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Volumn 75, Issue 3, 2008, Pages 1015-1070

Reconfiguring property in three dimensions

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EID: 56849112706     PISSN: 00419494     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review
Times cited : (35)

References (268)
  • 1
    • 84900353349 scopus 로고    scopus 로고
    • William Blackstone, 2 Commentaries on the Laws of England *2 (Chicago 1979).
    • William Blackstone, 2 Commentaries on the Laws of England *2 (Chicago 1979).
  • 2
    • 33947542912 scopus 로고
    • Property in Land, 102
    • enumerating the Blackstonian package of private entitlements, See
    • See Robert C. Ellickson, Property in Land, 102 Yale L J 1315, 1362-63 (1993) (enumerating the Blackstonian package of private entitlements).
    • (1993) Yale L J , vol.1315 , pp. 1362-1363
    • Ellickson, R.C.1
  • 3
    • 84900364310 scopus 로고    scopus 로고
    • See, for example, id relating the evolution of standard land interests to the Blackstonian ideal
    • See, for example, id (relating the evolution of standard land interests to the Blackstonian ideal).
  • 4
    • 0000056271 scopus 로고    scopus 로고
    • Canons of Property Talk, or, Blackstone's Anxiety, 108
    • referring to the exclusive dominion view of property as artificial, See
    • See Carol M. Rose, Canons of Property Talk, or, Blackstone's Anxiety, 108 Yale L J 601, 612 (1998) (referring to the "exclusive dominion" view of property as "artificial");
    • (1998) Yale L J , vol.601 , pp. 612
    • Rose, C.M.1
  • 5
    • 0004057243 scopus 로고
    • 26 Yale, First-year property students] learn that only the ignorant think it meaningful to talk about owning things free and clear of further obligation
    • Bruce A. Ackerman, Private Property and the Constitution 26 (Yale 1977) ("[First-year property students] learn that only the ignorant think it meaningful to talk about owning things free and clear of further obligation.").
    • (1977) Private Property and the Constitution
    • Ackerman, B.A.1
  • 6
    • 0348199091 scopus 로고    scopus 로고
    • The "Bundle of Rights" Picture of Property, 43
    • See generally
    • See generally James E. Penner, The "Bundle of Rights" Picture of Property, 43 UCLA L Rev 711 (1996).
    • (1996) UCLA L Rev , vol.711
    • Penner, J.E.1
  • 7
    • 0347805667 scopus 로고    scopus 로고
    • cited in note 4, explaining that property law considers the way rights to use things may be parceled out amongst a host of competing resource users, See also, at
    • See also Ackerman, Private Property at 26 (cited in note 4) (explaining that property law "considers the way rights to use things may be parceled out amongst a host of competing resource users").
    • Private Property , pp. 26
    • Ackerman1
  • 8
    • 84900367644 scopus 로고    scopus 로고
    • A.M. Honore famously produced a list of no less than eleven leading incidents of property ownership. A.M. Honore, Ownership, in A.G. Guest, ed, Oxford Essays in Jurisprudence 107, 113 (Oxford 1961).
    • A.M. Honore famously produced a list of no less than eleven "leading incidents" of property ownership. A.M. Honore, Ownership, in A.G. Guest, ed, Oxford Essays in Jurisprudence 107, 113 (Oxford 1961).
  • 9
    • 0037678339 scopus 로고    scopus 로고
    • Property and the Right to Exclude, 77
    • arguing that while property owners enjoy a varied package of legal rights, the right to exclude is both necessary and sufficient for identifying the existence of property, See generally, for example
    • See generally, for example, Thomas W. Merrill, Property and the Right to Exclude, 77 Neb L Rev 730 (1998) (arguing that while property owners enjoy a varied package of legal rights, the right to exclude is both necessary and sufficient for identifying the existence of property).
    • (1998) Neb L Rev , vol.730
    • Merrill, T.W.1
  • 10
    • 84900359909 scopus 로고    scopus 로고
    • Without specific reference to Blackstone, Harold Demsetz's classic Toward a Theory of Property Rights posited that the law creates property rights over an object in order to allow a single owner to internalize the various externalities associated with that object.
    • Without specific reference to Blackstone, Harold Demsetz's classic Toward a Theory of Property Rights posited that the law creates property rights over an object in order to allow a single owner to internalize the various externalities associated with that object.
  • 11
    • 0001394870 scopus 로고
    • Toward a Theory of Property Rights, 57
    • See generally
    • See generally Harold Demsetz, Toward a Theory of Property Rights, 57 Am Econ Rev 347 (1967).
