PropertyProf Blog

Waldron on Property and the Rule of Law

Jeremy Waldron (NYU) has posted The Rule of Law and the Measure of Property (The Hamlyn Lectures) on SSRN.  Here's the abstract:

The idea in these lectures is to discuss the relation between property and the rule of law in a deeper way than this has been discussed in the past, in particular in a way that reflects realistic understanding of how property rights are created and modified. I use the Lockean phrase "the measure of property" but the gist of my argument will be that our thinking about the rule of law needs to focus on all the ways in which property is non-Lockean in its origin, legal status, and moral force. In the course of doing this, I will be looking at some of the rather naive assumptions underlying the tight connection that has been forged between property rights and the rule of law in neo-liberal political economy. And I will argue that we can abandon or modify some of these naive assumptions about property without compromising the very great importance that is properly attached to the ideal of the rule of law.

There are three lectures in all. Unfortunately the original lecture titles are not a good indication of the eventual contents. Lecture 1 was called "The Classical Lockean Picture and its Difficulties" and it mainly addresses the alleged contrast between (a) the rule of law and (b) rule by law, and the suggestion that property rights might be privileged under (a). It explores Richard Epstein's version of this idea and then it spends some time on the Lockean account of property. The argument is that in the real world even Lockean property has an inescapable public law dimension. Lecture 2 was called "Unraveling the Form and Substance of Property," but it is really about the contrast between formal/procedural and substantive views of the rule of law and the dificulties inherent in identifying respect for private property rights as a substantive dimension of the rule of law. The argument is that given the accordion-like expandability of the category of property, this cannot work to privilege property rights over other legal rights etc. Lecture 3 was called "The Rule of Law, Property, and Legislation" and it is a defense of legislation, including regulatory and redistributive legislation in light of the rule of law.

Readers should note that although I spend a lot of time discussing the fact situation in Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), these lectures are not lecture sin Amercina constitutional law, nor do they aim to build pathways through the swamp of US takings jurisprudence.

Steve Clowney

Hudson on How Federal Governments Create Tragedy of the Commons Problems

Blake Hudson (Stetson) has posted Federal Constitutions: The Keystone of Nested Commons Governance (Alabama Law Review) on SSRN.  Here's the abstract:

The constitutional structure of a federal system of government can undermine effective natural capital management across scales, from local to global. Federal constitutions that grant subnational governments exclusive regulatory authority over certain types of natural capital appropriation - such as resources appropriated by private forest management or other land use-related economic development activities - entrench a legally defensible natural capital commons in those jurisdictions. For example, the same constitution that may legally entrench poor forest management practices by private landowners in the southeastern United States may complicate international negotiations related to forest management and climate change. Both the local and international issues may remain unaddressed because the national government is not constitutionally empowered to guide subnational policy formation and therefore may not bind subnational governments to certain types of international agreements related to private forests. Though there are around 160 unitary systems of government worldwide, compared to 25 federal systems, approximately 46 percent of the world’s land base is contained within the boundaries of federal nations. For certain types of natural capital, like forests, the numbers are even starker. Though federal systems comprise approximately 13 percent of the world’s governments, they maintain control over 70 to 80 percent of the world’s forests - a resource crucial for combating climate change.

Ultimately, national constitutional incapacity to participate in subnational natural capital management in federal systems legally entrenches three natural capital commons, one nested within another: 1) private individuals may rationally appropriate natural capital within the state commons in the absence of state government rules guiding sustainable resource appropriation; 2) state governments may rationally appropriate natural capital within the national commons because the national government is not constitutionally empowered to guide resource appropriation within states; and 3) national governments may rationally appropriate resources within the global commons because subnational governments constrain federal system participation in legally binding global governance of resources. This article introduces and describes the operation of nested natural capital commons created by certain federal structures and establishes a foundation for studying how keystone constitutions in federal systems may be fortified to allow more effective natural capital management across local, national, and global scales.

