The Boundaries of Private Property

Yale Law Journal

Volumn 108, Issue 6, 1999, Pages 1163-1221

  Heller, Michael A ^a  

^a NONE

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EID: 0000259630     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: 10.2307/797326     Document Type: Article

References (315)

1. 8 THE PAPERS OF THOMAS JEFFERSON 682 (Julian P. Boyd ed., 1953).
2. This Article focuses on resources usually exchanged through markets, rather than on resources such as human bodies or political votes, for which commodification is even more contested or rejected. See Susan Rose-Ackerman, Inalienability and the Theory of Property Rights, 85 COLUM. L. REV. 931, 932 (1985) ("[S]ome forms of inalienability . . . have valid public policy justifications in a democratic market society."). See generally Margaret Jane Radin, Property and Personhood, 34 STAN. L. REV. 957 (1982) (developing an anti-commodification theory).
3. This Article focuses on resources usually exchanged through markets, rather than on resources such as human bodies or political votes, for which commodification is even more contested or rejected. See Susan Rose-Ackerman, Inalienability and the Theory of Property Rights, 85 COLUM. L. REV. 931, 932 (1985) ("[S]ome forms of inalienability . . . have valid public policy justifications in a democratic market society."). See generally Margaret Jane Radin, Property and Personhood, 34 STAN. L. REV. 957 (1982) (developing an anti-commodification theory).
4. See, e.g., Phillips v. Washington Legal Found., 118 S. Ct. 1925, 1934 (1998) (holding that interest accrued in a lawyer's trust account is the client's property, even though the amount involved is so small as to have no net economic value to the client); Hodel v. Irving, 481 U.S. 704, 717 (1987) (holding the "right to devise" low-value fractionated Native American allotted lands to be private property); see also Michael A. Heller & James E. Krier, Deterrence and Distribution in the Law of Takings, 112 HARV. L. REV. 997 (1999) (challenging the Court's approach in Phillips and Model).
5. Promoting efficient market exchange is not the only purpose of any property rights system or of takings jurisprudence. Justificatory debates always lurk in the background of property analysis, but they fall outside the explicit focus of this Article. See, e.g., Phillips, 118 S. Ct. at 1933 (noting the Court's "longstanding recognition that property is more than economic value"); JEREMY WALDRON, THE RIGHT TO PRIVATE PROPERTY (1988) (exploring justifications for private property).
6. The market failure problem is asymmetric. If a government allows too little fragmentation, then fixing public policy may be enough: Owners can subdivide property through market exchanges. However, once a government allows too much fragmentation, bargaining failures may prevent market consolidation. See, e.g., Michael A. Heller & Rebecca S. Eisenberg, Can Patents Deter Innovation? The Anticommons in Biomedical Research, 280 SCIENCE 698 (1998) (arguing that mistakes in biomedical patent policy may create too many fragmented rights and result in too few life-saving innovations).
7. This Article will follow the colloquial usage of "rights to use" and "rights to exclude." The Hohfeldian privilege/right terminology is more precise but obtuse. It offers little additional analytical traction in this context. See WESLEY NEWCOMB HOHFELD, FUNDAMENTAL LEGAL CONCEPTIONS AS APPLIED IN JUDICIAL REASONING AND OTHER LEGAL ESSAYS 96-97 (Walter Wheeler Cook ed., 1923).
8. See Garrett Hardin, The Tragedy of the Commons, 162 SCIENCE 1243, 1244-45 (1968) (introducing the metaphor of the "tragedy").
9. Anticommons property is most easily understood as the mirror image of commons property. Readers unfamiliar with the idea of the anticommons should skip ahead to Section III.B for a brief introduction or see Michael A. Heller, The Tragedy of the Anticommons: Property in the Transition from Marx to Markets, 111 HARV. L. REV. 621, 622-25 (1998), which introduces the anticommons as a new tool for property theory. See also id. at 667-68 (tracing the anticommons idea to Frank I. Michelman, Ethics, Economics and the Law of Property, in NOMOS XXIV: ETHICS, ECONOMICS, AND THE LAW 3 (1982)).
10. Anticommons property is most easily understood as the mirror image of commons property. Readers unfamiliar with the idea of the anticommons should skip ahead to Section III.B for a brief introduction or see Michael A. Heller, The Tragedy of the Anticommons: Property in the Transition from Marx to Markets, 111 HARV. L. REV. 621, 622-25 (1998), which introduces the anticommons as a new tool for property theory. See also id. at 667-68 (tracing the anticommons idea to Frank I. Michelman, Ethics, Economics and the Law of Property, in NOMOS XXIV: ETHICS, ECONOMICS, AND THE LAW 3 (1982)).
11. The contours of these ownership forms shift subtly with legal, social, and technological changes. Changes in formal law and informal institutions interact in unpredictable ways to affect property boundaries. See, e.g., Lisa Bernstein, Opting out of the Legal System: Extralegal Contractual Relations in the Diamond Industry, 21 J. LEGAL STUD. 115 (1992) (discussing the connections between formal law and informal norms among diamond merchants).
12. A full-exclusion anticommons occurs relatively infrequently in mature property rights systems. See Heller, supra note 8, at 667-69. The category of limited-exclusion anticommons property provides more salient examples.
13. See Carol M. Rose, The Several Futures of Property: Of Cyberspace and Folk Tales, Emissions Trades and Ecosystems, 83 MINN. L. REV. 129, 129-33 (1998) (identifying a range of limited-access commons regimes).
14. Rose argues that the future of property theory appears in limited-access commons regimes with complex internal governance rules. See id. at 132. I agree, but would add that limited-exclusion anticommons regimes may pose even more vexing boundary opportunities and problems for legislators, courts, and theorists. In conversation with colleagues, I have learned that examples of limited-exclusion anticommons property are numerous: Sam Issacharoff notes bottlenecks in microchip production; Howell Jackson suggests attention to demutualization in the savings-and-loan and insurance industries; Jeff Lehman identifies examples in asset securitization, real estate investment trusts, and the Superfund program.
15. Consider two people who are tenants in common of a farm - each cotenancy is itself private property. To avoid overuse when owners' preferences conflict, property law interposes a nonwaivable "right to partition." See JOHN E. CRIBBET & CORWlN W. JOHNSON, PRINCIPLES OF THE LAW OF PROPERTY 114 (1989) (discussing partition). However, when too many co-owners share a farm, physical "partition in kind" can lead to uneconomically small lots and underuse. Judges prevent underuse by favoring "partition by sale" over "partition in kind," by dividing money rather than land among co-owners. See, e.g., Johnson v. Hendrickson, 24 N.W.2d 914, 916 (1946) ("[Division of this quarter section of land . . . into four or more separate tracts would materially depreciate its value, both as to its salability and as to its use for agricultural purposes.").
16. As Michelman notes, the conventional definition of private property requires that the rules "must allow that at least some objects of utility or desire can be fully owned by just one person. To be a 'full owner' of something is to have complete and exclusive rights . . . over it." Michelman, supra note 8, at 5.
17. Sole ownership is an ideal type, never reached in practice. Wherever the term appears in this Article, it always assumes a thicket of restrictions limiting absolute dominion. See generally Robert W. Gordon, Paradoxical Property, in EARLY MODERN CONCEPTIONS OF PROPERTY 95, 95 (John Brewer & Susan Staves eds., 1995) [hereinafter EARLY MODERN CONCEPTIONS] (discussing the restrictions present in Blackstone's time); Carol M. Rose, Canons of Property Talk, or, Blackstone's Anxiety, 108 YALE L.J. 601, 603 (1998) ("Blackstone himself was thoroughly aware of [the] pervasive and serious qualifications on exclusive dominion."). Water is equally a fundamental resource, but it is usually embedded in a limited-access commons regime. See id. at 625; see also Carol M. Rose, Property as the Keystone Right?, 71 NOTRE DAME L. REV. 329, 351 (1996) (comparing the effects of land and water metaphors on property law). Perhaps sole ownership emerged as the private property paradigm because of land's status as "the central metaphor for property itself." Rose, supra note 11, at 136.
18. Sole ownership is an ideal type, never reached in practice. Wherever the term appears in this Article, it always assumes a thicket of restrictions limiting absolute dominion. See generally Robert W. Gordon, Paradoxical Property, in EARLY MODERN CONCEPTIONS OF PROPERTY 95, 95 (John Brewer & Susan Staves eds., 1995) [hereinafter EARLY MODERN CONCEPTIONS] (discussing the restrictions present in Blackstone's time); Carol M. Rose, Canons of Property Talk, or, Blackstone's Anxiety, 108 YALE L.J. 601, 603 (1998) ("Blackstone himself was thoroughly aware of [the] pervasive and serious qualifications on exclusive dominion."). Water is equally a fundamental resource, but it is usually embedded in a limited-access commons regime. See id. at 625; see also Carol M. Rose, Property as the Keystone Right?, 71 NOTRE DAME L. REV. 329, 351 (1996) (comparing the effects of land and water metaphors on property law). Perhaps sole ownership emerged as the private property paradigm because of land's status as "the central metaphor for property itself." Rose, supra note 11, at 136.
19. Sole ownership is an ideal type, never reached in practice. Wherever the term appears in this Article, it always assumes a thicket of restrictions limiting absolute dominion. See generally Robert W. Gordon, Paradoxical Property, in EARLY MODERN CONCEPTIONS OF PROPERTY 95, 95 (John Brewer & Susan Staves eds., 1995) [hereinafter EARLY MODERN CONCEPTIONS] (discussing the restrictions present in Blackstone's time); Carol M. Rose, Canons of Property Talk, or, Blackstone's Anxiety, 108 YALE L.J. 601, 603 (1998) ("Blackstone himself was thoroughly aware of [the] pervasive and serious qualifications on exclusive dominion."). Water is equally a fundamental resource, but it is usually embedded in a limited-access commons regime. See id. at 625; see also Carol M. Rose, Property as the Keystone Right?, 71 NOTRE DAME L. REV. 329, 351 (1996) (comparing the effects of land and water metaphors on property law). Perhaps sole ownership emerged as the private property paradigm because of land's status as "the central metaphor for property itself." Rose, supra note 11, at 136.
20. PAUL GOLDSTEIN, PROPERTY 605 (1985).
21. The economic aspect of the "boundary principle" may be most readily defined by reference to Michelman's description of "constraints on decomposition" in private property regimes. See Michelman, supra note 8, at 15-20. As often happens, Michelman's theoretical lead is precise and indispensable. Nevertheless, the idea of "constraints on decomposition" suggests the mechanism but not the effect or real world extent of the boundary principle. See infra Section III.C (discussing and distinguishing Michelman's theory).
22. Competing goals could range from libertarian to redistributive. See, e.g., Richard A. Epstein, Notice and Freedom of Contract in the Law of Servitudes, 55 S. CAL. L. REV. 1353, 1359 (1982) (rejecting boundary rules because they impose a "collective vision" that limits owners' ability to further values they prefer); Hanoch Dagan, Takings and Distributive Justice, 85 VA. L. REV. (forthcoming Sept. 1999) (exploring distributive justice perspectives on takings law). I do not mean to give short shrift in this Article to the many social values that may underlie fragmentation rules. On the contrary, I hope that pointing out the conflicting understandings of efficiency embedded in the common law and in the Court's takings jurisprudence will encourage judges and commentators to focus more precisely on what these social values are and on how much they are worth to us. If I am right, then the economically-minded members of the Court cannot simultaneously: (1) hold to a view celebrating the common law as a repository of efficient solutions to complex problems; and (2) believe that private property is simply a bundle of entitlements that owners should be able to chop up as they please.
23. Competing goals could range from libertarian to redistributive. See, e.g., Richard A. Epstein, Notice and Freedom of Contract in the Law of Servitudes, 55 S. CAL. L. REV. 1353, 1359 (1982) (rejecting boundary rules because they impose a "collective vision" that limits owners' ability to further values they prefer); Hanoch Dagan, Takings and Distributive Justice, 85 VA. L. REV. (forthcoming Sept. 1999) (exploring distributive justice perspectives on takings law). I do not mean to give short shrift in this Article to the many social values that may underlie fragmentation rules. On the contrary, I hope that pointing out the conflicting understandings of efficiency embedded in the common law and in the Court's takings jurisprudence will encourage judges and commentators to focus more precisely on what these social values are and on how much they are worth to us. If I am right, then the economically-minded members of the Court cannot simultaneously: (1) hold to a view celebrating the common law as a repository of efficient solutions to complex problems; and (2) believe that private property is simply a bundle of entitlements that owners should be able to chop up as they please.
24. Fairy tales are always a risky source for legal analogy. On the other hand, a recent Lexis search revealed 199 legal articles relying on Humpty Dumpty. In this, his 200th appearance, Humpty Dumpty can convey the fragility of private property and the difficulty of rebundling fragments: It is easier to make an omelet out of an egg than an egg out of an omelet. Perhaps Goldilocks (in her 42nd appearance) could also serve as an organizing fairy tale: To function well, private property must be structured "just right," without too many competing users or excluders. As an aside, Lexis reveals that law professors venture scientific analogies rather less often. Only a handful of articles, for example, explore the metaphoric possibilities of the Second Law of Thermodynamics. This Law could be read to suggest that fragmenting private property past an equilibrium range may irreversibly dissipate its productive force.