    • (1967) Am Econ Rev , vol.347
    • Demsetz, H.1
  • 12
    • 84900349522 scopus 로고    scopus 로고
    • Demsetz's insight about the centrality of a single owner as a means for internalizing externalities was further developed by scholars such as Richard Epstein, Michael Heller, and Francesco Parisi. See Richard A. Epstein, Holdouts, Externalities, and the Single Owner: One More Salute to Ronald Coase, 36 J L & Econ 553, 562-63 (1993) (stating that concentrating all the incidents of ownership in a single person minimizes the transaction costs of reallocating property to its best use);
    • Demsetz's insight about the centrality of a single owner as a means for internalizing externalities was further developed by scholars such as Richard Epstein, Michael Heller, and Francesco Parisi. See Richard A. Epstein, Holdouts, Externalities, and the Single Owner: One More Salute to Ronald Coase, 36 J L & Econ 553, 562-63 (1993) (stating that concentrating all the incidents of ownership in a single person minimizes the transaction costs of reallocating property to its best use);
  • 13
    • 84900361539 scopus 로고    scopus 로고
    • Michael A. Heller, The Tragedy of the Anti-commons: Property in Transition from Marx to Markets, 111 Harv L Rev 621, 631 (1998) (arguing that in regimes transitioning from socialism to private markets, the resources that emerge as private property most successfully are those that begin the transition with a near-standard bundle of rights assigned to a single person);
    • Michael A. Heller, The Tragedy of the Anti-commons: Property in Transition from Marx to Markets, 111 Harv L Rev 621, 631 (1998) (arguing that in regimes transitioning from socialism to private markets, the resources that emerge as private property most successfully are those that begin the transition with a near-standard bundle of rights assigned to a single person);
  • 14
    • 0036626837 scopus 로고    scopus 로고
    • Entropy in Property, 50 Am
    • discussing legal mechanisms that promote reunification of fragmented property in a single owner
    • Francesco Parisi, Entropy in Property, 50 Am J Comp L 595, 613-17 (2002) (discussing legal mechanisms that promote reunification of fragmented property in a single owner).
    • (2002) J Comp , vol.L 595 , pp. 613-617
    • Parisi, F.1
  • 15
    • 84900381514 scopus 로고    scopus 로고
    • See, for example, Frank H. Easterbrook, Intellectual Property Is Still Property, 13 Harv J L & Pub Policy 108, 118 (1990) (arguing that, except in the rarest case, the law should treat intellectual and tangible property identically).
    • See, for example, Frank H. Easterbrook, Intellectual Property Is Still Property, 13 Harv J L & Pub Policy 108, 118 (1990) (arguing that, except in the rarest case, the law should treat intellectual and tangible property identically).
  • 16
    • 0347314877 scopus 로고    scopus 로고
    • When Is Property Intellectual? The Leveraging Problem, 73
    • discussing special antitrust difficulties presented by intellectual property, But see
    • But see Mark R. Patterson, When Is Property Intellectual? The Leveraging Problem, 73 S Cal L Rev 1133, 1138-39 (2000) (discussing special antitrust difficulties presented by intellectual property).
    • (2000) S Cal L Rev , vol.1133 , pp. 1138-1139
    • Patterson, M.R.1
  • 17
    • 84900352917 scopus 로고    scopus 로고
    • See Robert W. Gordon, Paradoxical Property, in John Brewer and Susan Staves, eds, Early Modern Conceptions of Property 95, 100 (Routledge 1995) (critically discussing the historic process of reification by which estates became independent assets subject to ownership).
    • See Robert W. Gordon, Paradoxical Property, in John Brewer and Susan Staves, eds, Early Modern Conceptions of Property 95, 100 (Routledge 1995) (critically discussing the historic process of reification by which estates became independent assets subject to ownership).
  • 18
    • 0000259630 scopus 로고    scopus 로고
    • The Boundaries of Private Property, 108
    • identifying the bundle-of-legal-relations metaphor as a weak portrayal of the thingness of private property
    • Michael A. Heller, The Boundaries of Private Property, 108 Yale L J 1163, 1193 (1998) (identifying the bundle-of-legal-relations metaphor as a weak portrayal of the "thingness" of private property).
    • (1998) Yale L J , vol.1163 , pp. 1193
    • Heller, M.A.1
  • 19
    • 84900349868 scopus 로고    scopus 로고
    • It is important to note that Blackstone himself acknowledged the complexity of property notwithstanding the idealized conception. In this sense, what is referred to as the Blackstonian conception of property is a misnomer. Consider Ellickson, 102 Yale L J at 1362-63 & n 237 cited in note 2, summarizing what has subsequently become known as the Blackstonian Bundle of Rights but immediately admitting that this characterization is most uncharitable to Blackstone, who recognized many of the complexities and nuances of property law
    • It is important to note that Blackstone himself acknowledged the complexity of property notwithstanding the idealized conception. In this sense, what is referred to as the Blackstonian conception of property is a misnomer. Consider Ellickson, 102 Yale L J at 1362-63 & n 237 (cited in note 2) (summarizing what has subsequently become known as the "Blackstonian Bundle of Rights" but immediately admitting that this characterization "is most uncharitable to Blackstone," who recognized many of the complexities and nuances of property law).