Steve Clowney

Singer on Property Regulations as Lynchpin of Democracy

Joseph Singer (Harvard) has posted Property Law as the Infrastructure of Democracy on SSRN.  Here's the abstract:

It is commonly thought that if one is in favor of strong protection for property rights, liberty, and the free market, one must believe in a minimal state that limits "regulation." But if we pay attention to the history of property law, it becomes clear that all these things can only exist with a robust regulatory structure. Libertarian calls for small government fail to recognize that modern property rights came into existence because of laws that prohibited feudalism, slavery, caste status, and discriminatory barriers to entry to the marketplace. Modern statutes go beyond these foundational regulations to protect consumers by establishing minimum standards for market relationships. Property law (including consumer protection laws) functions as a private constitutional structure that shapes the contours of economic and social relationships; it is the infrastructure of democracy. Its core mission is to define the framework for a free and democratic society that treats each person with equal concern and respect.

Steve Clowney

Grajzl on Property Rights Theory and Legislative Delegation

Peter Grajzl (Washington & Lee - Econ) has posted A Property Rights Approach to Legislative Delegation (Economics of Governance Journal) on SSRN.  Here's the abstract:

This paper applies the property rights theory to study both positive and normative aspects of legislative delegation in a setup where interest groups directly influence lawmaking by initiating regulatory bargaining. A self-interested legislature choosing between the direct exercise of its legislative authority and delegation to an administrative agency must therefore trade off the value of bureaucratic competence against bureaucratic drift and, importantly, loss of control over bargaining. Our analysis, first, clarifies when the legislature's choice between delegation and no delegation is socially efficient or socially inefficient; second, highlights the role of political bargaining and shows that precluding interest group influence through bargaining may actually increase the scope for socially inefficient outcomes; and, third, illustrates the model's predictions in light of selected stylized facts and the practice of scant empirical work on legislative delegation.

Steve Clowney

Ely on the Constitution, Property Rights, and Economic Liberty

James Ely (Vanderbilt) has posted The Constitution and Economic Liberty (Harvard Journal of Law and Public Policy) on SSRN.  Here's the abstract:

This essay addresses the relationship between the Constitution and Bill of Rights and the concept of economic liberty. It calls into question the famous quip of Justice Holmes in Lochner v. New York (1905) that the Constitution was not intended “to embody a particular economic theory.” The essay contends that the framers of the Constitution clearly envisioned a constitutional order grounded on private property and a market economy. To this end, many provisions of the Constitution pertain to property interests and economic activity. It concludes that, although the Constitution does not endorse a laissez-faire regime, Holmes was wrong to suggest that the Constitution was entirely neutral with respect to economic policy. In fact, the framers favored a free market and sought to protect property and contractual rights.

Steve Clowney

Dorfman on Private Property's Conflicting Views of Freedom

Avihay Dorfman (Tel Aviv) has posted Private Property and the Demands of Respectful Recognition on SSRN.  Here's the abstract:

This article explores the normative implications of an analytical mismatch between two ideas of freedom that arise in connection with private ownership. First, within limits, owners enjoy the freedom to deploy their objects as they see fit. And second, modern liberal societies sustain freedom-to by protecting property owners’ freedom from the interference of others. The mismatch arises because freedom-from is not an analytic feature of freedom-to. This article seeks to show that, rather than morally arbitrary, this mismatch is in fact a defining feature of the distinctively social form that private ownership takes.

Steve Clowney

Famous Objects From Classic Movies

Ji Lee's addictive game, Famous Objects from Classic Movies, is one part hangman, one part movie trivia, and one part commentary on how property gives meaning to our experiences.

The game is simple.  It displays a silhouetted image of an object and asks the player to determine what movie it comes from. Three wrong answers and you fail (and there are currently over 60 movies in the game's catalogue). 

I find it wonderfully surprising how the dark silhouette of a piece of property can serve as a shortcut for a whole range of sensory experiences and memories.  Strangely, I even managed deciphered a bunch of answers to movies that I've never seen.  We do see the world through property-shaped lenses.  

Steve Clowney 

 

 

Menashi on Property Rights, Christian Ethics, and Locke

Steven Menashi has posted Cain as His Brother’s Keeper: Property Rights and Christian Ethics in Locke's Two Treatises of Government (Seton Hall Law Review) on SSRN.  Here's the abstract:

Those scholars who regard Locke’s theory of property as a reflection of conventional Christian views pay insufficient attention to the deliberate rhetorical method of his Two Treatises of Government. Close attention to the text reveals profound criticisms of prevailing Christian doctrine. In fact, Locke’s theory of property forms the core of a moral theory that aims to supplant traditional religious teaching with an ethic of human industry and individual autonomy. Understanding Locke’s intention illuminates the foundations of American constitutionalism and of modern liberalism.