25. See Michelman, supra note 8, at 15-16.
26. This Part streamlines the discussion by focusing on the anticommons side of the property continuum. Boundary rules on the commons side are equally complex. See, e.g., RESTATEMENT (SECOND) OF TORTS § 850A (1979) (discussing the "reasonable use" doctrine for riparian owners of a watercourse); 2 AMERICAN LAW OF PROPERTY 750-55 (A. James Casner ed., 1952) [hereinafter ALP] (discussing "unitization" as one of several methods for correlating oil field ownership interests). Moreover, to limit the need for background explanations, this Part illustrates how boundary rules operate by using familiar property doctrines rather than the more intricate environmental or corporate law examples alluded to earlier.
27. See BRUCE A. ACKERMAN, PRIVATE PROPERTY AND THE CONSTITUTION 98-100 (1977) (discussing the layperson's view of property as thing-ownership); Thomas C. Grey, The Disintegration of Property, in NOMOS XXII: PROPERTY 69, 69 (1980) (distinguishing thing- ownership and bundle-of-rights metaphors). Even after Ackerman's book, the "thingness" of property plays an underappreciated role in property theory.
28. See BRUCE A. ACKERMAN, PRIVATE PROPERTY AND THE CONSTITUTION 98-100 (1977) (discussing the layperson's view of property as thing-ownership); Thomas C. Grey, The Disintegration of Property, in NOMOS XXII: PROPERTY 69, 69 (1980) (distinguishing thing-ownership and bundle-of-rights metaphors). Even after Ackerman's book, the "thingness" of property plays an underappreciated role in property theory.
29. See Leo Sheep Co. v. United States, 440 U.S. 668, 672-73 (1979) (discussing the use of large-scale "checkerboard" land grants to spur railroad development). Self-interest is the most powerful mechanism that prevents downward checkerboarding; no single legal rule does so. See generally Heller, supra note 8, at 682-84 (discussing the Quaker Oats Big Inch Land Giveaway); Michelman, supra note 8, at 9, 35 n.14 (noting that property law permits checkerboard ownership even at the square centimeter level, though such ownership tends towards economic inconvenience).
30. In the early common law, feudal ownership of real property consisted of personal as well as economic relationships. See A.W.B. SIMPSON, LAND OWNERSHIP AND ECONOMIC FREEDOM (forthcoming 1999) (manuscript at 21, on file with author) ("It was all very like Chicago in the days of Al Capone, when Capone's henchmen were installed in various profitable enterprises in return for an obligation to rub out rivals whenever instructed to do so. In return, Al Capone provided them with various forms of protection . . . .").
31. See id; see also A.W.B. SIMPSON, A HISTORY OF THE LAND LAW 47-102 (2d ed. 1986) (detailing the origins of the fee simple in England).
32. See SIMPSON, supra note 24 (manuscript at 21).
33. For a further discussion of the Statute Quia Empiores, see CRIBBET & JOHNSON, supra note 13, at 143-49.
34. See SIMPSON, supra note 24 (manuscript at 22) ("In so far as the early feudal world resembled Al Capone's Chicago, alienation, if it involved substituting one henchman for another, would obviously require Capone's consent. . . . But Quia Emptores Terrarum permitted and indeed required such substitution, and deprived lords of any power to prevent it.").
35. See id.
36. See id. By mandating that the eldest son inherited all of his father's land, primogeniture kept an identifiable person available to carry the burden of feudal services and incidents. The younger children received non-estate "portions." Susan Staves, Resentment or Resignation? Dividing the Spoils Among Daughters and Younger Sons, in EARLY MODERN CONCEPTIONS, supra note 15, at 194, 194-99.
37. See GREGORY S. ALEXANDER, COMMODITY & PROPRIETY: COMPETING VISIONS OF PROPERTY IN AMERICAN LEGAL THOUGHT, 1776-1970, at 37-41 (1997).
38. In the many states with modern "elective share" statutes, a surviving spouse may elect to take a statutory share, usually one-half or one-third, of all the decedent's real and personal property. LAWRENCE W. WAGGONER ET AL., FAMILY PROPERTY LAW 526-34 (2d ed. 1997) (discussing conventional elective share law and the 1990 Uniform Probate Code's redesigned elective share); JESSE DUKEMINIER & JAMES E. KRIER, PROPERTY 400-02 (3d ed. 1993); see JESSE DUKEMINIER & STANLEY M. JOHANSON, WILLS, TRUSTS, AND ESTATES 388-402 (4th ed. 1990). Rules governing dower and curtesy also can have similar consolidating effects. See id. at 375-77.
39. In the many states with modern "elective share" statutes, a surviving spouse may elect to take a statutory share, usually one-half or one-third, of all the decedent's real and personal property. LAWRENCE W. WAGGONER ET AL., FAMILY PROPERTY LAW 526-34 (2d ed. 1997) (discussing conventional elective share law and the 1990 Uniform Probate Code's redesigned elective share); JESSE DUKEMINIER & JAMES E. KRIER, PROPERTY 400-02 (3d ed. 1993); see JESSE DUKEMINIER & STANLEY M. JOHANSON, WILLS, TRUSTS, AND ESTATES 388-402 (4th ed. 1990). Rules governing dower and curtesy also can have similar consolidating effects. See id. at 375-77.
40. In the many states with modern "elective share" statutes, a surviving spouse may elect to take a statutory share, usually one-half or one-third, of all the decedent's real and personal property. LAWRENCE W. WAGGONER ET AL., FAMILY PROPERTY LAW 526-34 (2d ed. 1997) (discussing conventional elective share law and the 1990 Uniform Probate Code's redesigned elective share); JESSE DUKEMINIER & JAMES E. KRIER, PROPERTY 400-02 (3d ed. 1993); see JESSE DUKEMINIER & STANLEY M. JOHANSON, WILLS, TRUSTS, AND ESTATES 388-402 (4th ed. 1990). Rules governing dower and curtesy also can have similar consolidating effects. See id. at 375-77.
41. See DUKEMINIER & KRIER, supra note 32, at 200-01.
42. In places such as 19th-century Ireland, families starved, each on their dispersed plots, in part because land often became too fragmented to support sustainable agriculture. See Cynthia E. Smith, Comment, The Land-Tenure System in Ireland: A Fatal Regime, 76 MARQ. L. REV. 469, 481-83 (1993). Working in rural Bangladesh during the late 1980s, I noticed the identical problem, with people still living under feudal arrangements and starving because plots and rights had become so intricately fragmented that many families could not assemble viable farms.
43. See SIMPSON, supra note 24 (manuscript at 30-32). As Simpson notes, the widespread use of these Acts "reflect[s] the belief that rapid economic development is not compatible with too strong respect for the individual autonomy of the landowner. . . . In a sense the legal system enhanced the positive economic freedom of entrepreneurs at the cost of diminishing the negative freedom of individual property owners." Id. at 32.
44. See Frank A. Sharman, An Introduction to the Enclosure Acts, 10 J. LEGAL HIST. 45, 47-50 (1989).
45. See SIMPSON, supra note 24 (manuscript at 18-19); see also id. at 303 n.24, 304 n.58 (collecting and evaluating the sources); Robert C. Ellickson, Property in Land, 102 YALE L.J. 1315, 1392 nn.386-90 (1993) (compiling and assessing sources); cf. J.M. NEESON, COMMONERS; COMMON RIGHT, ENCLOSURE AND SOCIAL CHANGE IN ENGLAND, 1700-1820 (1993) (arguing that the inefficiency of the old system has been exaggerated).
46. See SIMPSON, supra note 24 (manuscript at 18-19); see also id. at 303 n.24, 304 n.58 (collecting and evaluating the sources); Robert C. Ellickson, Property in Land, 102 YALE L.J. 1315, 1392 nn.386-90 (1993) (compiling and assessing sources); cf. J.M. NEESON, COMMONERS; COMMON RIGHT, ENCLOSURE AND SOCIAL CHANGE IN ENGLAND, 1700-1820 (1993) (arguing that the inefficiency of the old system has been exaggerated).
47. According to Ellickson, "the events of [the] enclosure movement illustrate how land rights may become 'excessively decomposed.' When a group is stymied by large-number coordination problems, it is possible that a state or other higher authority may usefully intervene to facilitate modernization." Ellickson, supra note 37, at 1392 (citation omitted).
48. See Steven C. Bahls, Preservation of Family Farms - The Way Ahead, 45 DRAKE L. REV. 311, 327 (1997) ("Farms and ranches are now measured in thousand acre increments in eastern Montana, unlike the old 320 acre measurement of a homestead. . . . As one passes the many abandoned small homesteads and ghost towns, one cannot help but wonder what it would have cost society to preserve these thousands of homesteads as viable economic units."). In Montana, full ownership required working the land for a practically unattainable number of years. See An Act To Secure Homesteads to Actual Settlers on the Public Domain, 12 Stat. 392 (1862) (codified as amended at 43 U.S.C, § 161) (repealed 1976).
49. See Bahls, supra note 39, at 327.
50. These regulations may be primarily revenue-driven efforts to ensure that newcomers are overall contributors to, rather than net consumers of, local government services. See Richard Briffault, Our Localism: Part I-The Structure of Local Government Law, 90 COLUM. L. REV. 1, 49-50 (1990) (discussing local governments' incentives to engage in fiscal zoning).
51. See, e.g.. Rick v. West, 228 N.Y.S.2d 195 (Sup. Ct. 1962).
52. See. e.g., Southern Burlington County NAACP v. Township of Mount Laurel, 336 A.2d 713 (N.J. 1975); Robert C. Ellickson, Suburban Growth Controls: An Economic and Legal Analysis, 86 YALE L.J. 385 (1977).
53. For an account of the difficulties of land assembly in New York, see ANDREW ALPERN & SEYMOUR DURST, HOLDOUTS! (1984).
54. See Heller, supra note 8, at 683 ("[T]he requirements that owners incur the costs of registering title and paying property taxes, and the subsequent escheat of the land for failure to do so, function[ ] as powerful mechanisms to return the low-value [fragments] to a bundle of usable private property.").
55. 43 U.S.C. §§ 1701-1784 (1994).
56. See United States v. Locke, 471 U.S. 84 (1985) (upholding the constitutionality of FLPMA against a takings claim).
57. Id. at 86-87.
58. See Heller, supra note 8, at 682-84 (arguing that registration fees consolidated ownership in the area of the Big Inch Land Giveaway).
59. See ACKERMAN, supra note 22, at 97-100.
60. See generally id. at 166 (discussing intangible property as a locus of economic value).
61. See id.
62. See Heller & Eisenberg, supra note 5, at 700 (discussing the possibility of increasing the threshold of the utility requirement as a way to prevent the anticommons problem resulting from the patenting of anonymous gene fragments).
63. See id. at 699-700.
64. Future commercial products will more likely require the use of larger pieces of DNA, such as those that encode full-length genes. See id. at 699.
65. See id.
66. See id. at 701.
67. See Robert P. Merges, Contracting into Liability Rules: Intellectual Property Rights and Collective Rights Organizations, 84 CAL. L. REV. 1293 (1996); cf. Heller & Eisenberg, supra note 5, at 700 (questioning the conditions under which such institutions may emerge in the biomedical research area).
68. See Merges, supra note 58, at 1328-40.
69. See id. at 1340-47.
70. Compared with patent law, copyright law's tragedy of the anticommons is less costly. The "fair use" doctrine means that copyright holders do not have the right to exclude nonowners from low-intensity uses of protected works. For more intensive uses, the gains from use provide economic rents that support the transaction costs of acquiring licenses. Though fair use reduces underuse, some underuse remains because of transaction costs and because copyright holders, who are not perfectly discriminating monopolists, charge a positive price for a zero marginal cost use.
71. Bernard Rudden, Economic Theory v. Property Law: The Numerus Clausus Problem, in OXFORD ESSAYS ON JURISPRUDENCE 239, 242 (John Eekelaar & John Bell eds., 3d ed. 1987). In Blackstone's time, the numerus clausus was much more numerous, populated with incorporeal hereditaments such as corodies and advowdsons that no longer exist. See SIMPSON, supra note 25, at 106-07, 121-22 (discussing these and other ancient forms of property). Over time, these forms were pared down to the streamlined list that exists today. Now, the list may be growing again with innovations such as condominiums and time shares.
72. See Michelman, supra note 8, at 15 (noting that private property "abounds in restrictions on decomposition of titles . . . : restrictive doctrines regarding easements in gross, perpetuities, covenants running with the land, restraints on alienation, duration of cotenancies, 'novel' easements and estates, to name just some of the pertinent technicalities of the land law" (footnotes omitted)).
73. Rudden notes: "In all 'non-feudal' systems with which I am familiar (whether earlier, as at Rome, or later), the pattern is (in very general terms) similar: there are less than a dozen sorts of property entitlements." Rudden, supra note 62, at 241. Through contracts, an entrepreneur can combine the basic forms of the numerus clausus into more complex legal objects such as modern financial derivatives or real estate investment trusts.
74. Id. at 261.
75. See id. at 245-60. For example, each new estate with its attendant incidents and duties imposes social costs for those who are trying to figure out what they own. Standardized estates give land more value because they reduce the costs of transacting over land. See id. at 253-54.
76. Id. at 259.
77. See SIMPSON, supra note 24 (manuscript at 36) ("The ideal function of the entail was to preserve a family landowning territory as a single block, and pass it down the male line of a family ad infinitum."); SIMPSON, supra note 25, at 81-102 (detailing the technicalities). The Statute de Donis Conditionabilis of 1285 permitted what became known as the fee tail. 13 Edw., ch. 1 (Eng.). Within 200 years, common-law courts created mechanisms to defeat the entail. See CRIBBET & JOHNSON, supra note 13, at 49 (discussing techniques for defeating the entail).
