Of property and federalism

Abraham Bell*, Gideon Parchomovsky

*Corresponding author for this work

Research output: Contribution to journalReview articlepeer-review

27 Scopus citations

Abstract

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 nnique opportunity for experimentation with such property and property-related to pics 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 dosed. The Essay argues that in a federal system, it is socially desirable to expand the list of property forms to include certain out-of-state forms.

Original languageAmerican English
Pages (from-to)72-115
Number of pages44
JournalYale Law Journal
Volume115
Issue number1
StatePublished - Oct 2005
Externally publishedYes

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