  • 20
    • 84900372629 scopus 로고    scopus 로고
    • An important precursor to our Article is Shi-Ling Hsu, A Two-dimensional Framework for Analyzing Property Rights Regimes, 36 UC Davis L Rev 813 2003, which examined two of the three dimensions: owner and dominion
    • An important precursor to our Article is Shi-Ling Hsu, A Two-dimensional Framework for Analyzing Property Rights Regimes, 36 UC Davis L Rev 813 (2003), which examined two of the three dimensions: owner and dominion.
  • 21
    • 84900384018 scopus 로고    scopus 로고
    • Takings may also be employed to force an owner of an interest in a large asset to divide the asset to permit the creation of single owners over each of the smaller assets. Such was the case in Hawaii Housing Authority v Midkiff, 467 US 229 1984, where legislation forced owners to sell fee simple interests, through intermediaries, to their tenants in order to combat the problem of excessively concentrated land ownership in Hawaii
    • Takings may also be employed to force an owner of an interest in a large asset to divide the asset to permit the creation of single owners over each of the smaller assets. Such was the case in Hawaii Housing Authority v Midkiff, 467 US 229 (1984), where legislation forced owners to sell fee simple interests, through intermediaries, to their tenants in order to combat the problem of excessively concentrated land ownership in Hawaii.
  • 22
    • 84900355187 scopus 로고    scopus 로고
    • See id at 232-34
    • See id at 232-34.
  • 23
    • 84900377990 scopus 로고    scopus 로고
    • See Kenneth H. Young, 4 Anderson's American Law of Zoning § 25.03 at 284-89 Clark Boardman Callaghan 4th ed 1997, discussing the objectives of subdivision controls, Sometimes the restriction is imposed on metaphysical, rather than physical, alterations, as evidenced by the numerus clausus principle that prevents individuals from creating new property rights. A variant on this strategy, which we may label forced presentism, curbs or eliminates the owner's power to interfere with future owners' dominion over an asset. Thus, the law prevents unreasonable restraints on alienation and discharges servitudes in light of changed circumstances. Some applications of the doctrine of waste also employ forced presentism. These rules preserve as close to full dominion as possible over time
    • See Kenneth H. Young, 4 Anderson's American Law of Zoning § 25.03 at 284-89 (Clark Boardman Callaghan 4th ed 1997) (discussing the objectives of subdivision controls). Sometimes the restriction is imposed on metaphysical, rather than physical, alterations, as evidenced by the numerus clausus principle that prevents individuals from creating new property rights. A variant on this strategy, which we may label "forced presentism," curbs or eliminates the owner's power to interfere with future owners' dominion over an asset. Thus, the law prevents unreasonable restraints on alienation and discharges servitudes in light of changed circumstances. Some applications of the doctrine of waste also employ forced presentism. These rules preserve as close to full dominion as possible over time.
  • 24
    • 84900374029 scopus 로고    scopus 로고
    • Other legal mechanisms employed to this end include trusts, some kinds of servitudes, and many kinds of zoning or environmental laws. We include trusts in this category even though we acknowledge that, in some respects, trusts also fall under the category of fictional owners, as well as having characteristics of fictional assets
    • Other legal mechanisms employed to this end include trusts, some kinds of servitudes, and many kinds of zoning or environmental laws. We include trusts in this category even though we acknowledge that, in some respects, trusts also fall under the category of fictional owners, as well as having characteristics of fictional assets.
  • 25
    • 84900358888 scopus 로고    scopus 로고
    • See Heller, 111 Harv L Rev at 679-87 (cited in note 8) (introducing and discussing the tragedy of the anticommons, which results in the underuse of resources).
    • See Heller, 111 Harv L Rev at 679-87 (cited in note 8) (introducing and discussing "the tragedy of the anticommons," which results in the underuse of resources).
  • 27
    • 84900381508 scopus 로고    scopus 로고
    • Hodel v Irving, 481 US 704, 707-08 (1987) (discussing the process by which 40-, 80-, and 160-acre parcels became splintered into multiple undivided interests in land, with some parcels having hundreds, and many parcels having dozens, of owners).
    • Hodel v Irving, 481 US 704, 707-08 (1987) (discussing the process by which "40-, 80-, and 160-acre parcels became splintered into multiple undivided interests in land, with some parcels having hundreds, and many parcels having dozens, of owners").
  • 30
    • 84900352863 scopus 로고    scopus 로고
    • See Part IV.A
    • See Part IV.A.
  • 31
    • 43749092173 scopus 로고    scopus 로고
    • Land Assembly Districts, 121
    • See, for example
    • See, for example, Michael Heller and Rick Hills, Land Assembly Districts, 121 Harv L Rev 1465, 1467 (2008).
    • (2008) Harv L Rev , vol.1465 , pp. 1467
    • Heller, M.1    Hills, R.2
  • 32
    • 84900353861 scopus 로고    scopus 로고
    • See Part IV.D
    • See Part IV.D.