78. Tenants holding in tail could block the execution of long leases, mortgages, and other productivity-enhancing uses of land. In the early 19th-century American context, James Kent acknowledged that "the desire to preserve and perpetuate family influence and property is very-prevalent in mankind, and is deeply seated in the human affections." but then proceeded to criticize the fee tail's unintended consequences for productivity. 4 KENT, COMMENTARIES ON AMERICAN LAW 19, cited in ALEXANDER, supra note 31, at 146.
79. See SIMPSON, supra note 24 (manuscript at 36). The common law developed mechanisms such as the fictitious lawsuit of the common recovery to bar lhe entail and, finally, in the 19th century, gave the tenant in tail the power to convey a fee simple to another by deed. See id. Today the fee tail has been, for the most part, abolished or severely limited in its effect. The few U.S. states that still recognize the fee tail construe it to limit the period during which the estate is fragmented. See DUKEMINlER & KRIER, supra note 32, at 213-14.
80. See A.W.B. SIMPSON, LEGAL THEORY AND LEGAL HISTORY: ESSAYS ON THE COMMON LAW 144-62 (1987) (contrasting the English and Scottish entails).
81. New forms of negative easements, such as conservation easements, may qualify as a recent American addition to the numerus clausus. See Andrew Dana & Michael Ramsey, Conservation Easements and the Common Law, 8 STAN. ENVTL. L.J. 2 (1989). When such servitudes are cast in covenant form, under the common law the burden will not run if the benefit is in gross, which is the usual case. In response, states have authorized conservation easements by statute. See DUKEMINIER & KRIER, supra note 32, at 901-02.
82. A recent continuation of an old debate considers the extent to which the trust is properly part of contract or property law. Compare Henry Hansmann & Ugo Mattei, The Functions of Trust Law: A Comparative Legal and Economic Analysis, 73 N.Y.U. L. REV. 434, 469-72 (1998) (arguing that the trust is a distinct property institution because of its effects on third-party creditors), with John H. Langbein, The Contractarian Basis of the Law of Trusts, 105 YALE L.J. 625, 646-47 (1995) (arguing that the trust is functionally indistinguishable from modern third- party beneficiary contracts).
83. A recent continuation of an old debate considers the extent to which the trust is properly part of contract or property law. Compare Henry Hansmann & Ugo Mattei, The Functions of Trust Law: A Comparative Legal and Economic Analysis, 73 N.Y.U. L. REV. 434, 469-72 (1998) (arguing that the trust is a distinct property institution because of its effects on third-party creditors), with John H. Langbein, The Contractarian Basis of the Law of Trusts, 105 YALE L.J. 625, 646-47 (1995) (arguing that the trust is functionally indistinguishable from modern third-party beneficiary contracts).
84. While the common law has accepted the trust form, civil-law regimes still find the trust controversial and have yet to admit it to the numerus clausus. See Hansmann & Mattei, supra note 73, at 442.
85. See Gregory S. Alexander, The Dead Hand and the Law of Trusts in the Nineteenth. Century, 37 STAN. L. REV. 1189, 1189 n.l (1985) (identifying the "consolidation form" shaping trust law).
86. In 1925, England abolished legal future interests in favor of the trust. See C. Dent Bostick, Loosening the Grip of the Dead Hand: Shall We Abolish Legal Future Interests in Land?, 32 VAND. L. REV. 1061, 1090-97 (1979). While the continued existence of legal future interests in the United States poses knotty problems for law students, such interests no longer impose significant costs upon lawyers because of flexible alternatives in modern trust law.
87. See Hansmann & Mattei, supra note 73, at 466-69.
88. Three archaic rales - the Rule in Shelley's Case, the Doctrine of Worthier Title, and the Destructibility of Contingent Remainders - prevented an owner from adopting certain feudal taxavoiding techniques of fragmenting land between a current user and an unascertained future owner. See DUKEMINIER & KRIER, supra note 32, at 242-47.
89. This rule limits the period of time during which an owner can fragment property and limits the grantor's ability to impede future productive use. See 6 ALP, supra note 21, § 26.2. The period is generally defined as lives in being at the time of the creation of the interest plus 21 years. See JOHN CHIPMAN GRAY, THE RULE AGAINST PERPETUITIES § 201 (4th ed. 1942).
90. For example, in this vein, Lewis Simes, in his Thomas Cooley lectures at the University of Michigan, noted that the Rule "strikes a fair balance between the desires of members of the present generation, and similar desires of succeeding generations, to do what they wish with the property which they enjoy." LEWIS M. SIMES, PUBLIC POLICY AND THE DEAD HAND 58 (1955). Simpson is critical of these types of justifications: Modem textbooks as well as historical works tend to portray the law of real property as a body of law which has zealously protected the power of free alienation of land, and the Rule Against Perpetuities (and associated doctrines) as an effective curb against attempts to destroy this power in landowners. SlMPSON, supra note 25, at 241; see also SIMPSON, supra note 71, at 159-60. In contrast to Simes, Simpson argues that the function of the rule was to regulate a system of gift giving whose primary function was ensuring that a family retained a permanent endowment. . . . The intermittent freedom to dispose of the fee simple which the system conferred was indeed not usually employed to place family lands on the market, but merely to resettle them as seemed appropriate and tie them up for another generation. SIMPSON, supra note 24 (manuscript at 37).
91. As Sterk notes, "individual present and future estates in land could be made freely alienable. In fact, the rule itself restricts alienability only by prohibiting certain methods of alienation." Stewart E. Sterk, Freedom from Freedom of Contract: The Enduring Value of Servitude Restrictions, 70 IOWA L. REV. 615, 639 (1985).
92. See, e.g., GOLDSTEIN, supra note 16, at 474. Jeffery Stake agrees and elaborates: [T]he Rule's tendency to aggregate rights should lead to improved allocation of assets for two reasons. First, the costs of disaggregation and aggregation are asymmetrical. It is comparatively easy to divide the bundle of rights if divided rights would generate more wealth than would a single fee simple. Conversely, due to the problems of locating multiple holders and the possibilities of strategic bargaining such as holding out, it is much more costly to reaggregate rights if a fee simple would generate more wealth. Since private transactions are thus more difficult in one direction than private transactions going the other way, the Rule can be expected to reduce transaction costs by leaving the parties in the position that is more easily changed. . . . Second, there is empirical evidence that the packages of rights resulting from the operation of the Rule are more desirable to the market than the packages intended by the transferor. Jeffrey E. Stake, Darwin, Donations, and the Illusion of Dead Hand Control, 64 TUL. L. REV 705, 723 (1990).
93. See 6 ALP, supra note 21, § 26.2 (noting the "balancing of social interests" involved in the RAP).
94. Mark J. Roe, Chaos and Evolution in Law and Economics, 109 HARV. L. REV. 641, 651-52 (1996).
95. Lost perhaps to most readers, but not to Brian Simpson or to George Haskins. See SIMPSON, supra note 71, at 159; George Haskins, Extending the Grasp of the Dead Hand: Reflections on the Origins of the Rule Against Perpetuities, 126 U. PA. L. REV. 19 (1977) (arguing that the Rule emerged as a compromise that allowed old dynasties to keep land tied up for long periods of time while responding to the desires of the new rich to have land released from old family settlements).
96. Modern RAPs translate the common law limits into various forms (wait-and-see or 90 years) but keep intact the basic point that an owner cannot fragment rights too much for too long. See RESTATEMENT (SECOND) OF PROPERTY: DONATIVE TRANSFERS § 1.4 (1983).
97. ALEXANDER, supra note 31, at 118-21.
98. See Lawrence W. Waggoner, The Uniform Statutory Rule Against Perpetuities: The Rationale of the 90-Year Waiting Period, 73 CORNELL L. REV. 157 (1988).
99. See DUKEMINIER & KRIER, supra note 32 at 316 (noting the four states that have abolished the Rule, though these states nevertheless require that the property be held in trust and that trustees have the power to sell the trust assets); WAGGONER ET AL., supra note 32, at 1162.
100. Abolishing the RAP can have unexpected consequences. For example, the federal generation-skipping tax (GST) contains a $1 million exemption ($2 million per couple) that relies solely on state RAPs to police temporal fragmentation. In states that have abolished the RAP, people can now create true dynasty trusts - trusts that can, in principle, last forever - with ever-increasing numbers of potential beneficiaries. States are beginning to compete to attract the dynasty trust business. "This fledgling movement poses a disturbing threat to controlling the dead hand. Until Congress or the Treasury Department closes this loophole in the GST tax, the wealthy will continue to have an unbridled option of creating dynasty trusts." WAGGONER ET AL., supra note 32, at 1162.
101. See SIMPSON, supra note 71, at 159 (noting that "the contemporary oddity of the rule lies not in what it prevents, but in how much it allows").
102. Alternatively, as Sterk notes, possibilities of reverter and rights of entry could be characterized as interests that satisfy the RAP because they are vested at the time of creation. See Sterk, supra note 81, at 642. In either case, the RAP does not sweep away these interests, which could potentially remain viable for centuries as inchoate ownership fragments. By contrast, English statutory law makes these interests subject to the RAP. See DUKEMINIER & KRIER, supra note 32, at 299.
103. See id. at 238 (discussing the modern trend).
104. Alternatively, RAP violations can be avoided through the use of perpetuities-savings clauses. See WAGGONER ET AL., supra note 32, at 1128-34. Perpetuities-savings clauses do not, however, avoid the RAP's limits on temporal fragmentation.
105. See. e.g., MASS. ANN. LAWS eh. 184A, § 7 (Law. Co-op. 1987).
106. See LEWIS M. SIMES & ALLAN F. SMITH, THE LAW OF FUTURE INTERESTS § 1994, at 273-74 (2d ed. 1956); see also Sterk, supra note 81, at 642-43 nn.112-14 (collecting state statutes).
107. See SIMES & SMITH, supra note 96. § 1994, at 275.
108. See DUKEMINIER & KRIER, supra note 32, at 299 (citing cases).
109. See. e.g., UNIF. MARKETABLE TITLE ACT, 13 U.L.A. 112 (1990 & Supp. 1995) (establishing a statutory period of 30 years). See generally Walter E. Barnett, Marketable Title Acts-Panacea or Pandemonium?, 53 CORNELL L. REV. 45, 47, 52-60 (1967) (discussing these acts). In Texaco v. Short, 454 U.S. 516 (1982), the Supreme Court upheld a retroactive Indiana marketable title act that abolished unused mineral claims not re-recorded every 20 years. See id at. 518.
110. See ROBERT C. ELLICKSON, ORDER WITHOUT LAW: HOW NEIGHBORS SETTLE DISPUTES 15-103 (1991) (discussing several informal means employed by California ranchers to resolve disputes arising from wayward cattle); ELINOR OSTROM, GOVERNING THE COMMONS: THE EVOLUTION OF INSTITUTIONS FOR COLLECTIVE ACTION 182-85 (1990) (discussing sustainable informal management of commons resources); Carol Rose, The Comedy of the Commons: Custom, Commerce, and Inherently Public Property, 53 U. CHI. L. REV. 711, 739-49 (1986); Gary D. Libecap, Government Policies on Property Rights to Land: U.S. Implications for Agricultural Development in Mexico, 60 AGRIC. HIST., Winter 1986, at 32, 41-45 (describing efforts by the Navajo to prevent overgrazing on open ranges).
111. See ROBERT C. ELLICKSON, ORDER WITHOUT LAW: HOW NEIGHBORS SETTLE DISPUTES 15-103 (1991) (discussing several informal means employed by California ranchers to resolve disputes arising from wayward cattle); ELINOR OSTROM, GOVERNING THE COMMONS: THE EVOLUTION OF INSTITUTIONS FOR COLLECTIVE ACTION 182-85 (1990) (discussing sustainable informal management of commons resources); Carol Rose, The Comedy of the Commons: Custom, Commerce, and Inherently Public Property, 53 U. CHI. L. REV. 711, 739-49 (1986); Gary D. Libecap, Government Policies on Property Rights to Land: U.S. Implications for Agricultural Development in Mexico, 60 AGRIC. HIST., Winter 1986, at 32, 41-45 (describing efforts by the Navajo to prevent overgrazing on open ranges).
112. See ROBERT C. ELLICKSON, ORDER WITHOUT LAW: HOW NEIGHBORS SETTLE DISPUTES 15-103 (1991) (discussing several informal means employed by California ranchers to resolve disputes arising from wayward cattle); ELINOR OSTROM, GOVERNING THE COMMONS: THE EVOLUTION OF INSTITUTIONS FOR COLLECTIVE ACTION 182-85 (1990) (discussing sustainable informal management of commons resources); Carol Rose, The Comedy of the Commons: Custom, Commerce, and Inherently Public Property, 53 U. CHI. L. REV. 711, 739-49 (1986); Gary D. Libecap, Government Policies on Property Rights to Land: U.S. Implications for Agricultural Development in Mexico, 60 AGRIC. HIST., Winter 1986, at 32, 41-45 (describing efforts by the Navajo to prevent overgrazing on open ranges).
113. See ROBERT C. ELLICKSON, ORDER WITHOUT LAW: HOW NEIGHBORS SETTLE DISPUTES 15-103 (1991) (discussing several informal means employed by California ranchers to resolve disputes arising from wayward cattle); ELINOR OSTROM, GOVERNING THE COMMONS: THE EVOLUTION OF INSTITUTIONS FOR COLLECTIVE ACTION 182-85 (1990) (discussing sustainable informal management of commons resources); Carol Rose, The Comedy of the Commons: Custom, Commerce, and Inherently Public Property, 53 U. CHI. L. REV. 711, 739-49 (1986); Gary D. Libecap, Government Policies on Property Rights to Land: U.S. Implications for Agricultural Development in Mexico, 60 AGRIC. HIST., Winter 1986, at 32, 41-45 (describing efforts by the Navajo to prevent overgrazing on open ranges).
