Friday, April 17, 2015
Ronen Perry (Haifa) & Tal Zarsky (Haifa) have posted Taking Turns (Florida State Law Review) on SSRN. Here's the abstract:
Two siblings jointly inherit their late father’s rocking chair. The chair has principally sentimental and no real economic value; it cannot be physically divided between them, and selling it to distribute the proceeds will compensate neither for the sentimental loss. What, then, should become of the disputed property? In a self-confessed “strange” decision in the McDowell case, the Surrogate’s Court of New York ordered that the two siblings take possession of the chair alternately for six-month periods; and that when one passed away, the other would obtain exclusive possession. An allocation method based on alternating enjoyment (or suffering) is commonly known as “rotation,” or more colloquially “taking turns.” Yet despite its manifestation in different legal contexts, and its considerable potential, rotation has been almost neglected by legal theorists. This Article makes the first attempt to delineate and exemplify the proper boundaries of this method’s utilization by and under the law, based on a comprehensive and systematic integration of fairness- and efficiency-oriented concerns. In providing a full-fledged theoretical framework we also aim to alert law and policy makers to the availability of rotation-based solutions to allocative challenges, and to advocate a cautious expansion of their application by and under the law.