  • 33
    • 84900351998 scopus 로고    scopus 로고
    • See Abraham Bell, Private Takings 33-37 (unpublished manuscript, 2007) (discussing government-mediated private takings in which the government uses its eminent domain power to allow private actors to seize property).
    • See Abraham Bell, Private Takings 33-37 (unpublished manuscript, 2007) (discussing government-mediated private takings in which the government uses its eminent domain power to allow private actors to seize property).
  • 34
    • 0043197486 scopus 로고    scopus 로고
    • See, § 50.07[4, 5] at, to, Matthew Bender, ed
    • See Richard R. Powell, 7 Powell on Real Property § 50.07[4]-[5] at 50-47 to 50-51 (Matthew Bender 2007) (Michael Allan Wolf, ed).
    • (2007) 7 Powell on Real Property
    • Powell, R.R.1
  • 35
    • 84900382821 scopus 로고    scopus 로고
    • 345 NYS2d 828 (Sur Ct 1973).
    • 345 NYS2d 828 (Sur Ct 1973).
  • 36
    • 84900383003 scopus 로고    scopus 로고
    • See id at 829
    • See id at 829.
  • 37
    • 84900383780 scopus 로고    scopus 로고
    • See id at 830 failing to address the issue as one of partition but rather describing it as one of resolving ownership
    • See id at 830 (failing to address the issue as one of partition but rather describing it as one of resolving ownership).
  • 38
    • 0001394870 scopus 로고
    • Toward a Theory of Property Rights, 57
    • Harold Demsetz, Toward a Theory of Property Rights, 57 Am Econ Rev 347 (1967).
    • (1967) Am Econ Rev , vol.347
    • Demsetz, H.1
  • 39
    • 84900347940 scopus 로고    scopus 로고
    • See id at 354
    • See id at 354.
  • 40
    • 84900375814 scopus 로고    scopus 로고
    • Admittedly, one might conceive of another dimension of property specification: time. However, as our example demonstrates, durability of property rights is easily accommodated within the dimensions of asset and dominion
    • Admittedly, one might conceive of another dimension of property specification: time. However, as our example demonstrates, durability of property rights is easily accommodated within the dimensions of asset and dominion.
  • 41
    • 40749084517 scopus 로고    scopus 로고
    • See, for example, 613 SE2d 442, 444-45 Va, concerning a servitude forcing the owner of a historical home to preserve its appearance
    • See, for example, United States v Blackman, 613 SE2d 442, 444-45 (Va 2005) (concerning a servitude forcing the owner of a historical home to preserve its appearance).
    • (2005) United States v Blackman
  • 43
    • 84900363520 scopus 로고    scopus 로고
    • See id at 1347-48
    • See id at 1347-48.
  • 44
    • 84900371524 scopus 로고    scopus 로고
    • Reification of rights, together with a post-Hohfeldian view of property rights as a bundle of sticks, poses a challenge for those examining the three dimensions of property. Specifically, if property is merely a collection of owner rights-dominion, in our terminology-what does it mean to speak of a property asset? The answer is that even when the defined property asset is purely an abstraction, it is still conceived of as distinct from the dominion over it. For instance, if the property right consists of a right to profit from an idea, the idea is the asset; and the profit right, the dominion. Property rules always partake of distinct dimensions of dominion and asset because they are rights in rem. Thus, even if the protected res is merely abstract, it must be defined or conceived of in some fashion before one can proceed to defining the rights comprising owner dominion
    • Reification of rights, together with a post-Hohfeldian view of property rights as a "bundle of sticks," poses a challenge for those examining the three dimensions of property. Specifically, if property is merely a collection of owner rights-dominion, in our terminology-what does it mean to speak of a property "asset"? The answer is that even when the defined property asset is purely an abstraction, it is still conceived of as distinct from the dominion over it. For instance, if the property right consists of a right to profit from an idea, the idea is the asset; and the profit right, the dominion. Property rules always partake of distinct dimensions of dominion and asset because they are rights in rem. Thus, even if the protected res is merely abstract, it must be defined or conceived of in some fashion before one can proceed to defining the rights comprising owner dominion.
  • 46
    • 84900348279 scopus 로고    scopus 로고
    • See id at 33-54 using the tenant-farmer-landlord relationship as an example of how parties will maximize value by shifting contract form
    • See id at 33-54 (using the tenant-farmer-landlord relationship as an example of how parties will maximize value by shifting contract form).
  • 47
    • 84900360572 scopus 로고    scopus 로고
    • Barzel's concept of property rights differs significantly from that generally embraced by legal scholars and therefore requires some initial explanation. In contrast with the theories discussed in the previous Part, Barzel's theory views property as a post hoc description of the ability to enjoy value from a given service or asset. Notably, this description of property differs from a legal package of rights or even a legal recognition of the ability to enjoy value. See id at 3.