114. See Myres S. McDougal & John W. Brabner-Smith, Land Title Transfer: A Regression, 48 YALE L.J. 1125, 1126-29 (1939) (describing the "wild disorder" of the system of land title transfer as it existed in 1939 and quoting Professor John R. Rood's observation that "[t]he fact is that the path of the searcher for a safe title to land . . . is beset by more traps, sirens, harpies, and temptations, than ever plagued the wandering Ulysses, the faithful Pilgrim, or the investor in giltedged securities"). McDougal and Brabner-Smith fulminate: As he ploughs through the Joneses, Smiths, and Johnsons and through the deeds, mortgages, judgments, taxes, and mechanics' liens he can never be sure that he isn't missing something fatal to his title. Worse yet, all this laborious retracing of the tortuous path of title is perpetual motion. Every time the land is sold or mortgaged or subdivided-no matter into how small parts - it all has to be done over again . . . . Id. at 1127.
115. See DUKEMINIER & KRlER, supra note 32, at 722-23.
116. The underlying fragmentation may be efficient if the holder of the interests values them more than the burdened party is harmed by the costs of discovery and compliance. Title registration systems provide an alternative approach to handling fragmented ownership. The socalled Torrens system that originated in Australia and is used in small parts of the United States prevents hidden ownership interests. See John L. McCormack, Torrens and Recording: Land Title Assurance in the Computer Age, 18 WM. MITCHELLL. REV. 61, 70-73, 80-115 (1992) (describing and evaluating the Torrens system).
117. See Heller, supra note 8, at 663-64 n.192.
118. See EVAN MCKENZIE, PRIVATOPIA: HOMEOWNERS ASSOCIATIONS AND THE RISE OF RESIDENTIAL PRIVATE GOVERNMENT (1994) (projecting that 25% to 30% of Americans will live in homeowner associations by the year 2000). By allowing a new type of affordable home ownership, the popularization of common-interest community forms are among the great innovations in modern property law. Developers choose these forms in part because their internal governance structures solve coordination problems that were not solvable under the prior law of servitudes and in part because the rules circumvent constraints in the public regulatory regime. See generally Henry Hansmann, Condominium and Cooperative Housing: Transactional Efficiency Tax Subsidies, and Tenure Choice, 20 J. LEGAL STUD. 25 (1991) (discussing tax subsidies and organizational innovation as causes for the rise of condominium ownership).
119. See EVAN MCKENZIE, PRIVATOPIA: HOMEOWNERS ASSOCIATIONS AND THE RISE OF RESIDENTIAL PRIVATE GOVERNMENT (1994) (projecting that 25% to 30% of Americans will live in homeowner associations by the year 2000). By allowing a new type of affordable home ownership, the popularization of common-interest community forms are among the great innovations in modern property law. Developers choose these forms in part because their internal governance structures solve coordination problems that were not solvable under the prior law of servitudes and in part because the rules circumvent constraints in the public regulatory regime. See generally Henry Hansmann, Condominium and Cooperative Housing: Transactional Efficiency Tax Subsidies, and Tenure Choice, 20 J. LEGAL STUD. 25 (1991) (discussing tax subsidies and organizational innovation as causes for the rise of condominium ownership).
120. See generally Stewart E. Sterk, Minority Protection in Residential Private Governments, 77 B.U. L. REV. 273, 285-86 & n.44 (1997). For example, owners may decide to prevent each other from leasing units at all. A single owner may be able to benefit by dividing ownership among short-term renters, but will externalize costs on the community in the form of a decreased commitment to self-governance and increased costs of policing transience. As Sterk notes: "The two most common objections to transient occupants are: (1) financing for individual units is often difficult to obtain unless the development is substantially owner-occupied; and (2) renters, compared with owner-occupants, may have less incentive to observe association rules and to maintain the premises." Id. at 285 n.44. The minimal efficient scale of ownership in a condominium may require owner-occupiers rather than renters, given prevailing norms and governance structures.
121. See generally Ellen R. Peirce & Richard A. Mann, Time-Share Interests in Real Estate: A Critical Evaluation of the Regulatory Environment, 59 NOTRE DAME L. REV. 9, 11-28 (1983) (outlining various forms of time-share interests). In a typical example, a family might buy the right to use a particular unit for a particular week each year. Creating the time-share form involved disabling certain familiar boundary mechanisms, such as the unwaivable right to partition cotenancies. To mitigate the potential for a tragedy of the anticommons, time-shares typically contain a sunset clause that cashes out the interests after a fixed period - enforcing a global partition by sale - and recreates the underlying resource as a single object of private property. See id. at 17-20.
122. See Duncan Kennedy & Leopold Specht, Limited Equity Housing Cooperatives as a Mode of Privatization, in A FOURTH WAY? PRIVATIZATION, PROPERTY, AND THE EMERGENCE OF NEW MARKET ECONOMIES 267, 268 (Gregory S. Alexander & Grazyna Skapska eds., 1994); see also Heller, supra note 8, at 649-50 (discussing limited equity cooperatives).
123. "Good" and "bad" law are technical terms that appear from time to time in modern property theory. See, e.g., HERNANDO DE SOTO, THE OTHER PATH: THE INVISIBLE REVOLUTION IN THE THIRD WORLD 132 (1989) (defining good and bad law in economic terms).
124. See Robert C. Ellickson, Cities and Homeowner Associations, 130 U. PA. L. REV. 1519, 1527 (1982) (explaining the current status of governing documents and judicial interpretation of those documents). See generally Sterk, supra note 81 (discussing how governing documents can implicitly and explicitly create and limit association power).
125. See Sterk, supra note 81, at 644-56.
126. See UNIF. PLANNED COMMUNITY ACT § 52-118, 74 U.L.A. § 2-118 (Supp. 1981) (providing a statutory authorization for the modification of covenants by less than unanimous consent); cf. Susan F. French, Toward a Modern Law of Servitudes: Reweaving the Ancient Strands, 55 S. CAL. L. REV. 1261, 1317 (1982) (recommending that the change-of-circumstances doctrine apply to requests for modification of covenants).
127. See CRIBBET & JOHNSON, supra note 13, at 390 ("If all parties agree, they of course can modify covenants to accommodate new conditions. But this may be difficult to accomplish when there are many parties, as there are in the large subdivision or condominium. One dissenter can block change.").
128. See generally Susan F. French, The Constitution of a Private Residential Government Should Include a Bill of Rights, 27 WAKE FOREST L. REV. 345 (1992) (exploring legal dilemmas raised by CICs).
129. Rick Hills and I are working on an article in which we will explore whether a hidden cost of condominium regulations may be that people now block each other too much and waste some of the potential of resources held in condominium form.
130. See Lee Ross & C.A. Anderson, Shortcomings in the Attribution Process: On the Origins and Maintenance of Erroneous Social Assessment, in JUDGMENT UNDER UNCERTAINTY: HEURISTICS AND BIASES 129 (D. Kahneman et al., eds., 1982).
131. There may be countervailing community-reinforcing benefits from locking people together and forcing them to learn to deal with each other. Indeed, legal intervention may paradoxically be counterproductive by undermining the social capital that the community has created. SCP Richard H. Pildes, The Destruction of Social Capital Through Law, 144 U. PA. L. REV. 2055. 2067 (1996).
132. As John Cribbet and Corwin Johnson note: Drafters of real covenants and equitable servitudes, as well as other documents, often fail to address expressly events and circumstances that later occur. . . . One obvious approach is to allow modification upon approval by fewer than all of the parties. But even having to obtain approval by a simple majority of owners of lots might be unduly burdensome. CRIBBET & JOHNSON, supra note 13, at 389-90.
133. See, e.g., Jan Z. Krasnowiecki, Abolish Zoning, 31 SYRACUSE L. REV. 719, 719 (1980) (arguing that effective advance planning and zoning of communities is impossible).
134. Cf. Carol M. Rose, Planning and Dealing: Piecemeal Land Controls as a Problem of Local Legitimacy, 71 CAL. L. REV. 839, 892-93 (1983) (applauding the tendency of local variance boards to mediate disputes informally).
135. WILLIAM A. FISCHEL, REGULATORY TAKINGS: LAW, ECONOMICS, AND POLITICS 251 (1995). This discussion raises the difficult problem of scale. In a residential subdivision, each plot is ordinary private property, but collectively the community may be an anticommons if bargaining problems prevent agreement, say to convert the land to its most valuable use as a car factory. How practically should we distinguish anticommons fragments from ordinary private property? See infra Subsection IV.D.3 (discussing the problem of scale).
136. As few as two regulatory bodies may create this type of problem when they resist coordination. For example, after a lengthy process, Los Angeles gave a developer final approval to build. Then, the California Coastal Commission asserted jurisdiction over the same subject matter and stopped the development for two more years. The California Supreme Court recently denied the landowner's taking claim. See Landgate v. California Coastal Comm'n, 953 P.2d 1188 (Cal.), cert, denied, 119 S. Ct. 179 (1998). According to one account: The takings case began in 1990, when Landgate Inc. purchased what it believed to be a buildable lot in the hills of Malibu. . . . But when Landgate applied for a permit to build, the California Coastal Commission balked. The lot lines of Landgate's property, the commission noted, had never been approved by the commission and were thus illegal. As it happened, Los Angeles County . . . had signed off on a reconfiguration of the lot lines. . . . . . . Landgate appealed, and [the court concluded that the CCC] was motivated by an "ongoing jurisdictional spat" between itself and the county. Greg Mitchell, Supreme Court Airs Takings, DNA Admissibility, THE RECORDER, Feb. 11, 1998, at 1.
137. FlSCHEL, supra note 121, at 252.
138. As Joseph Vining notes: Unsympathetic smiles may be evoked by talk today of a concept of property or indeed a concept of anything. So accustomed are we to concentrating on reasons of policy and on the conclusory nature of legal categories that we tend to forget how channeled we are by nothing more than a conceptual structure. . . . Time and the complexity of things make it impossible to do otherwise. There are limits to the movement of our minds, shared boundaries for which there is no better name in legal analysis than "concepts" - conclusions that we could question but choose not to, premises for ordered thought and communication. Certainly analysis of property interests has had limits beyond which we have chosen not to stray. JOSEPH VINING, LEGAL IDENTITY: THE COMING OF AGE OF PUBLIC LAW 24 ( 1978).
139. Property boundaries could be defined along many dimensions. As used in
140. Berkey v. Third Ave. Ry., 155 N.E. 58,61 (N.Y. 1926).
141. See ALEXANDER, supra note 31, at 311-13. Alexander traces the evolution of these metaphors: After the beginning of the twentieth century, American legal intellectuals increasingly criticized the classical Blackstonian conception of property. . . . That conception ... they thought [was] both inaccurate and disingenuous - inaccurate because it wrongly suggested it was possible for one person to have absolute freedom in the use and control of his things; disingenuous because it hid from view the political function of property. Id. at 311.
142. See DUKEMlNIER & KRIER, supra note 32, at 86 (discussing the bundle of rights).
143. See Grey, supra note 22, at 69.
144. For criticism of the conventional historical view of a period of absolutist control over property, see Gordon, supra note 15, at 96, who observes: "What strikes the backward-looking observer as curious is simply this: that in the midst of such a lush flowering of absolute dominion talk in theoretical and political discourse, English legal doctrines should contain so very few plausible instances of absolute dominion rights."
145. See CRIBBET & JOHNSON, supra note 13, at 15; F. W. Maitland, The Mystery of Seisin, 2 L.Q. REV. 481 (1886).
146. 2 WILLIAM BLACKSTONE, COMMENTARIES *2. Blackstone's views were rather less absolute. Together with other lawyers and lay people of the day, Blackstone was aware of the limits to the physicalist idea of private property. See, e.g., 3 BLACKSTONE, supra at *212-15 (discussing the law of trespass); id. at *217-18 (stating that when an owner wants to do something vexing to a neighbor, "it is incumbent on him to find some other place to do that act, where it will be less offensive"); see also Rose, supra note 15, at 603 (discussing Blackstone's more nuanced conception of property); Ellickson, supra note 37, at 1362, n.237 ("Blackstone . . . would have admitted that his sentence . . . was hyperbolic. His treatise explicitly discussed, for example, a variety of legal privileges to enter private land without the owner's consent.").
147. See also 2 BLACKSTONE, supra note 132, at *20 (considering incorporeal hereditaments to be things despite awareness that "[t]heir existence is merely in idea and abstracted contemplation"); ALEXANDER, supra note 31, at 138-39 (explaining Blackstone's view that property included intangible interests and incorporeal hereditaments). As one commentator has noted, "'If you can think about something which is attached to something else without thinking about what it is attached to, then you have what is called a legal mind.'" Thurman W. Arnold, Criminal Attempts - The Rise and Fall of an Abstraction, 40 YALE L.J. 53, 58 (1930) (quoting Thomas Reed Powell).
148. In Board of Regents v. Roth, 408 U.S. 564 (1972), Justice Stewart wrote what has become the Court's paradigmatic position on finding the correct definition of property: "Property interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law . . . . " Id. at 577.
149. U.S. CONST. amend. V ("[N]or shall private property be taken for public use, without just compensation."). The Takings Clause is made applicable to the states through the Fourteenth Amendment. See Chicago, B. & Q. R.R. v. City of Chicago, 166 U.S. 226, 239 (1897). While the Constitution mentions "private property" once, it mentions "property" several other times, including the Due Process Clause of the Fifth Amendment, which reads "nor shall any person be . . . deprived of . . . property, without due process of law," U.S. CONST, amend. V, and Section 1 of the Fourteenth Amendment, which reads "nor shall any State deprive any person of . . . property, without due process of law," U.S. CONST, amend. XIV, § 1.