Steve Clowney

Dagan's New Book - Property: Values and Institutions

Oxford University Press has just published Hanoch Dagan's new book Property: Values and Institutions.  Here is the publisher's description:

Property: Values and Institutions, by Hanoch Dagan, offers an original understanding of property, different from the dominant voices in the field, yet loyal to the practice of property. It rejects the misleading dominant binarism in which property is either one monistic form, structured around Blackstone's (in)famous formula of sole and despotic dominion, or a formless bundle of rights. Instead, it conceptualizes property as an umbrella for a set of institutions bearing a mutual family resemblance. It resists the prevailing tendency to discuss property through the prism of only one particular value, notably efficiency. Dagan argues that property can, and should, serve a pluralistic set of liberal values. These property values include not only autonomy and utility, which are emphasized by many contemporary scholars, but also labor, personhood, community, and distributive justice.

Dagan claims that property law, at least at its best, tailors different configurations of entitlements to different property institutions, with each such institution designed to match the specific balance between property values best suited to its characteristic social setting. Dagan develops this theoretical account and applies it to key doctrinal contexts. In particular, he analyzes the normative underpinnings of the doctrines regulating the interactions between landowners and governments (both eminent domain and regulatory takings doctrines) and those regulating the governance of property owned by multiple owners (such as co-ownership, marital property, and the law of common interest communities).

I always value Dagan's work, and look forward to reading the book.  For those of you who will be at the upcoming ALPS conference, there will be a session devoted to the book.

Ben Barros

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Collective Bargaining As a Property Rights Issue

There's an interesting thread over at the Faculty Lounge about the Wisconsin battle over collective bargainging rights for public employees.  Professor Calvin Massey opines that collective bargaining by public employee unions should be illegal.  Personally, I think that position is illogical and even dangerous, but perhaps that is because I tend to view most things through the lens of property rights.

I hope it is beyond debate that one has a property right in one's labor (confederate flag raisings notwithstanding).

That being true, it seems to me that advocates of private property rights should be adamant that one has the decision right to alienate, or not alienate, one's property on terms of one's own choosing.  If, for example, I want to sell my house in concert with my neighbors because together we can obtain a higher price, that's my business.  And that's true even if the buyer is the government.  Free market advocates would be outraged if the government told me otherwise, no?

So if we substitute "labor" for "house," why on earth should the result be different?

That's why I believe that opposition to collective bargaining is fundamentally inconsistent with respect for private property rights.  Protecting private property rights means protecting the right of each person to attempt to strike a bargain for the alienation of her labor.  Of course, potential buyers of labor should be free to refuse to purchase until they find a price they are willing to pay; but limiting collective bargaining limits not merely the price a buyer is willing to pay, but also the ability of the seller to bargain for her labor -- her private property. Therefore, limiting collective bargaining means limiting rights in private property.

Yet many of the same people who claim to value private property rights favor eliminating collective bargaining by public employees.  That position is inconsistent at best. 

If I am wrong, please correct me.

Mark A. Edwards

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The Grinch, Property, and Nuisance

How Economics [and Property Rights] Saved Christmas, via Forbes.

Ben Barros

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Disunion

Frequent readers may remember that an important tenet of my property teaching philosophy is that the struggle over property rights has a central place in history.  I've argued that we might undersell the importance of property rights by focusing so intensively on the doctrinal trees that we miss the political-economic forest.

One way I like to discomfort my students, and bring into stark relief the historical importance of property rights, is by examining the emancipation of slaves through the lens of the Takings Clause. 

The Takings Clause may seem (and, I think, is) a somewhat callous and inadequate lens through which to view the abject horror of slavery, but that's exactly how some framed the issue 150 years ago.  In a debate on the Senate floor, Henry Clay (for one) argued that emancipation of slaves would be a taking of private property, requiring just compensation of the slave owners.  Anticipating the reply that emancipation could not be a taking because humans could never have legitimately been property, Clay said (I like to imagine coolly), "That is property which the law says is property." 

In both my first year course, and my Comparative Property Rights seminar, I make my students debate that proposition.  I ask them simply: Is it true?  Most say no.  So then I ask: If law can't tell us what is property, then what can?  No one, myself included, seems to be able to answer that.

