Thursday, December 1, 2016

Yael Lifshitz on Rethinking Original Ownership

Yael Lifshitz has posted Rethinking Original Ownership, forthcoming in the University of Toronto Law Journal. This work is related to Yael's doctoral dissertation in New York University's JSD Program. Here is the abstract: XYael_Lifshitz_Goldberg.jpg,qitok=DJ1f_Nmf.pagespeed.ic.fAp9WaxrH3 

At the genesis of property, an initial allocation of entitlements takes place. Existing property scholarship identifies two main rules for assigning original ownership – ‘first possession’ and ‘accession’ – and positions them one against another. This article challenges the conventional binary division and the dominance of either first possession or accession as ‘pure’ allocation principles, arguing instead that the ownership of new resources is often allocated through hybrid mechanisms that combine the two rules. This article offers an analysis of hybrid rules and their utility through a novel and contemporary case study of the ongoing allocation of property in wind energy.

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Another view of history is that the source of many claims to assets (particularly assets within the definition of nature) is the outcome of force, fraud or theft. The nation-state exists because some group of persons either migrated to an unpopulated geographical territory and later defended attempts to dislodge them, or are the descendants of those who succeeded in dislodging earlier occupiers. Military might rather than moral principles dictates how the world’s societies have come to terms with claims to territory, to the natural resources found, to existing forms of capital goods constructed, and even to the inhabitants themselves.
What ought to be the fundamental principle underlying claims to property is what might be best described as a labor and capital goods basis for private property. What we produce with our labor (with or without the aid of tools and other forms of capital goods produced earlier) is our legitimate property. By this definition of property, deeds to land parcels or land-like assets (e.g., the broadcast spectrum or take-off and landing slots at airports, to name just two such assets) are, in effect, forms of economic license issued by the state granting privileges yielding economic and financial value.
A long list of moral philosophers that includes John Locke, Adam Smith, Anne Robert Jacques Turgot, Francois Quesney, Thomas Paine, John Stuart Mill, Henry George, Leo Tolstoy and John Dewey argued that any individual or entity holding such economic licenses owes to society the full potential annual rental value of such an interest in compensation. This is a fundamental prerequisite to secure and protect the principle that access to the earth and the earth’s natural resources is the equal birthright of all persons. Failure to collect the fund of rental values is a failure in governance.

Posted by: Edward J. Dodson, M.L.A. | Dec 19, 2016 2:20:12 PM

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