150. See, e.g., PruneYard Shopping Ctr. v. Robbins, 447 U.S. 74, 84 (1980) ("Nor as a general proposition is the United States, as opposed to the several States, possessed of residual authority that enables it to define 'property' in the first instance."); Annotation, 1 A.L.R. FED. 479, 482 (1969) (noting that courts refer to state law to define "property" in condemnation proceedings by the United States).
151. See William Michael Treanor, The Original Understanding of the Takings Clause and the Political Process, 95 COLUM. L. REV. 782, 782 (1995) ("The original understanding of the Takings Clause of the Fifth Amendment was clear on two points. The clause required compensation when the federal government physically took private property, but not when government regulations limited the ways in which property could be used.").
152. 99 U.S. 635 (1879).
153. Id. at 642.
154. 79 U.S. (12 Wall.) 457 (1871).
155. Id. at 551. Arguably, the earliest modification in the Court's approach came in Pumpetty v. Green Bay Co., 80 U.S. (13 Wall.) 166 (1872), in which a company acting under state authority flooded private land. The Court observed: "It would be a very curious and unsatisfactory result, if . . . it shall be held that if the government refrains from the absolute conversion of real property to the uses of the public it can destroy its value entirely . . . because, in the narrowest sense of that word, it is not taken for the public use." Id. at 177-78. The operative issue in Pumpetty may not have been economic value per se, but rather that the flooding worked "directly," by contrast with the Transportation Cases where it worked "indirectly." Pumpetty remained an anomaly for several generations, while the Legal Tender approach was dominant. Nevertheless, the modern Court has used the case to support reconceptualizing property in terms of value. See Treanor, supra note 137, at 795 n.74 (discussing these cases).
156. Bruce Ackerman explains much of Supreme Court takings doctrine by contrasting the "Ordinary Observer's" understanding of physical things with the observer's uncertainty regarding "social property." ACKERMAN, supra note 22, at 99-100. Alexander argues, however, that the Ordinary Observer also was always familiar with ideas of social property, such as legal things and legal relations. See Gregory Alexander, The Concept of Property in Private and Constitutional Law: The Ideology of the Scientific Turn in Legal Analysis, 82 COLUM. L. REV. 1545, 1548 (1982).
157. The scale of productive use generally tracks the things that society recognizes as private property. See Michelman, supra note 8, at 9 ("Private property requires rules governing the composition of allowable ownership claims - or, as it might be described, for 'packaging' marketable goods into legally cognizable objects of ownership." ); see also infra Section 1V.D.3 (discussing scale).
158. Michelman, supra note 8, at 9-10.
159. See, e.g., Heller, supra note 8, at 679 n.259 (noting the existence of a "Brady Bunch anticommons"); Heller & Eisenberg, supra note 5, at 698 (discussing the anticommons problem in biomedical research).
160. The earliest use of the term "bundle of rights" appears to be from John Lewis, in his 1888 book, A Treatise on the Law of Eminent Domain: "The dullest individual among the people knows and understands that his property in anything is a bundle of rights." See ALEXANDER, supra note 31, at 322 & 455 n.40 (quoting Lewis); see also J.E. Penner, The "Bundle of Rights" Picture of Property, 43 UCLA L. REV. 711, 713 n.8 (1996) (tracing the metaphor).
161. ALEXANDER, supra note 31, at 319.
162. See RESTATEMENT OF PROPERTY §§ 1-4 (1936).
163. ALEXANDER, supra note 31, at 321. Even in Blackstone's day, people recognized that private property also comprises "legal relations," though this view was a less salient dimension for fragmenting resources. For example, rules permitting entry on another's land in an emergency always tempered the most absolute ownership. See 3 BLACKSTONE, supra note 132, at *212-14.
164. Since its first adoption by the Court in the early 1940s, the bundle metaphor has been making upward progress in property cases to near ubiquity. On the crudest empirical note, a January 1998 Lexis search shows that the phrase "bundle of rights" appears in four state and federal cases before 1940. Between 1940 and 1960, 133 cases use the term. Over the next 20 years, 246 more cases appear. Since 1980, 775 cases have used the term. While these figures give a sense of the metaphor's rise, they should be interpreted with caution because they miss cases that do not use the precise search terms, include some cases that use them in an unrelated sense, and do not control for the secular rise in published opinions. See also Penner, supra note 146, at 713 n.8 (describing the rise in use of this metaphor).
165. 6 ALP, supra note 21, § 26.1 n.1; see also RESTATEMENT OF PROPERTY, supra note 148, §§1-4 (adopting the Hohfeldian definition of property); Grey, supra note 22, at 69 (criticizing the modern "bundle of rights" perspective).
166. ARMEN A. ALCHIAN, PRICING AND SOCIETY 7 (Institute of Econ. Affairs, Occasional Paper No. 17, 1967). Amplifying this definition, Richard Posner writes: "Some economists, indeed, use the term property right to describe virtually every device - public or private, common law or regulatory, contractual or governmental, formal or informal - by which divergences between private and social costs or benefits are reduced." RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW 53 (5th ed. 1998); see, e.g., Armen Alchian & Harold Demsetz, The Property Rights Paradigm, 33 J. ECON. HIST. 16 (1973); Eirik G. Furubotn & Svetozar Pejovich, Introduction to THE ECONOMICS OF PROPERTY RIGHTS 1-9 (Eirik G. Fumbotn & Svetozar Pejovich eds., 1974) (offering standard economic definitions of property).
167. ARMEN A. ALCHIAN, PRICING AND SOCIETY 7 (Institute of Econ. Affairs, Occasional Paper No. 17, 1967). Amplifying this definition, Richard Posner writes: "Some economists, indeed, use the term property right to describe virtually every device - public or private, common law or regulatory, contractual or governmental, formal or informal - by which divergences between private and social costs or benefits are reduced." RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW 53 (5th ed. 1998); see, e.g., Armen Alchian & Harold Demsetz, The Property Rights Paradigm, 33 J. ECON. HIST. 16 (1973); Eirik G. Furubotn & Svetozar Pejovich, Introduction to THE ECONOMICS OF PROPERTY RIGHTS 1-9 (Eirik G. Fumbotn & Svetozar Pejovich eds., 1974) (offering standard economic definitions of property).
168. ARMEN A. ALCHIAN, PRICING AND SOCIETY 7 (Institute of Econ. Affairs, Occasional Paper No. 17, 1967). Amplifying this definition, Richard Posner writes: "Some economists, indeed, use the term property right to describe virtually every device - public or private, common law or regulatory, contractual or governmental, formal or informal - by which divergences between private and social costs or benefits are reduced." RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW 53 (5th ed. 1998); see, e.g., Armen Alchian & Harold Demsetz, The Property Rights Paradigm, 33 J. ECON. HIST. 16 (1973); Eirik G. Furubotn & Svetozar Pejovich, Introduction to THE ECONOMICS OF PROPERTY RIGHTS 1-9 (Eirik G. Fumbotn & Svetozar Pejovich eds., 1974) (offering standard economic definitions of property).
169. ARMEN A. ALCHIAN, PRICING AND SOCIETY 7 (Institute of Econ. Affairs, Occasional Paper No. 17, 1967). Amplifying this definition, Richard Posner writes: "Some economists, indeed, use the term property right to describe virtually every device - public or private, common law or regulatory, contractual or governmental, formal or informal - by which divergences between private and social costs or benefits are reduced." RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW 53 (5th ed. 1998); see, e.g., Armen Alchian & Harold Demsetz, The Property Rights Paradigm, 33 J. ECON. HIST. 16 (1973); Eirik G. Furubotn & Svetozar Pejovich, Introduction to THE ECONOMICS OF PROPERTY RIGHTS 1-9 (Eirik G. Fumbotn & Svetozar Pejovich eds., 1974) (offering standard economic definitions of property).
170. Rudden quotes a range of great jurists on the point: Oliver Wendell Holmes said, "new and unusual burdens cannot be imposed on land." Rudden, supra note 62, at 244. L.C. Brougham said, "There are certain known incidents to property and its enjoyment. . . . But it must not therefore be supposed that interests of a novel kind can be devised . . . ." Id. B. Wilde commented: "It is a well settled principle of law that new modes of holding and enjoying real property cannot be created." Id. 154. 260 U.S. 393 (1922).
171. For discussions of Mahon, see Joseph F. DiMento, Mining the Archives of Pennsylvania Coal: Heaps of Constitutional Mischief, 11 J. LEGAL HIST. 396 ( 1990); Lawrence M. Friedman, A Search for Seizure: Pennsylvania Coal v. Mahon in Context, 4 L. & HIST. REV. 1 (1986); E.F. Roberts, Mining with Mr. Justice Holmes, 39 VAND. L, REV. 287 (1986); and Carol M. Rose, Mahon Reconstructed: Why the Takings Issue Js Still a Muddle, 57 S. CAL. L. REV. 561 (1984).
172. For discussions of Mahon, see Joseph F. DiMento, Mining the Archives of Pennsylvania Coal: Heaps of Constitutional Mischief, 11 J. LEGAL HIST. 396 ( 1990); Lawrence M. Friedman, A Search for Seizure: Pennsylvania Coal v. Mahon in Context, 4 L. & HIST. REV. 1 (1986); E.F. Roberts, Mining with Mr. Justice Holmes, 39 VAND. L, REV. 287 (1986); and Carol M. Rose, Mahon Reconstructed: Why the Takings Issue Js Still a Muddle, 57 S. CAL. L. REV. 561 (1984).
173. For discussions of Mahon, see Joseph F. DiMento, Mining the Archives of Pennsylvania Coal: Heaps of Constitutional Mischief, 11 J. LEGAL HIST. 396 ( 1990); Lawrence M. Friedman, A Search for Seizure: Pennsylvania Coal v. Mahon in Context, 4 L. & HIST. REV. 1 (1986); E.F. Roberts, Mining with Mr. Justice Holmes, 39 VAND. L, REV. 287 (1986); and Carol M. Rose, Mahon Reconstructed: Why the Takings Issue Js Still a Muddle, 57 S. CAL. L. REV. 561 (1984).
174. For discussions of Mahon, see Joseph F. DiMento, Mining the Archives of Pennsylvania Coal: Heaps of Constitutional Mischief, 11 J. LEGAL HIST. 396 ( 1990); Lawrence M. Friedman, A Search for Seizure: Pennsylvania Coal v. Mahon in Context, 4 L. & HIST. REV. 1 (1986); E.F. Roberts, Mining with Mr. Justice Holmes, 39 VAND. L, REV. 287 (1986); and Carol M. Rose, Mahon Reconstructed: Why the Takings Issue Js Still a Muddle, 57 S. CAL. L. REV. 561 (1984).
175. Treanor, supra note 137, at 802.
176. 323 U.S. 373 (1944).
177. Id. at 377-78 (footnote omitted).
178. 324 U.S. 499 (1945).
179. Id. at 502.
180. Oddly, the Court in Lucas claims that its takings jurisprudence "has traditionally been guided by the understandings of our citizens regarding the content of, and the State's power over, the 'bundle of rights' that they acquire when they obtain title to property." Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1027 (1992).
181. As the bundle-of-rights image waxes in judicial decisionmaking, it is waning in property theory. In separate conversations, Gregory Alexander suggested that a new metaphor is due, and Brian Simpson argued that the time has come for a rigorous philosophical analysis that takes apart Hohfeld and Honoré. See also Penner, supra note 146, at 819 ("I believe in giving dead concepts [such as the bundle of rights metaphor] a decent burial.").
182. See Carol M. Rose, Property as Storytelling: Perspectives from Game Theory, Narrative Theory, Feminist Theory, 2 YALE J.L. & HUMAN. 37, 52-53 (1990) (dissecting the assumptions and contradictions in conventional property narratives that obscure the move from commons to private property).
183. Michelman, supra note 8, at 9 (emphasis added).
184. YORAM BARZEL, ECONOMIC ANALYSIS OF PROPERTY RIGHTS 71 (1989) (emphasis added). Economic theorists of property have detailed the mechanisms by which people create private property from commons resources. See, e.g., Terry L. Anderson & P.J. Hill, The Evolution of Property Rights: A Study of the American West, 18 J.L. & ECON. 163 (1975) (discussing western land); Harold Demsetz, Towards a Theory of Property Rights, 57 AM. ECON. REV. 347, 350-53 (1967) (discussing fur trappers); John Umbeck, A Theory of Contract Choice and the California Gold Rush, 20 J.L. & ECON. 421 (1977) (analyzing gold mines). Demsetz suggests that private property emerges to internalize externalities when technological, population and other pressures strain the capacity of common resources. See Demsetz, supra. But he misses the possibility that government policies, market failures, and individual preferences may cause excess fragmentation.
185. YORAM BARZEL, ECONOMIC ANALYSIS OF PROPERTY RIGHTS 71 (1989) (emphasis added). Economic theorists of property have detailed the mechanisms by which people create private property from commons resources. See, e.g., Terry L. Anderson & P.J. Hill, The Evolution of Property Rights: A Study of the American West, 18 J.L. & ECON. 163 (1975) (discussing western land); Harold Demsetz, Towards a Theory of Property Rights, 57 AM. ECON. REV. 347, 350-53 (1967) (discussing fur trappers); John Umbeck, A Theory of Contract Choice and the California Gold Rush, 20 J.L. & ECON. 421 (1977) (analyzing gold mines). Demsetz suggests that private property emerges to internalize externalities when technological, population and other pressures strain the capacity of common resources. See Demsetz, supra. But he misses the possibility that government policies, market failures, and individual preferences may cause excess fragmentation.