All that is a prelude to telling you that for the past few weeks, the New York Times has been running a wonderful feature, Disunion, which provides a day-by-day analysis, using primarily contemporary accounts, of the descent into the Civil War immediately preceeding and following Lincoln's election in 1860.  For history buffs like me, it's fascinating.  I find myself more eagerly concerned about the daily news from November 1860 than the news on the front page. 

The news from this week (minus 150 years) has been particularly ominous.  Southern state legislatures are meeting to 'discuss' secession in the wake of Lincoln's election, but the extreme rhetoric of the meetings leaves no doubt that horrible violence is at hand.  Members of the cabinet of the sitting President are preparing to join them.  The federal government is teetering. 

Meanwhile, President-elect Lincoln has remained maddeningly silent.  Finally, the pressure becomes unbearable, and through Illinois Senator Lyman Trumbull, Lincoln attempts to reassure the South: "when Trumbull told the crowd that under Lincoln, all the states will be left in complete control of their own affairs, including the protection of property, those in the know believed they were hearing the words of the president-elect."  The meaning of Lincoln's pledge to protect property was unmistakable.  Lincoln was attempting to tell the South that, in Clay's words, that was property which the law said was property -- including human beings.  For Lincoln's admirers, that pledge may come as a shock.  He was not yet fully committed to emancipation.   

But, of course, nothing Lincoln could say or do would reassure the Southern legislatures.  They didn't trust him or the abolitionists who supported him.  War was on the horizon. Within five years of that week in November, 600,000 Americans would be dead.

As I like to say to my students, when it comes to property rights, damn right, there will be blood.  

Interestingly, in hate-laced rhetoric that resonates today, secessionists cast Lincoln and Vice President-elect Hamlin as something 'other' than bona fide Americans.  Southern media and politicians constantly accused Hamlin in particular of having “black blood in him,” or being descended from Native Americans.  One Southerner wrote to Lincoln, offering to buy the "intelligent mulatto boy" Hamlin from him.

The Disunion series is a fantastic teaching tool on lots of levels, but it is a treasure trove on the historical centrality of property rights.  Check it out.

Mark A. Edwards

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Dorfman on Numerus Clausus

Avihay Dorfman (Tel Aviv) has posted Property and Collective Undertaking: The Principle of Numerus Clausus on SSRN.  Here's the abstract: 

Property rights are subject to the principle of numerus clausus, which is a restriction that means that it cannot be up to the contracting parties - or private persons, more generally - to create new forms of property right, but only to trade rights that take existing forms. What can explain this peculiar limitation? All the answers offered so far by property theorists have marshaled functional explanations either in favor of or against the numerus clausus principle (hereinafter: NC). In this paper I shall set out to articulate a novel explanation of this principle. My argument develops two general claims. Negatively, explanations that emphasize the desirable effects - the functions - associated with this sort of limitation on the creation of new forms of property right cannot explain the principle in question. As I shall seek to show, this shortcoming is no mere explanatory gap. The NC principle, I argue, remains flatly indifferent to the functions advanced through property rights. Affirmatively, I shall seek to show that the principle of NC reflects a concern about legitimate political authority - that is, it gives a doctrinal expression to the question of how political authority is possible. The authority in question pertains to the normative power of legislating new property rights and their correlative obligations. The principle of NC, I argue, is a limitation on private legislation of new forms of property right. Most importantly, I shall argue that the underlying idea of political legitimation that grounds this principle is none other than democratic self-governance.

Ben Barros

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The Fight for the Arctic

In 2007, Russia planted its flag on an underwater mountain range arising from the oil-rich Arctic seabed, adding a show of power to its legal claim that the range belonged to it under international law.  Not surprisingly, other nations claiming property rights in the Arctic seabed loudly objected, most notably Canada.  As the ice shelf in the Arctic disappears, making areas accessible that were inaccessible before, arguments over sovereign property rights are gathering momentum.  Russian and Norway recently concluded a 40-year dispute over Arctic territories.  And this week scientists and diplomats from a number of nations claiming rights are meeting at a conference in Moscow.  For an excellent source of analysis of international relations in the Arctic, see Professor Michael Byers's blog, Who Owns the Arctic? 

Beyond the obvious geopolitical and resource-management importance of the dispute, it is fascinating to see the array of tactics contemporary competing claimants to property use to establish their dominion over it, particularly for those of us who teach first-year property students.  The parties' use of law, custom, marking & signaling, and raw power to make their claims certainly would not surprise anyone teaching Johnson, Pierson and Ghen.

