taking cause of action accrued can prevail. Under these doctrines, Cedar Point Nursery’s lawsuit was filed decades too late. By the wrong plaintiff. California’s oversights were probably outcome determinative. Moving beyond Monday-morning quarterbacking, we argue that the statute of limitations arguments available to governments in future cases help provide the essential limiting principles that went unmentioned in Cedar Point. In the aftermath of Cedar Point prominent scholars denounced the opinion as a vehicle for gutting antidiscrimination law, labor law, environmental law, rent control, and other parts of the regulatory state. Our analysis reveals that these concerns are likely exaggerated because defenders of those long-standing limits on the right to exclude can invoke the statute of limitations arguments that California’s lawyers failed to raise. On the other hand, new restrictions on owners’ rights to exclude are vulnerable to legal challenge. Properly understood, contemporary takings law grandfathers in many longstanding limits on the right to exclude while constraining governments that wish to tackle collective action problems by restricting property rights in new ways. Moreover, statutes of limitations and related doctrines can provide courts with something that has been elusive since the Supreme Court’s 1992 takings decision in Lucas v. South Carolina Coastal Council: a principled and coherent account of what restrictions on owners’ rights are impervious to takings claims because they qualify as background principles of state property law

Personalizing Default Rules and Disclosure with Big Data

This Article provides the first comprehensive account of personalized default rules and personalized disclosure in the law. Under a personalized approach to default rules, individuals are assigned default terms in contracts or wills that are tailored to their own personalities, characteristics, and past behaviors. Similarly, disclosures by firms or the state can be tailored so that only information likely to be relevant to an individual is disclosed and information likely to be irrelevant to her is omitted. The Article explains how the rise of Big Data makes the effective personalization of default rules and disclosure far easier than it would have been during earlier eras. The Article then shows how personalization might improve existing approaches to the law of consumer contracts, medical malpractice, organ donation, inheritance, landlord–tenant relations, and labor law. The paper makes several contributions to the literature. First, it shows how data mining can be used to identify particular personality traits in individuals, and these traits may in turn predict preferences for particular packages of legal rights. Second, it proposes a regime whereby a subset of the population (“guinea pigs”) is given a lot of information about various contractual terms and plenty of time to evaluate their desirability, with the choices of particular guinea pigs becoming the default choices for those members of the general public who have similar personalities, demographic characteristics, and patterns of observed behavior. Third, we assess a lengthy list of drawbacks to the personalization of default rules and disclosure, including cross subsidization, strategic behavior, uncertainty, stereotyping, privacy, and institutional-competence concerns. Finally, we explain that the most trenchant critiques of the disclosure strategy for addressing social ills are really criticisms of impersonal disclosure. Personalized disclosure not only offers the potential to cure the ills associated with impersonal disclosure strategies, but it can also ameliorate many of the problems associated with the use of personalized default rules

Property Law for the Ages

Within the next forty years, the number of Americans over age sixty-five is projected to nearly double. This seismic demographic shift will necessitate a reckoning in several areas of law and policy, but property law is especially unprepared. Built primarily for young and middle-aged white men, the common law of property has been critiqued for decades for the ways in which it oppresses or simply leaves behind people based on their race, sex, Native heritage, and more. This Article contributes a new focus on property law’s treatment of people based on their advanced age. Burdened by higher relocation costs, more inelastic incomes, and shorter time horizons than those faced by younger people, elderly people encounter a doctrine that often fails to protect their interests.This Article explores five areas of property law and evaluates how each fits—or, more frequently, fails to fit—the characteristics of many older subjects. From the law of takings to the law of waste, and from tenant protections to homeowners’ associations, not only is the law a poor fit, but the consequences for the health, safety, finances, and well-being of elderly people are often dramatic. At the same time, one of the rare significant efforts made thus far to protect older people from some of these consequences—the Fair Housing Act’s protection for age-restricted communities—has generated new inequities of its own that raise important questions about competing civil rights priorities. Accordingly, mindful of the dangers of overcorrection, this Article offers institutional reforms aimed to better protect the interests of older people in each area without unduly infringing upon those of others

Judicial Takings or Due Process

In Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, a plurality of the U.S. Supreme Court concluded that the Takings Clause of the U.S. Constitution prohibits the judiciary from declaring that what was once an established right of private property no longer exists unless the property owner in question receives just compensation. In this Article, we delineate the boundaries between a judicial taking and a violation of the Constitution\u27s due process protections. The result is a judicial takings doctrine that is narrower and more coherent than the one suggested by Stop the Beach. Our argument proceeds in two parts. The first is a conceptual section that explains what factors are relevant to determining whether a judicial action diminishing a private property interest is a judicial taking or something else. In our view, where a judicial decision intentionally seizes private property to achieve a legitimate public end, the Takings Clause is an appropriate framework for evaluating the constitutionality of the State\u27s action. The Due Process Clause is the more appropriate doctrinal pathway where the judiciary does not intend to appropriate a private owner\u27s property rights on the State\u27s behalf, or where the diminution of private property rights results from a judicial action that serves no legitimate public purpose. By clarifying the boundaries of judicial takings, we also hope to shed light on the constitutional foundations for numerous state-court doctrines concerning the retroactivity of new property rules. The second section articulates a novel functional argument, which suggests that creating liability for judicial takings may cause litigants to under invest in high-quality legal representation, which will in turn increase the likelihood of judicial mistakes and contribute to the destabilization of existing entitlements. This phenomenon prompts us to argue that cases in which the underinvestment incentives are most pronounced should be litigated under the Due Process Clause, but cases where repeat play or the government\u27s involvement as a litigant mitigates the underinvestment problem represent more appropriate vehicles for judicial takings treatment. What rides on the distinction between judicial takings and due process violations? Under our approach, judicial takings cases should be (a) easier to win than due process cases, (b) more likely to result in damages remedies than injunctive remedies, and (c) more amendable to attractive comparative fault inspired solutions

Property Law for the Ages

Within the next forty years, the number of Americans over age sixty-five is projected to nearly double. This seismic demographic shift will necessitate a reckoning in several areas of law and policy, but property law is especially unprepared. Built primarily for young and middle-aged white men, the common law of property has been critiqued for decades for the ways in which it oppresses or simply leaves behind people based on their race, sex, Native heritage, and more. This Article contributes a new focus on property law’s treatment of people based on their advanced age. Burdened by higher relocation costs, more inelastic incomes, and shorter time horizons than those faced by younger people, elderly people encounter a doctrine that often fails to protect their interests. This Article explores five areas of property law and evaluates how each fits—or, more frequently, fails to fit—the characteristics of many older subjects. From the law of takings to the law of waste, and from tenant protections to homeowners’ associations, not only is the law a poor fit, but the consequences for the health, safety, finances, and well-being of elderly people are often dramatic. At the same time, one of the rare significant efforts made thus far to protect older people from some of these consequences—the Fair Housing Act’s protection for age-restricted communities—has generated new inequities of its own that raise important questions about competing civil rights priorities. Accordingly, mindful of the dangers of overcorrection, this Article offers institutional reforms aimed to better protect the interests of older people in each area without unduly infringing upon those of others