186. YORAM BARZEL, ECONOMIC ANALYSIS OF PROPERTY RIGHTS 71 (1989) (emphasis added). Economic theorists of property have detailed the mechanisms by which people create private property from commons resources. See, e.g., Terry L. Anderson & P.J. Hill, The Evolution of Property Rights: A Study of the American West, 18 J.L. & ECON. 163 (1975) (discussing western land); Harold Demsetz, Towards a Theory of Property Rights, 57 AM. ECON. REV. 347, 350-53 (1967) (discussing fur trappers); John Umbeck, A Theory of Contract Choice and the California Gold Rush, 20 J.L. & ECON. 421 (1977) (analyzing gold mines). Demsetz suggests that private property emerges to internalize externalities when technological, population and other pressures strain the capacity of common resources. See Demsetz, supra. But he misses the possibility that government policies, market failures, and individual preferences may cause excess fragmentation.
187. YORAM BARZEL, ECONOMIC ANALYSIS OF PROPERTY RIGHTS 71 (1989) (emphasis added). Economic theorists of property have detailed the mechanisms by which people create private property from commons resources. See, e.g., Terry L. Anderson & P.J. Hill, The Evolution of Property Rights: A Study of the American West, 18 J.L. & ECON. 163 (1975) (discussing western land); Harold Demsetz, Towards a Theory of Property Rights, 57 AM. ECON. REV. 347, 350-53 (1967) (discussing fur trappers); John Umbeck, A Theory of Contract Choice and the California Gold Rush, 20 J.L. & ECON. 421 (1977) (analyzing gold mines). Demsetz suggests that private property emerges to internalize externalities when technological, population and other pressures strain the capacity of common resources. See Demsetz, supra. But he misses the possibility that government policies, market failures, and individual preferences may cause excess fragmentation.
188. See Pierson v. Post, 3 Cai. R. 175 (N.Y. 1805) (resolving the ur-fox-capture dispute); Carol M. Rose, Possession as the Origin of Property, 52 U. CHI. L. REV. 73, 76 (1985) (suggesting that the rule-of-capture signals notice to others of one's intent to convert a resource to private use). It is difficult to imagine a commons in which property remains common even after an individual appropriates it. See Duncan Kennedy & Frank Michelman, Are Property' and Contract Efficient?, 8 HOFSTRA L. REV. 711 (1980) (considering the possibility); see also Heller, supra note 8, at 675-76 (same). Even on the high seas, an individual may be able to call upon the power of a state to protect a private right of use against pirates who take the notion of commons property to its logical extreme. See RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES § 404 (1987) (finding that states have universal jurisdiction to "define and prescribe punishment for certain offenses recognized by the community of nations as of universal concern, such as piracy").
189. See Pierson v. Post, 3 Cai. R. 175 (N.Y. 1805) (resolving the ur-fox-capture dispute); Carol M. Rose, Possession as the Origin of Property, 52 U. CHI. L. REV. 73, 76 (1985) (suggesting that the rule-of-capture signals notice to others of one's intent to convert a resource to private use). It is difficult to imagine a commons in which property remains common even after an individual appropriates it. See Duncan Kennedy & Frank Michelman, Are Property' and Contract Efficient?, 8 HOFSTRA L. REV. 711 (1980) (considering the possibility); see also Heller, supra note 8, at 675-76 (same). Even on the high seas, an individual may be able to call upon the power of a state to protect a private right of use against pirates who take the notion of commons property to its logical extreme. See RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES § 404 (1987) (finding that states have universal jurisdiction to "define and prescribe punishment for certain offenses recognized by the community of nations as of universal concern, such as piracy").
190. See Ellickson, supra note 37, at 1322 (distinguishing open, horde, and group access in his typology of land ownership).
191. See Clean Air Act, 42 U.S.C. §§ 7651b-7651o (1994) (creating tradeable pollution allowances in sulfur dioxide); Peter Passell, U.S. States To Allot Fishing Rights in Coastal Waters to Boat Owners, N.Y. TIMES, Apr. 22, 1991, at A1 (noting reallocation of fishing rights).
192. See CRIBBET & JOHNSON, supra note 13, at 114. When uses irreconcilably conflict, owners can divide their cotenancies into sole ownership. However, physical "partition in kind" can create uneconomically small lots. To avoid a tragedy of the anticommons, "partition by sale" allows judges the alternative of selling the undivided resource and then dividing up money among co-owners. Id.; see also supra note 13.
193. This shift in intensity of use parallels the story Demsetz tells. See Demsetz, supra note 165, at 350-53. According to the standard theory of the shift, the switch to private property also encourages conservation of the resource.
194. See Heller, supra note 8, at 677.
195. See id. at 669n.218.
196. ALEXANDER, supra note 31, at 120. Property lawyers in this era were concerned with overthrowing feudal remnants in the law through which the landed classes could retain dead hand control of their estates, and, in James Kent's words, "leave an accumulated mass of property in the hands of the idle and the vicious." 4 KENT, supra note 69, at 19; see also ALEXANDER, supra note 31, at 146 (discussing Kent). Lawrence Friedman notes that during the first part of the 19th century, "fear of land monopoly and land dynasties haunted the lawmakers," LAWRENCE M. FRIEDMAN, A HISTORY OF AMERICAN LAW 240 (2d ed. 1985), and that in the latter part of the century, "the dominant theme of American land law was that land should be freely bought and sold." Id at 412.
197. See 6 ALP, supra note 21, § 26.1 ("Since an early date in the history of the English common law it has been thought socially and economically desirable that the owner of a present fee simple . . . should have the power to transfer his interest."). According to the American Law of Propeny, the main social and economic objections to direct restraints on alienation are that if such restraints were valid, over time, resources would likely be wasted because they would be taken out of the stream of commerce, improvements would be discouraged, wealth might become more concentrated, and creditors potentially could be misled. See id. § 26.3.
198. See. e.g., CRIBBET & JOHNSON, supra note 13, at 82-85 (conflating discussion of the Rule Against Perpetuities with the rules against restraints on alienation). This nomenclature is odd because anti-fragmentation rules operate by limiting individuals' current choices regarding alienability. By contrast, rules preventing direct restraints, which are a relatively minor part of the law, promote alienability by current owners. See 6 ALP, supra note 21, § 26.3. Direct restraints include the disabling form, "O grants Blackacre to A, and A may not sell"; the forfeiture form, "O to A, but if A tries to transfer, then to B"; and the promissory form "O to A, and A promises not to transfer." DUKEMINIER & KRIER, supra note 32, at 223-24.
199. See ALEXANDER, supra note 31, at 145 ("Alienability is not necessarily the same as marketability."); GOLDSTEIN, supra note 16, at 474; cf Sterk, supra note 81, at 644-59 (suggesting the contrast between "freedom of contract" and "freedom from freedom of contract" as a way of discussing boundary rules in the servitudes context).
200. Michelman, supra note 8, at 20. He notes that this principle necessarily applies to reassignment as well as to the initial acquisition of private property. See id at 17-20.
201. Id. at 20.
202. Id. at 19.
203. Id. at 15. Following Michelman, Eluckson notes that "[t]o deter destructive decompositions of property interests, the Anglo-American legal system has developed a complex set of paternalistic rules. . . . Rules that govern the interpretation and termination of sub-fee interests also tilt against creation and continuation of interests 'repugnant to the fee.'" Ellickson, supra note 37, at 1374.
204. In distilling the formal elements of private property, Michelman notes the fundamental role of sole ownership: "The rules must allow that at least some objects of utility or desire can be fully owned by just one person." Michelman, supra note 8, at 5.
205. See R.H. Coase, The Problem of Social Cost, 3 J.L. & ECON. 1, 2-8 (1960); cf. R.H. COASE, THE FIRM, THE MARKET, AND THE LAW 174 (1988) (recognizing the centrality of transaction costs).
206. See R.H. Coase, The Problem of Social Cost, 3 J.L. & ECON. 1, 2-8 (1960); cf. R.H. COASE, THE FIRM, THE MARKET, AND THE LAW 174 (1988) (recognizing the centrality of transaction costs).
207. See Richard Craswell, Passing on the Costs of Legal Rules: Efficiency and Distribution in Buyer-Seller Relationships. 43 STAN. L. REV. 361, 385-91 (1991) (discussing the roles of framing and wealth effects in undermining Coasian bargains).
208. See Heller, supra note 8, at 676.
209. See Heller & Krier, supra note 3, at 997 (abstract). As a string cite in every law review takings discussion invariably and colorfully points out, the Court has made this area of law a mess. See, e.g., John A. Humbach, A Unifying Theory for the Just Compensation Cases, 34 RUTGERS L. REV. 243, 244 (1982) ("a farrago of fumblings which have suffered too long from a surfeit of deficient theories"); Saul Levmore, Takings, Torts, and Special Interests, 77 VA. L. REV. 1333, 1333 & n.1 (1991) ("one of the most frustrating areas of law"); Jed Rubenfeld, Usings, 102 YALE L.J. 1077, 1078 (1993) ("engulfed in confusion"); Joseph L. Sax, Takings, Private Property and Public Rights, 81 YALE L.J. 149, 149 (1971) ("resistant to analytical efforts"). The organizing principle for this ubiquitous cite remains elusive: friends, the famous, or just pithy quotations? Is there a market to provide quotable quips, like the advertising blurbs from professionally enthusiastic movie reviewers?
210. See Heller & Krier, supra note 3, at 997 (abstract). As a string cite in every law review takings discussion invariably and colorfully points out, the Court has made this area of law a mess. See, e.g., John A. Humbach, A Unifying Theory for the Just Compensation Cases, 34 RUTGERS L. REV. 243, 244 (1982) ("a farrago of fumblings which have suffered too long from a surfeit of deficient theories"); Saul Levmore, Takings, Torts, and Special Interests, 77 VA. L. REV. 1333, 1333 & n.1 (1991) ("one of the most frustrating areas of law"); Jed Rubenfeld, Usings, 102 YALE L.J. 1077, 1078 (1993) ("engulfed in confusion"); Joseph L. Sax, Takings, Private Property and Public Rights, 81 YALE L.J. 149, 149 (1971) ("resistant to analytical efforts"). The organizing principle for this ubiquitous cite remains elusive: friends, the famous, or just pithy quotations? Is there a market to provide quotable quips, like the advertising blurbs from professionally enthusiastic movie reviewers?
211. See Heller & Krier, supra note 3, at 997 (abstract). As a string cite in every law review takings discussion invariably and colorfully points out, the Court has made this area of law a mess. See, e.g., John A. Humbach, A Unifying Theory for the Just Compensation Cases, 34 RUTGERS L. REV. 243, 244 (1982) ("a farrago of fumblings which have suffered too long from a surfeit of deficient theories"); Saul Levmore, Takings, Torts, and Special Interests, 77 VA. L. REV. 1333, 1333 & n.1 (1991) ("one of the most frustrating areas of law"); Jed Rubenfeld, Usings, 102 YALE L.J. 1077, 1078 (1993) ("engulfed in confusion"); Joseph L. Sax, Takings, Private Property and Public Rights, 81 YALE L.J. 149, 149 (1971) ("resistant to analytical efforts"). The organizing principle for this ubiquitous cite remains elusive: friends, the famous, or just pithy quotations? Is there a market to provide quotable quips, like the advertising blurbs from professionally enthusiastic movie reviewers?
212. See Heller & Krier, supra note 3, at 997 (abstract). As a string cite in every law review takings discussion invariably and colorfully points out, the Court has made this area of law a mess. See, e.g., John A. Humbach, A Unifying Theory for the Just Compensation Cases, 34 RUTGERS L. REV. 243, 244 (1982) ("a farrago of fumblings which have suffered too long from a surfeit of deficient theories"); Saul Levmore, Takings, Torts, and Special Interests, 77 VA. L. REV. 1333, 1333 & n.1 (1991) ("one of the most frustrating areas of law"); Jed Rubenfeld, Usings, 102 YALE L.J. 1077, 1078 (1993) ("engulfed in confusion"); Joseph L. Sax, Takings, Private Property and Public Rights, 81 YALE L.J. 149, 149 (1971) ("resistant to analytical efforts"). The organizing principle for this ubiquitous cite remains elusive: friends, the famous, or just pithy quotations? Is there a market to provide quotable quips, like the advertising blurbs from professionally enthusiastic movie reviewers?
213. As Michelman argues, recent takings cases "are a manifestation of the difficulties faced by the Court in trying to keep faith with American constitutionalism's aspiration to reconcile private property (or, more generally, limited government) with democracy." Frank Michelman, Takings, 1987, 88 COLUM. L. REV. 1600, 1625 (1988). This Part uses takings doctrine to explore the law and theory of fragmented ownership, rather than to examine takings law as part of the larger fabric of American constitutionalism or to offer a general theory of takings. For the beginnings of such a theory, see Heller & Krier, supra note 3. In conversation, Jed Rubenfeld notes that takings scholarship has generally had a properly, rather than a constitutional, focus. For an example of a Constitution-oriented approach, see Rubenfeld, supra note 185, which reinvigorates the Public Use Clause. See also Gregory S. Alexander, Ten Years of Takings, 46 J. LEGAL EDUC. 586, 590 (1996) ("[A]S of 1987, the Takings Clause posed only a very limited threat to the state's regulatory power. Specialists in public law subjects like constitutional law and administrative law could largely afford to ignore it.").