    • Barzel's concept of property rights differs significantly from that generally embraced by legal scholars and therefore requires some initial explanation. In contrast with the theories discussed in the previous Part, Barzel's theory views property as a post hoc description of the ability to enjoy value from a given service or asset. Notably, this description of property differs from a legal package of rights or even a legal recognition of the ability to enjoy value. See id at 3.
  • 48
    • 0005303148 scopus 로고    scopus 로고
    • What Happened to Property in Law and Economics?, 111
    • See also
    • See also Thomas W. Merrill and Henry E. Smith, What Happened to Property in Law and Economics?, 111 Yale L J 357, 358 (2001):
    • (2001) Yale L J , vol.357 , pp. 358
    • Merrill, T.W.1    Smith, H.E.2
  • 49
    • 84900350802 scopus 로고    scopus 로고
    • pon closer inspection, all this property-talk among legal economists is not about any distinctive type of right. To [] a greater extent than even the legal scholars, modern economists assume that property consists of an ad hoc collection of rights in resources. Indeed, there is a tendency among economists to use the term property 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. Quoting Richard A. Posner, Economic Analysis of Law 53 (Aspen 5th ed 1998).
    • [U]pon closer inspection, all this property-talk among legal economists is not about any distinctive type of right. To [] a greater extent than even the legal scholars, modern economists assume that property consists of an ad hoc collection of rights in resources. Indeed, there is a tendency among economists to use the term property "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." Quoting Richard A. Posner, Economic Analysis of Law 53 (Aspen 5th ed 1998).
  • 50
    • 84900352977 scopus 로고    scopus 로고
    • The touchstone of Barzel's analysis is transaction cost economics as pioneered by Ronald Coase. In relevant part, this branch of economics treats legal entitlements as unimportant so long as transaction costs are sufficiently small. See R.H. Coase, The Problem of Social Cost, 3 J L & Econ 1, 1-15 1960, Thus, Barzel had good reason to relegate questions of legal property to a secondary role in his investigation. Nonetheless, Barzel's discussion of property rights is valuable in delineating the interplay of the dimensions of property as understood by more traditional property scholarship
    • The touchstone of Barzel's analysis is transaction cost economics as pioneered by Ronald Coase. In relevant part, this branch of economics treats legal entitlements as unimportant so long as transaction costs are sufficiently small. See R.H. Coase, The Problem of Social Cost, 3 J L & Econ 1, 1-15 (1960). Thus, Barzel had good reason to relegate questions of legal property to a secondary role in his investigation. Nonetheless, Barzel's discussion of property rights is valuable in delineating the interplay of the dimensions of property as understood by more traditional property scholarship.
  • 51
    • 0003534837 scopus 로고    scopus 로고
    • cited in note 36, explaining that by setting a price ceiling below the market-clearing price, a part of the rights to the gasoline was placed in the public domain and could be acquired by buyers who joined the queue, See, at
    • See Barzel, Economic Analysis of Property Rights at 24 (cited in note 36) (explaining that by setting a price ceiling below the market-clearing price, a part of the rights to the gasoline was placed in the public domain and could be acquired by buyers who joined the queue).
    • Economic Analysis of Property Rights , pp. 24
    • Barzel1
  • 52
    • 84900360892 scopus 로고    scopus 로고
    • Id at 27-29. Auxiliary services included pumping gas, washing windows, and checking engine oil.
    • Id at 27-29. Auxiliary services included pumping gas, washing windows, and checking engine oil.
  • 53
    • 84900359222 scopus 로고    scopus 로고
    • See id at 78-80 explaining how contractual arrangements between workers and employers vary in order to expose each of the parties to different levels of variability
    • See id at 78-80 (explaining how contractual arrangements between workers and employers vary in order to expose each of the parties to different levels of variability).
  • 54
    • 84900372669 scopus 로고    scopus 로고
    • See id at 45-49 discussing how lease contract attributes, such as maintenance responsibilities, are assigned to the party that can better affect the value of the output by manipulating that attribute
    • See id at 45-49 (discussing how lease contract attributes, such as maintenance responsibilities, are assigned to the party that can better affect the value of the output by manipulating that attribute).
  • 55
    • 84900370291 scopus 로고    scopus 로고
    • See id at 60-62, 64 noting that fire insurers are the efficient owners of a building's attribute of fire hazard since fire insurers, rather than titleholders, are specialists in minimizing fire hazard
    • See id at 60-62, 64 (noting that fire insurers are the "efficient owners" of a building's attribute of fire hazard since fire insurers, rather than titleholders, are specialists in minimizing fire hazard).
  • 56
    • 84900350843 scopus 로고    scopus 로고
    • See id at 65-84
    • See id at 65-84.
  • 57
    • 84900377929 scopus 로고    scopus 로고
    • See id at 33-54 (Together owners of labor and owners of land ... will adopt the contract form that generates the largest net output value.).