For example, Russia has gone to great lengths to mark the territory as its own, using a submarine to plant its titanium flag.  It has argued that by custom, the Arctic is its own, since more Russians live within the Arctic circle than any other nationality.  And Russia and Canada are both submitting claims to the territory to the UN for a ruling under the Convention on the Law of the Sea.

In addition, both Russia and Canada are making a show of expanding their presences in the region.  Both countries have found new enthusiasm for sponsoring scientific expeditions to, and building research stations in, the region.  The presence of those stations sends an important signal about territorial claims.  More ominously, in moves that both display territorial claims and threaten the use of raw power, both countries have increased their military presences there as well.  Canada, in fact, held military exercises there and vowed to increase its spending on defense forces for the area.

We teach students that actual, physical presence can be a key to making a successful property rights claim under doctrines such as adverse possession.  That same impulse seems to be animating the competing nations, even without the benefit of a doctrine that would reward their efforts.  That suggests to me that doctrines such as adverse possession merely ratify a deeply felt normative sense that claims to property rights are strengthened by the fact of physical presence.  And this may be our last, best opportunity to see competing claims to "new" earthly territory -- in other words, the doctrine of discovery, and the raw military power that animates it, at work.     

Mark A. Edwards

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The Strange, Utopian Quest for a Workable Bikeshare Program

Two years ago the “Smartbike” program launched in Washington, D.C. (for the uninitiated, bikeshare programs offer free or low-cost access to community-owned bicycles for trips around a city).  By all accounts, Smartbike has been an unqualified disaster.  No one bothered to promote the program, only long-term memberships were offered (freezing out tourists), and there weren’t many places that a rider could pick-up or drop-off a bike.   

Despite the total failure of Smartbike, D.C. is trying again; This week the D.C. Department of Transportation debuted Capital Bikeshare.  The new plan certainly seems like an improvement.  The city has heavily hyped the scheme (they’re on Facebook!), prospective users had input on the locations of the bike stations, and tourists will have access to bikes for 24-hour periods.

Despite these positive innovations, my Property-themed crystal ball indicates that Bikeshare will certainly falter.  Why?  No individual bears a significant portion of the costs if they damage a bicycle – a flat tire here, a bent rim there. Thus, users have little incentive to take care of the bikes or ride them in a safe and reasonable manner. This is classic Tragedy of the Commons territory.   

History, too, shows the folly of D.C.’s efforts.  In 2007, Paris launched Velib -  a remarkably well-funded  and well-promoted attempt at Bikesharing (the Velib program has 20,000 bikes compared to D.C.’s 1000).  Yet, by 2009, 80 percent of the bicycles had been stolen or damaged:

It is commonplace now to see the bikes at docking station in Paris with flat tires, punctured wheels or missing baskets.  Some Velib's have been found hanging from lampposts, dumped in the Seine, used on the streets of Bucharest or resting in shipping containers on their way to North Africa. Some are simply appropriated and repainted.

The failure of the Bikresharing programs is not confined to France.  Other plans have had difficulty (financial or otherwise) in Melbourne, Portland, Stockholm, and Amsterdam.  If both theory and history show that these programs are duds, why do governments keep insisting on giving them a go?

Steve Clowney

(Picture:  The author, thoroughly enjoying a Velib ride before ditching his bike in the Seine)

Lovett on Land Reform in Scotland

John A. Lovett (Loyola New Orleans) has posted Progressive Property in Action: The Land Reform (Scotland) Act 2003 on SSRN.  Here's the abstract:

This article responds to a material deficit at the heart of American property law scholarship. For years, property scholars have debated whether the right to exclude deserves to be the centerpiece of our property regime in the United States. This article seeks to transform that debate by introducing to an American audience a remarkable piece of property legislation recently enacted in Scotland. Part I of the Land Reform (Scotland) Act 2003 creates a right of responsible, non-motorized access across almost all land and in-land water in Scotland, private as well as publicly owned, for purposes of recreation, education and passage. This legislation thus reverses the traditionally robust, ex ante presumption in favor of a landowner’s right to exclude and replaces it with an equally robust, ex ante presumption in favor of the public’s right of responsible access. By introducing this new property right in Scotland and creating an entire property regime to contextualize the right, a regime that is much bolder, in fact, than has been established in England and Wales under the better known Countryside and Rights of Way Act 2000, Scotland has provided property scholars with a case study in property law institutional design that is unique in modern legal systems. This article will demonstrate how the LRSA reveals that it is possible for a property regime to promote the ends of human flourishing without necessarily sacrificing all of the efficiency gains and coordination benefits that flow from the common law’s traditional preference for rules of exclusion.