214. As Michelman argues, recent takings cases "are a manifestation of the difficulties faced by the Court in trying to keep faith with American constitutionalism's aspiration to reconcile private property (or, more generally, limited government) with democracy." Frank Michelman, Takings, 1987, 88 COLUM. L. REV. 1600, 1625 (1988). This Part uses takings doctrine to explore the law and theory of fragmented ownership, rather than to examine takings law as part of the larger fabric of American constitutionalism or to offer a general theory of takings. For the beginnings of such a theory, see Heller & Krier, supra note 3. In conversation, Jed Rubenfeld notes that takings scholarship has generally had a properly, rather than a constitutional, focus. For an example of a Constitution-oriented approach, see Rubenfeld, supra note 185, which reinvigorates the Public Use Clause. See also Gregory S. Alexander, Ten Years of Takings, 46 J. LEGAL EDUC. 586, 590 (1996) ("[A]S of 1987, the Takings Clause posed only a very limited threat to the state's regulatory power. Specialists in public law subjects like constitutional law and administrative law could largely afford to ignore it.").
215. 458 U.S. 419 (1982).
216. Id. at 434-35.
217. Id. at 421 -22.
218. Id. at 424.
219. Id. at 438 n. 16.
220. Id. at 427; see also supra note 141 (discussing Pumpelly).
221. See 458 U.S. at 435 ("'Property rights in a physical thing have been described as the rights 'to possess, use and dispose of it.'" (citing United States v. General Motors, 323 U.S. 373 378 (1945))).
222. Id.
223. Id.
224. See Rubenfeld, supra note 185, at 1084 (stating that Loretta "boldly extended the physical-invasion rule").
225. Loretta, 458 U.S. at 442 (Blackmun, J., dissenting).
226. See, e.g., John J. Constonis, Presumptive and Per Se Takings: A Decisional Model for the Takings Issue, 58 N.Y.U. L. REV. 465, 529 (1983) (evincing unease with the "anachronistic" and "aberrational" categorical rule in Loretto).
227. See Loretta, 458 U.S. at 447 (Blackmun, J., dissenting) ("Precisely because the extent to which the government may injure private interests now depends so little on whether or not it has authorized a 'physical contact,' the Court has avoided per se takings rules resting on outmoded distinctions between physical and nonphysical intrusions.").
228. In dissent, Justice Blackmun writes that: "[A] takings rule based on such a distinction is inherently suspect because 'its capacity to distinguish, even crudely, between significant and insignificant losses is too puny to be taken seriously.'" Id. at 447 (Blackmun, J., dissenting) (quoting Frank I. Michelman, Property, Utility, and Fairness: Comments on the Ethical Foundations of "Just Compensation" Law, 80 HARV. L. REV. 1165, 1227 (1967)).
229. See generally ACKERMAN, supra note 22.
230. Loretto v. Group W. Cable, 522 N.Y.S.2d 543, 546 (App. Div. 1987); see generally Heller & Krier, supra note 3, at 1007-09 (criticizing Loretta and offering a better approach).
231. 118 S. Ct. 1925 (1998). See generally Heller & Krier, supra note 3, at 1013-22 (discussing the role of Phillips in the law of takings).
232. See Id. at 1928-29; see also Michael A. Heller & James E. Krier, Making Something out of Nothing: The Law of Takings and Phillips v. Washington Legal Foundation, 7 SUP. CT. ECON. REV. (forthcoming 1999) (detailing the facts and reasoning of Phillips).
233. Phillips, 118 S. Ct. at 1933 (citation omitted) (quoting United States v. General Motors, 323 U.S. 373, 378 (1945)).
234. Id. at 1934 (Souter, J., dissenting).
235. As Radin notes: [Conceptual severance involves] delineating a property interest consisting of just what the government action has removed from the owner, and then asserting that that particular whole thing has been permanently taken. Thus, this strategy hypothetically or conceptually "severs" from the whole bundle of rights just those strands that are interfered with by the regulation, and then hypothetically or conceptually construes those strands in the aggregate as a separate whole thing. Margaret Jane Radin, The Liberal Conception of Property: Cross Currents in the Jurisprudence of Takings, 88 COLUM. L. REV. 1667, 1676 (1988); see also Michelman, supra note 186, at 1601 (noting that conceptual severance might also be called "entitlement chopping"). Radin also includes "physical thing" cases such as Loretto within her conceptual severance category. See Radin, supra, at 1676. I believe this inclusive reading undermines the analytic force of her insight. The Court has a visceral reaction to discrete physical things distinct from its treatment of conceptual severance in the legal thing cases. Conversely, a legal thing case such as Nollan could be narrowly read as effecting a form of a "permanent physical occupation." Michelman, supra, at 1608 (quoting Lawrence Means, Motives and Takings: The Nexus Test of Nollan v. California Coastal Commission, 12 HARV. ENVTL. L. REV. 231, 253-63 (1988)).
236. As Radin notes: [Conceptual severance involves] delineating a property interest consisting of just what the government action has removed from the owner, and then asserting that that particular whole thing has been permanently taken. Thus, this strategy hypothetically or conceptually "severs" from the whole bundle of rights just those strands that are interfered with by the regulation, and then hypothetically or conceptually construes those strands in the aggregate as a separate whole thing. Margaret Jane Radin, The Liberal Conception of Property: Cross Currents in the Jurisprudence of Takings, 88 COLUM. L. REV. 1667, 1676 (1988); see also Michelman, supra note 186, at 1601 (noting that conceptual severance might also be called "entitlement chopping"). Radin also includes "physical thing" cases such as Loretto within her conceptual severance category. See Radin, supra, at 1676. I believe this inclusive reading undermines the analytic force of her insight. The Court has a visceral reaction to discrete physical things distinct from its treatment of conceptual severance in the legal thing cases. Conversely, a legal thing case such as Nollan could be narrowly read as effecting a form of a "permanent physical occupation." Michelman, supra, at 1608 (quoting Lawrence Means, Motives and Takings: The Nexus Test of Nollan v. California Coastal Commission, 12 HARV. ENVTL. L. REV. 231, 253-63 (1988)).
237. See, e.g., Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1016 n.7 (1992) (noting that "the rhetorical force of our 'deprivation of all economically feasible use' rule is greater than its precision, since the rule does not make clear the 'property interest' against which the loss of value is to be measured"); Loveladies Harbor, Inc. v. United States, 28 F.3d 1171, 1179-82 (Fed. Cir. 1994) (discussing the "Denominator Problem"); Michelman, supra note 200, at 1192 (noting that "[t]he difficulty [of determining a diminution in value] is aggravated when the question is raised of how to define the 'particular thing' whose value is to furnish the denominator of the fraction").
238. For example, in United States v. Causby, 328 U.S. 256 (1946), the Court characterized low-level overflights not as physical occupation by military planes of the farmer's land, but as a taking of an easement in air above. See also Portsmouth Harbor Land & Hotel v. United States, 260 U.S. 327 (1922).
239. 438 U.S. 104 (1978).
240. See id. at 124-26.
241. Compare id. at 130 ("'Taking' jurisprudence does not divide a single parcel into discrete segments and attempt to determine whether rights in a particular segment have been entirely abrogated."), with id. at 142 (Rehnquist, J., dissenting) ("[T]he Court has frequently emphasized that the term 'property' as used in the Taking Clause includes the entire 'group of rights inhering in the citizen's [ownership].'" (quoting United States v. General Motors, 323 U.S. 373 (1945))).
242. See Levmore, supra note 185, at 1333 n.l ("[L]arge parts of takings law may be predictable in the sense that experienced observers will know whether a particular governmental intervention is or is not likely to cause courts to require that the government compensate burdened parties.").
243. See Michelman, supra note 186, at 1626 (characterizing Richard Epstein's view of ad hoc reasoning to be "usurping democracy as we fall into the hands of unbridled judicial power.").
244. Susan Rose-Ackerman, Against Ad Hocery: A Comment on Michelman, 88 COLUM. L. REV. 1697 (1988).
245. Michelman, supra note 186, at 1628.
246. 483 U.S. 825 (1987).
247. Id. at 841, 842 ("California is free to advance its 'comprehensive program,' if it wishes, by using its power of eminent domain for this 'public purpose,' but if it wants an easement across the Nollans' property, it must pay for it." (citation omitted)).
248. See, e.g., Matthews v. Bay Head Improvement Ass'n, 471 A.2d 355 (N.J. 1984); see also David J. Bederman, The Curious Resurrection of Custom: Beach Access and Judicial Takings, 96 COLUM. L. REV. 1375, 1417 (1996) ("Oregon is generally credited with resuscitating the doctrine of customary easements as applied to public rights of access to the beach."); Joseph L. Sax, The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention, 68 MICH. L. REV. 471 (1970).
249. See, e.g., Matthews v. Bay Head Improvement Ass'n, 471 A.2d 355 (N.J. 1984); see also David J. Bederman, The Curious Resurrection of Custom: Beach Access and Judicial Takings, 96 COLUM. L. REV. 1375, 1417 (1996) ("Oregon is generally credited with resuscitating the doctrine of customary easements as applied to public rights of access to the beach."); Joseph L. Sax, The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention, 68 MICH. L. REV. 471 (1970).
250. As an aside, I remain agnostic about whether the government should have to compensate a beachfront owner like Nollan. There are two distinct issues to consider. First, does fragmentation create a beachcomber's tragedy of the anticommons? Here it appears the answer is yes. Second, should the government pay compensation if it abolishes the offending property right fragments? Some states find customary rights or public trust doctrines that work their formalistic magic to clear the beachcomber's path; other states find that if the public wants access, it must pay for the right. The split in state law suggests why Nollan presents a close issue. My intention is to show that the one-way ratchet of fragmentation may impose hidden costs on society and that recognizing property boundaries can help focus discussion on the competing social values at stake. By contrast, the Nollan Court's labeling exercise does not advance the argument or provide much guidance for future close cases.
251. 480 U.S. 470 (1987).
252. Compare id. at 498 ("The 27 million tons of coal do not constitute a separate segment of property for takings law purposes."), with id. at 517 (Rehnquist, J., dissenting) ("There is no question that this coal is an identifiable and separable property interest.").
253. 260 U.S. 393 (1922). Compare id. at 414 ("[The regulation] purports to abolish what is recognized . . . as an estate in land . . . ."), with id. at 419 (Brandeis, J., dissenting) ("The rights of an owner as against the public are not increased by dividing the interests in his property into surface and subsoil.").
254. 482 U.S. 304 (1987). This case is perhaps better read more narrowly as one concerning takings remedies than as one expanding the boundaries of legal things.
255. Compare id. at 319 (1987) (conceptually severing a temporary regulation into a taking of a term of years), with id. at 334-35, (Stevens, J., dissenting) (objecting to a finding of a temporary taking).
256. Commenting on Radin's idea of conceptual severance, William A. Fischel notes: An important implication of such a conception is . . . the identification for judicial protection of every stick in the bundle of property rights or, in economists' jargon, every differentiable term of the property rights function. A regulatory burden on one aspect of a parcel, such as a restraint on alienation or withdrawal of air rights, rises automatically to a full taking of property under conceptual severance. William A. Fischel, Introduction: Utilitarian Balancing and Formalism in Takings, 88 COLUM. L. REV. 1581, 1592 (1988).
257. As Michelman observes, "the recent outcroppings of formality [are] not . . . harbingers of a possible second coming of the liberal conception in American constitutional law, but symptoms of the historical impossibility of consummating such an event." Michelman, supra note 186, at 1625.
258. 444 U.S. 51 (1979).
259. 444 U.S. 164 (1979). The dispute in this case arose after Kaiser Aetna dredged its inland pond and connected it to navigable waters. The government then argued that these improvements made the pond itself navigable and therefore created a public right of access. See id. at 168. But for its subsequent and repeated use by the Court as a legal relations case, Kaiser Aetna could more naturally fit under the physical thing or legal thing categories in my framework: "[T]he imposition of the navigational servitude in this context will result in an actual physical invasion of the privately owned marina. And even if the Government physically invades only an easement in property, it must nonetheless pay just compensation." Id. at 180 (emphases added) (citations omitted).
260. See Andrus, 444 U.S. at 67-68.
261. Kaiser Aetna, 444 U.S. at 179-80.
262. See Andrus, 444 U.S. at 58.
263. See id. at 66.
264. Id. at 65-66. In Andrus, as in Lucas, when the Court speaks of key "traditional" legal relations, this is a jurisprudence of recent vintage.
265. The Lucas Court suggests that it can distinguish Andrus on the grounds that regulation of personal property receives less Takings Clause protection than real property. See Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1028-29 (1992).
266. Kaiser Aetna, 444 U.S. at 179-80 (citation omitted). As an aside, the case may have come out differently had the Court been reviewing a decision finding a navigational servitude under state law. Cf. Prune Yard Shopping Ctr. v. Robbins, 447 U.S. 74 (1980) (upholding a state constitutional requirement that prevents shopping center owners from excluding picketers).
267. The Court ignores the usual sources found in state law. See Stephen J. Massey, Note, Justice Rehnquist's Theory of Property, 93 YALE L.J. 541, 547-48 (1984). (arguing that the assertion of the universality of a "right to exclude" is inconsistent with the Court's "usual insistence that property claims must be established by reference to positive state law"). Instead, the Court cites to two appellate decisions, United States v. Pueblo of San Ildefonso, 513 F.2d 1383, 1394 (Ct. Cl. 1975), and United States v. Lutz, 295 F.2d 736, 740 (5th Cir. 1961), and to the less sweeping statement in Justice Brandeis's dissent in International News Service v. Associated Press that "[a]n essential element of individual property is the legal right to exclude others from enjoying it." 248 U.S. 215, 250 (1918) (Brandeis, J., dissenting). See Kaiser Aetna, 444 U.S. at 180 n.11.