    • See id at 33-54 ("Together owners of labor and owners of land ... will adopt the contract form that generates the largest net output value.").
  • 58
    • 84900382698 scopus 로고    scopus 로고
    • See id at 55-64 examining the complex structuring of rights associated with large-scale equipment and office buildings
    • See id at 55-64 (examining the complex structuring of rights associated with large-scale equipment and office buildings).
  • 59
    • 84900379585 scopus 로고    scopus 로고
    • See id at 11 (The presence of positive transaction costs is what makes the study of property rights significant.).
    • See id at 11 ("The presence of positive transaction costs is what makes the study of property rights significant.").
  • 60
    • 84900350392 scopus 로고    scopus 로고
    • See id at 51-53
    • See id at 51-53.
  • 61
    • 84900371817 scopus 로고    scopus 로고
    • See id at 81 defining the scope of the firm as the set of contracts whose variability is contractually guaranteed by common equity capital
    • See id at 81 (defining the scope of the firm as "the set of contracts whose variability is contractually guaranteed by common equity capital").
  • 62
    • 44649197264 scopus 로고    scopus 로고
    • The description of corporations as a network of contracts was proposed by Michael Jensen and William Meckling. See Michael C. Jensen and William H. Meckling, Theory of the Firm: Managerial Behavior, Agency Costs, and Ownership Structure, 3 J Fin Econ 305, 310-11 1976, describing most organizations as legal fictions, which serve as a nexus for a set of contracting relationships among individuals, emphasis omitted
    • The description of corporations as a network of contracts was proposed by Michael Jensen and William Meckling. See Michael C. Jensen and William H. Meckling, Theory of the Firm: Managerial Behavior, Agency Costs, and Ownership Structure, 3 J Fin Econ 305, 310-11 (1976) (describing most organizations as legal fictions, "which serve as a nexus for a set of contracting relationships among individuals") (emphasis omitted).
  • 63
    • 84900381326 scopus 로고    scopus 로고
    • Whereas Jensen and Meckling's theory is referred to as nexus of contracts, Barzel refers to a firm as a nexus of outcome guarantees. Barzel, Economic Analysis of Property Rights at 81 (cited in note 36).
    • Whereas Jensen and Meckling's theory is referred to as "nexus of contracts," Barzel refers to a firm as a "nexus of outcome guarantees." Barzel, Economic Analysis of Property Rights at 81 (cited in note 36).
  • 64
    • 84900367213 scopus 로고    scopus 로고
    • See note 38
    • See note 38.
  • 65
    • 0042170044 scopus 로고    scopus 로고
    • The Rhino's Horn: Incomplete Property Rights and the Optimal Value of an Asset, 31
    • discussing optimizing asset value for owners by partial destruction of the asset, See generally
    • See generally Douglas W. Allen, The Rhino's Horn: Incomplete Property Rights and the Optimal Value of an Asset, 31 J Legal Stud 339 (2002) (discussing optimizing asset value for owners by partial destruction of the asset).
    • (2002) J Legal Stud , vol.339
    • Allen, D.W.1
  • 66
    • 84900371685 scopus 로고    scopus 로고
    • See 17 USC § 106(4) (2000).
    • See 17 USC § 106(4) (2000).
  • 67
    • 56849089682 scopus 로고
    • Controlling the Market Power of Performing Rights Societies: An Administrative Substitute for Antitrust Regulation, 72
    • describing how [t]he ephemeral nature of public performances [that] made it difficult for copyright owners to detect unauthorized performances of their works led to the creation of organizations for the enforcement of performance rights, See, for example
    • See, for example, Jay M. Fujitani, Comment, Controlling the Market Power of Performing Rights Societies: An Administrative Substitute for Antitrust Regulation, 72 Cal L Rev 103, 105 (1984) (describing how "[t]he ephemeral nature of public performances [that] made it difficult for copyright owners to detect unauthorized performances of their works" led to the creation of organizations for the enforcement of performance rights).
    • (1984) Cal L Rev , vol.103 , pp. 105
    • Jay, M.1    Fujitani, C.2
  • 68
    • 34250173786 scopus 로고    scopus 로고
    • See W Jonathan Cardi, Uber-middleman: Reshaping the Broken Landscape of Music Copyright, 92 Iowa L Rev 835, 844 (2007) (ASCAP... is famous for stories of its employees, cloaked in ASCAP-emblazoned jackets, patrolling local concerts, stores, restaurants, and nightclubs in search of... businesses that perform songs publicly without permission.).
    • See W Jonathan Cardi, Uber-middleman: Reshaping the Broken Landscape of Music Copyright, 92 Iowa L Rev 835, 844 (2007) ("ASCAP... is famous for stories of its employees, cloaked in ASCAP-emblazoned jackets, patrolling local concerts, stores, restaurants, and nightclubs in search of... businesses that perform songs publicly without permission.").