Ben Barros

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Jones on Property and Personhood

Jeff Jones (Lewis & Clark) has posted Property and Personhood Revisited on SSRN.  Here's the abstract:

Almost thirty years have passed since publication of Margaret Jane Radin’s seminal work, Property and Personhood, in Stanford Law Review. Since publication, the article has been cited over 700 times. The doyens of property law and theory, and leading scholars in other subject areas, readily have called upon Radin’s piece.

In the article Professor Radin makes a compelling case for two claims. First, proper self-development, or personhood, requires individuals to have secure control over some things in their external environment in the form of property rights. Professor Radin calls property in service of personhood “personal” property. Second, property for personhood is one justification for property rights in general, but also for some current schemes of property entitlement. Professor Radin cites special protections accorded to home residence, rules governing eminent domain power, and free speech limitations on private property as examples of existing property rights that align with property for personhood.

This article presents a theory of property for personhood grounded in social science. The article is responsive to recent calls by scholars for greater research in the social psychology of property as it pertains to property law. The theory follows the framework established by Professor Radin, but uses material culture studies and other social science data to develop enriched accounts of personhood and object relations. The result is an entirely new personhood perspective and theory of property for personhood, including the types of property eligible for legal protection. Part I develops a new personhood perspective, that is, new accounts of personhood and object relations. Using this new personhood perspective, Part II introduces a new theory of property for personhood.

Ben Barros

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Lehavi on Property Rights in an Era of Global Finance

Amnon Lehavi (Interdisciplinary Center Herzliyah - Radzyner School of Law) has posted Property Rights in an Era of Global Finance on SSRN.  Here's the abstract:

This chapter for the Encyclopedia of Financial Globalization studies the unique challenges of property rights in an era of global finance. It first defines the fundamental features of property, trying to bridge the gap that often exists between lawyers and economists in conceptualizing this term. The chapter then explains the local origins of property laws and the ways in which their traditional construct is being increasingly challenged by the forces of globalization. It surveys the prominent institutions and mechanisms that currently address the cross-border effects of property rights through supranational norm-making or other types of coordination among different national property systems. Finally, the chapter moves to a more resource-specific analysis of the challenges of property rules in a globalized era. It assesses how the ordering of property rights in land, chattels, intangibles, and intellectual property can be better adapted to a rapidly-changing global financial environment.

Ben Barros

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Saxer on Property Rights in Water.

Shelley Ross Saxer (Pepperdine) has posted The Fluid Nature of Property Rights in Water on SSRN.  Pun presumably intended.  Here's the abstract:

In this article, Professor Saxer discusses how the understanding of private and public rights in water influences the efficient allocation of this essential resource. Property rights to surface water, ground water, and rain water are explored and evaluated using the traditional comparison to the land-based “bundle of rights” metaphor. However, Professor Saxer concludes that this metaphor is inappropriate when applied to a resource such as water, which is constantly changing in form, quantity, and location and is difficult to exclusively possess. Rather, she argues that water rights should be viewed as a communal resource subject to state ownership under the public trust doctrine, with private rights allocated through government contracts granting revocable licenses to use.

Ben Barros

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Fennell on Possession

Lee Anne Fennell (Chicago) has posted Possession Puzzles on SSRN.  Here's the abstract:

This brief essay was delivered in slightly different form as the Third in the Wolf Family Lecture Series on the American Law of Real Property at the University of Florida Levin College of Law on March 17, 2010. In it, I use the foreclosure crisis as a springboard for exploring some foundational questions about the relationship between property rights and secure possession. Although the development of property rights is generally viewed as advancing security of tenure, this is true only up to a point; the ability to subdivide and alienate interests in property ultimately encompasses alienation of certain aspects of the option to remain in possession. Cutting back on property’s alienability comes at a high price, however – reduced access to the very possession one might hope to maintain. After framing the basic tradeoff between access and security, I examine some ways that both values might be pursued simultaneously through the further refinement of property rights.

Ben Barros

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