268. See Heller, supra note 8, at 663-64 & n.192.
269. See, e.g., State v. Shack, 277 A.2d 369 (N.J. 1971) (holding that farmer-employers do not have the right to exclude aid agencies from coming onto land to assist migrant workers). As early as Village of Euclid v. Ambler Realty, 212 U.S. 365 (1926), the classic case upholding comprehensive zoning, the Court held that many sticks can be removed from the bundle without that constituting a taking of private property.
270. See Heller, supra note 8, at 663-64 (discussing the debate).
271. A.M. Honoré, Ownership, in OXFORD ESSAYS IN JURISPRUDENCE 107, 113 (A.G. Guest ed., 1961) (defending his approach as "an attempt to redress the balance" in property theory and discussing exclusion as part of a right to possess); see also Massey, supra note 237, at 547-48 & n.42 (discussing the contradiction between the Court's holding and Honoré's theory).
272. Honoré, supra note 241, at 113.
273. See Joseph William Singer & Jack M. Beermann, The Social Origins of Property, 6 CAN. J.L. & JURIS. 217, 220 (1993) (arguing that "[r]ather than asking whether a particular right constitutes a core strand in the traditional bundle of property rights, the Court should more forthrightly focus on [the social aspects of property]").
274. 481 U.S. 704 (1987). For an analysis of Model, see Ronald Chester, Is the Right To Devise Property Constitutionally Protected?: The Strange Case of Hodel v. Irving, 24 Sw. U. L. REV. 1195 (1995).
275. 519 U.S. 234 (1997). The underlying factual issues are the same in Model and Bubbitt.
276. These cases can be framed as comprising two distinct kinds of fragmentation. The facts predominantly concern the fragmentation of Native American allotment land into overlapping low-value tenancies-in-commons. that is, fragmentation into small legal things. The Court's analysis, however, focuses on fragmentation of legal relations, that is, whether Congress can, in certain circumstances, eliminate the right to devise from the bundle of rights.
277. See The Papers of Thurgood Marshall, Box 412 (unpublished manuscripts reproduced from the collections of the Library of Congress, on file with author). The draft opinion circulated on Nov. 3, 1986 by Justice Stevens would have held section 207 invalid on due process grounds, based on the reasoning in Texaco v. Short, 454 U.S. 516 (1982). This approach gathered little support and elicited draft concurrences from Justices O'Connor and Scalia, see Memorandum from Justice O'Connor to Justice Stevens (Nov. 3, 1986) (on file with author) ("Your draft opinion in this case goes off on a ground not raised by the parties . . . ."); O'Connor draft concurrence, (Mar. 11, 1987); Memorandum from Justice Scalia to Justice Stevens (Nov. 4, 1986) (on file with author) ("I share Sandra's concerns . . . ."). Initially, Justices Powell and Rehnquist were inclined to find that section 207 was not a taking. As Justice Powell wrote: At Conference I was tentatively inclined to [find section 207 not to be a taking]. A clear majority at Conference voted to affirm, but there was considerable diversity of opinion as to the basis of the Court's decision. Letters from Sandra and Nino indicate that differences continue to exist. As I am not at rest, I will await further writing before deciding what to do. Memorandum from Justice Powell to Justice Stevens (Nov. 5, 1986) (on file with author); see also Memorandum from Justice Powell to Chief Justice Rehnquist (Feb. 19, 1987) (on file with author); Memorandum from Justice Powell to Justice Scalia (Feb. 26, 1987) (on file with author); Memorandum from Chief Justice Rehnquist to Justice Scalia (Mar. 3, 1987) (on file with author). Justices Rehnquist and Powell signed on first to Justice Scalia's concurrence and then, in April 1987, to Justice O'Connor's draft majority opinion. In May 1987, Justice Scalia also signed on after Justice O'Connor toned down references to, and reliance on, Andrus.
278. See Heller, supra note 8, at 685-87.
279. See FELIX COHEN, HANDBOOK OF FEDERAL INDIAN LAW 615-16 (1982 ed.) ("[A]llotment is a term of art in Indian law, describing either a parcel of land owned by the United States in trust for an Indian ('trust' allotment) or owned by an Indian subject to restriction on alienation in favor of the United States or its officials ('restricted fee' allotment)."); Heller supra note 8, at 685 (noting that individuals received 160 acres and heads of households received 320 acres);
280. Model, 481 U.S. 704, 707 (1987).
281. See id. Here the terms of the trust operated to create an anticommons in contradiction to the usual role of the trust as an anti-fragmentation mechanism.
282. Id. at 704. As early as 1928, Congress realized that the program was not working and "[g]ood, potentially productive, land was allowed to lie fallow, amidst great poverty, because of the difficulties of managing property held in this manner." Id. at 708. In trying to reform the allotment program in 1934, one Congressman noted: [T]he administrative costs become incredible. . . . On allotted reservations, numerous cases exist where the shares of each individual heir from lease money may be 1 cent a month. . . . The Indians and the Indian Service personnel are thus trapped in a meaningless system of minute partition in which all thought of the possible use of land to satisfy human needs is lost in a mathematical haze of bookkeeping. Id. (quoting 78 CONG. REC. 11,728 (1934) (statement of Rep. Howard)).
283. See Model, 481 U.S. at 708; see also John H. Leavitt, Hodel v. Irving: The Supreme Court's Emerging Takings Analysis - A Question of How Many Pumpkin Seeds per Acre, 18 ENVTL. L. 597, 612 (1988) ("Fractionalization creates an enormous administrative burden for the BIA."); Suzanne S. Schmid, Comment, Escheat of Indian Land as a Fifth Amendment Taking in Hodel v. Irving: A New Approach to Inheritance?, 43 U. MIAMI L. REV. 739, 741-42 (1989) ("The fractionation of individually owned Indian trust or restricted land represents one of the outstanding problems in Indian law.").
284. See Model, 481 U.S. at 708; see also John H. Leavitt, Hodel v. Irving: The Supreme Court's Emerging Takings Analysis - A Question of How Many Pumpkin Seeds per Acre, 18 ENVTL. L. 597, 612 (1988) ("Fractionalization creates an enormous administrative burden for the BIA."); Suzanne S. Schmid, Comment, Escheat of Indian Land as a Fifth Amendment Taking in Hodel v. Irving: A New Approach to Inheritance?, 43 U. MIAMI L. REV. 739, 741-42 (1989) ("The fractionation of individually owned Indian trust or restricted land represents one of the outstanding problems in Indian law.").
285. See Hodel, 481 U.S. at 712. One particularly egregious tract. Tract 1305 of 40 acres, produced $1080 in annual rents, was valued at $8000, and cost the Bureau of Indian Affairs (BIA) $17,560 annually to find and pay the 439 owners and manage the property. See id. at 713. In 1934, John Collier, Commissioner of Indian Affairs noted: [T]he Indian Service is forced to expend millions of dollars a year. The expenditure does not and cannot save the land, or conserve the capital accruing from land sales or from rentals. . . . For the Indians the situation is necessarily one of frustration, of impotent discontent. They are forced into the status of a landlord class, yet it is impossible for them to control their own estates; and the estates are insufficient to yield a decent living, and the yield diminishes year by year and finally stops altogether. Readjustment of Indian Affairs: Hearings on H.R. 7902 of the House Comm. on Indian Affairs, 73d Cong. 117-18 (1934), cited in Petitioner's Brief at 10, Babbitt v. Youpee, 518 U.S. 1050 (1996). On Tract 1305, two-thirds of the owners received less than one dollar in annual rents and one-third received less than a nickel, while the smallest share amounted to a penny once in 177 years. See Hodel, 481 U.S. at 713.
286. Hodel, 481 U.S. at 712.
287. Pub. L. No. 97-459, tit. II, 96 Stat. 2515, 2517 (1983) (codified as amended at 25 U.S.C. § 2206 (1994)).
288. In deciding Model, the Court could have arrived at the same outcome it reached without creating a new level of protection for bare legal relations. Following Causby, the Court could have relied on its "legal thing" jurisprudence. The Court brings this approach to mind when it analogizes section 207 to an old-fashioned remainder interest: "[T]he right to pass on valuable property to one's heirs is itself a valuable right. Depending on the age of the owner, much or most of the value of the parcel may inhere in this 'remainder' interest." Hodel, 481 U.S. at 715. To value this so-called remainder interest, the Court suggests 26 CFR § 20.203 1-7(f) (Table A) (1986), which shows that the value of a remainder interest when a life tenant is age 65 is approximately 32% of the whole. See Hodel, 481 U.S. at 715.
289. Hodel, 481 U.S. at 715.
290. Id. at 716.
291. See Indian Land Consolidation Act, 25 U.S.C. § 2206 (1994); Babbitt v. Youpee, 519 U.S. 234, 240 (1997) (listing three relevant amendments to section 207).
292. Babbitt, 519 U.S. at 235 ("The narrow revisions Congress made to § 207, without benefit of our ruling in Irving, do not warrant a disposition different than the one this Court announced and explained in Irving").
293. The entire concurring opinion of Justice Brennan, joined by Justices Marshall and Blackmun, states: I find nothing in today's opinion that would limit Andrus v. Allard to its facts. Indeed, largely for reasons discussed by the Court of Appeals, I am of the view that the unique negotiations giving rise to the property rights and expectations at issue here make this case the unusual one. Accordingly, I join the opinion of the Court. Hodel, 481 U.S. at 718 (Brennan, J., concurring) (citations omitted).
294. Justice Scalia's entire concurrence, joined by Chief Justice Rehnquist and Justice Powell, reads: I join the opinion of the Court. I write separately to note that in my view the present statute, insofar as concerns the balance between rights taken and rights left untouched, is indistinguishable from the statute that was at issue in Andrus v. Allard. Because that comparison is determinative of whether there has been a taking, see Penn Central Transportation Co. v. New York City; Pennsylvania Coal Co. v. Mahon, in finding a taking today our decision effectively limits Allard to its facts. Id. at 718 (Scalia, J., concurring) (citations omitted).
295. See supra Section II.B.
296. While developing such a practical test is outside the scope of this article, Jim Krier and I venture a new approach to takings law. See Heller & Krier, supra note 3. Rather than trying to define "private property" as such, our approach responds more directly to the purposes of the Takings Clause. By uncoupling matters and methods of deterrence from matters and methods of distribution, we aim to develop a law of takings more workable than the mess that now exists.
297. 110 F.3d 816 (D.C. Cir. 1997).
298. Id. at 827 (quoting the FCC order).
299. Id. (quoting the FCC order).
300. "Just compensation" and "due process" as applied to property have had different jurisprudential trajectories. See Massey, supra note 237, at 542-45. But see RICHARD A. EPSTEIN, TAKINGS: PRIVATE PROPERTY AND THE POWER OF EMINENT DOMAIN (1985): Under the proper analysis all rights are, as it were, fundamental. Neither the due process clause nor the takings clause draws any distinction among the types of property interests they protect. All such interests are treated as a piece and all are subject to the unified application of the police power rules. Id. at 143. In Eastern Enterprises v. Apfel, 118 S. Ct. 2131 (1998), a central disagreement among the Justices concerns whether to characterize a regulation as affecting property under the Takings Clause or the Due Process Clause. See Heller & Krier, supra note 3, at 1024-25 (noting the Justices' conflicting approaches).
301. Justice Stevens offers a way to review regulations that aim to overcome a tragedy of anticommons property: The federal interest in minimizing the fractionated ownership of Indian lands - and thereby paving the way to the productive development of their property - is strong enough to justify the legislative remedy created by § 207, provided, of course, that affected owners have adequate notice of the requirements of the law and an adequate opportunity to adjust their affairs to protect against loss. Babbitt v. Youpee, 519 U.S. 234, 246 (1997) (Stevens, J., dissenting).
302. 454 U.S. 516 (1982).
303. Id. at 529. (The state has the power to "condition the retention of a property right upon the performance of an act within a limited period of time. . . . [A]s a result of the failure of the property owner to perform the statutory condition, an interest in fee was deemed as a matter of law to be abandoned and to lapse."); see also Hodel v. Irving, 481 U.S. 704, 729 (1987) (Stevens, J., concurring) (citing Texaco, 454 U.S. at 529).
304. 471 U.S. 84 (1985).
305. Id. at 106 n.15. These rules, however, are only reasonable if they afford sufficient notice to the property owners and a reasonable opportunity to comply. See id. 275. For example, it would have been constitutionally uncontroversial for Congress to instruct the BIA to charge owners the administrative costs of managing the trust lands, an amount that would often dwarf the value of the allotment and would lead to massive and rapid abandoning of fragments back to the tribe. It is an oddly formalistic approach that allows the BIA to solve the fractionation problem through burdensome administrative fees, but not by the less intrusive method of eliminating devise of the least-valuable fragments.
306. 118 S. Ct. 2131 (1998).
307. See id. at 2153.
308. Id. at 2162 (Breyer, J., dissenting).
309. Id. at 2163 (Breyer, J., dissenting).
310. Id. at 2155 (Kennedy, J., concurring in the judgment and dissenting in part).
311. See id.
312. Id.
313. 304 N.W.2d 455 (Mich. 1981).
314. Potetown may not be an example of a tragedy of the anticommons even at the community level. There was a substantial question whether the switch to factory use improved overall utility because the fair market value system of compensation misses the subjective and community values destroyed by bundling. See JEANIE WYLIE, POLETOWN: COMMUNITY BETRAYED (1989). The resemblance of the case to the English enclosures of Blackstone's time is striking.
315. Model v. Irving, 481 U.S. 704, 707 (1987).