  • 69
    • 0039274458 scopus 로고
    • An Economic Analysis of Copyright Collectives, 78
    • See also
    • See also Stanley M. Besen, Sheila N. Kirby, and Steven C. Salop, An Economic Analysis of Copyright Collectives, 78 Va L Rev 383, 385-90 (1992).
    • (1992) Va L Rev , vol.383 , pp. 385-390
    • Besen, S.M.1    Kirby, S.N.2    Salop, S.C.3
  • 70
    • 0346511083 scopus 로고    scopus 로고
    • Contracting into Liability Rules: Intellectual Property Rights and Collective Rights Organizations, 84
    • See
    • See Robert P. Merges, Contracting into Liability Rules: Intellectual Property Rights and Collective Rights Organizations, 84 Cal L Rev 1293, 1303 (1996).
    • (1996) Cal L Rev , vol.1293 , pp. 1303
    • Merges, R.P.1
  • 71
    • 84900372169 scopus 로고    scopus 로고
    • An alternative owner-asset adjustment might involve copyright owners transferring the copyrights themselves to the collectives
    • An alternative owner-asset adjustment might involve copyright owners transferring the copyrights themselves to the collectives.
  • 72
    • 84900355874 scopus 로고    scopus 로고
    • See Inducing Infringement of Copyrights Act of 2004, Hearings on S 2560 before the Senate Committee on the Judiciary, 108th Cong, 2d Sess (2004) (testimony of Mitch Bainwol, Chairman and CEO, Recording Industry Association of America), online at http://judiciary.senate.gov/testimony.cfm?id=1276&wit- id=3753 (visited June 8, 2008).
    • See Inducing Infringement of Copyrights Act of 2004, Hearings on S 2560 before the Senate Committee on the Judiciary, 108th Cong, 2d Sess (2004) (testimony of Mitch Bainwol, Chairman and CEO, Recording Industry Association of America), online at http://judiciary.senate.gov/testimony.cfm?id=1276&wit- id=3753 (visited June 8, 2008).
  • 73
    • 84900347412 scopus 로고    scopus 로고
    • See Digital Millennium Copyright Act (DMCA), Pub L No 105-304, 112 Stat 2860 (1998), codified in relevant part at 17 USC §§ 1201-05 (2000).
    • See Digital Millennium Copyright Act (DMCA), Pub L No 105-304, 112 Stat 2860 (1998), codified in relevant part at 17 USC §§ 1201-05 (2000).
  • 74
    • 0004274314 scopus 로고    scopus 로고
    • For a discussion of the content industry's role in the enactment of the DMCA, see, Prometheus
    • For a discussion of the content industry's role in the enactment of the DMCA, see Jessica Litman, Digital Copyright 122-49 (Prometheus 2001).
    • (2001) Digital Copyright , pp. 122-149
    • Litman, J.1
  • 75
    • 0043237656 scopus 로고    scopus 로고
    • See Pamela Samuelson and Suzanne Scotchmer, The Law and Economics of Reverse Engineering, 111 Yale L J 1575, 1640 (2002) (pointing out that [m]ost users have neither the inclination nor the ability to circumvent a technical protection measure).
    • See Pamela Samuelson and Suzanne Scotchmer, The Law and Economics of Reverse Engineering, 111 Yale L J 1575, 1640 (2002) (pointing out that "[m]ost users have neither the inclination nor the ability to circumvent a technical protection measure").
  • 76
    • 84900366111 scopus 로고    scopus 로고
    • See also Jack Goldsmith and Tim Wu, Who Controls the Internet? 107-25 (Oxford 2006) (describing how the litigation that marked the demise of Kazaa also meant that file trading groups avoiding government detection would be harder to find by ordinary users).
    • See also Jack Goldsmith and Tim Wu, Who Controls the Internet? 107-25 (Oxford 2006) (describing how the litigation that marked the demise of Kazaa also meant that file trading groups avoiding government detection would be harder to find by ordinary users).
  • 77
    • 33846167738 scopus 로고    scopus 로고
    • See, for example, Peter K. Yu, Anticircumvention and Anti-anticircumvention, 84 Denver U L Rev 13, 23 (2006) (noting that there are no perfect, hacker-proof technological protection measures);
    • See, for example, Peter K. Yu, Anticircumvention and Anti-anticircumvention, 84 Denver U L Rev 13, 23 (2006) (noting that there are "no perfect, hacker-proof technological protection measures);
  • 78
    • 84900373103 scopus 로고    scopus 로고
    • Fred von Lohmann, Measuring the Digital Millennium Copyright Act against the Darknet: Implications for the Regulation of Technological Protection Measures, 24 Loyola LA Enter L Rev 635, 638 (2004) (Proponents of the DMCA's anti-circumvention provisions were not naïve about the technological infallibility of [technical protection measures]. They admitted that no technology would be foolproof against every hacker bent on compromising it.).
    • Fred von Lohmann, Measuring the Digital Millennium Copyright Act against the Darknet: Implications for the Regulation of Technological Protection Measures, 24 Loyola LA Enter L Rev 635, 638 (2004) ("Proponents of the DMCA's anti-circumvention provisions were not naïve about the technological infallibility of [technical protection measures]. They admitted that no technology would be foolproof against every hacker bent on compromising it.").
  • 80
    • 84900350015 scopus 로고    scopus 로고
    • But see Paul Ohm, The Myth of the Superuser: Fear, Risk, and Harm Online, 41 UC Davis L Rev 1327, 1398 (2008).
    • But see Paul Ohm, The Myth of the Superuser: Fear, Risk, and Harm Online, 41 UC Davis L Rev 1327, 1398 (2008).
  • 82
    • 0036811659 scopus 로고    scopus 로고
    • Indeed, track fillers, or filler songs, are often called throwaways. Consider Glynn S. Lunney, Jr., Fair Use and Market Failure: Sony Revisited, 82 BU L Rev 975, 1028 n 193 (2002) (suggesting that a full-length CD consists of four tracks that consumers want and another six to eight tracks of filler songs).
    • Indeed, track fillers, or filler songs, are often called "throwaways." Consider Glynn S. Lunney, Jr., Fair Use and Market Failure: Sony Revisited, 82 BU L Rev 975, 1028 n 193 (2002) (suggesting that "a full-length CD consists of four tracks that consumers want and another six to eight tracks of filler songs").
  • 83
    • 56849118921 scopus 로고    scopus 로고
    • Mistrust-based Digital Rights Management
    • See, for example
    • See, for example, Randal C. Picker, Mistrust-based Digital Rights Management, 5 J Telecommun & High Tech L 47, 67 (2006).
    • (2006) 5 J Telecommun & High Tech , vol.L 47 , pp. 67
    • Picker, R.C.1
  • 84
    • 84900383000 scopus 로고    scopus 로고
    • See Joseph Palenchar, NPD: Illegal Downloads Outpacing Legal Downloads, Twice (Mar 14, 2007), online at http://www.twice.com/article/ CA6424429.html (visited June 8, 2008).
    • See Joseph Palenchar, NPD: Illegal Downloads Outpacing Legal Downloads, Twice (Mar 14, 2007), online at http://www.twice.com/article/ CA6424429.html (visited June 8, 2008).
  • 85
    • 84900363886 scopus 로고    scopus 로고
    • Rent-seeking is prevalent in the production of legal property rules, as in any other political activity, and there is no reason to believe therefore that every property change will improve net welfare. Indeed, we discuss a number of badly designed property definitions in Part IV
    • Rent-seeking is prevalent in the production of legal property rules, as in any other political activity, and there is no reason to believe therefore that every property change will improve net welfare. Indeed, we discuss a number of badly designed property definitions in Part IV.
  • 86
    • 0003534837 scopus 로고    scopus 로고
    • cited in note 36, discussing the government's role in delineating property rights through dispute settlement and by placing assets which are very costly to police into the public domain, See, at
    • See Barzel, Economic Analysis of Property Rights at 98-104 (cited in note 36) (discussing the government's role in delineating property rights through dispute settlement and by placing assets which are very costly to police into the public domain);
    • Economic Analysis of Property Rights , pp. 98-104
    • Barzel1
  • 87
    • 0042170036 scopus 로고    scopus 로고
    • Richard A. Epstein, The Allocation of the Commons: Parking on Public Roads, 31 J Legal Stud 515, 518 (2002) (asserting that where there is little risk of overuse of a common-pool asset, gains from more efficient allocation of the asset may be offset by increases in administrative costs).
    • Richard A. Epstein, The Allocation of the Commons: Parking on Public Roads, 31 J Legal Stud 515, 518 (2002) (asserting that where there is little risk of overuse of a common-pool asset, gains from more efficient allocation of the asset may be offset by increases in administrative costs).
  • 89
    • 84900353885 scopus 로고    scopus 로고
    • See generally Merrill and Smith, 111 Yale L J 357 (cited in note 38);
    • See generally Merrill and Smith, 111 Yale L J 357 (cited in note 38);
  • 90
    • 0001845692 scopus 로고    scopus 로고
    • Optimal Standardization in the Law of Property: The Numerus Clausus Principle, 110
    • Thomas W. Merrill and Henry E. Smith, Optimal Standardization in the Law of Property: The Numerus Clausus Principle, 110 Yale L J 1 (2000);
    • (2000) Yale L J , vol.1
    • Merrill, T.W.1    Smith, H.E.2
  • 91
    • 0345975442 scopus 로고    scopus 로고
    • The Property/Contract Interface
    • 773
    • Thomas W. Merrill and Henry E. Smith, The Property/Contract Interface, 101 Colum L Rev 773 (2001).
    • (2001) Colum L Rev , vol.101
    • Merrill, T.W.1    Smith, H.E.2
  • 92
    • 84900378105 scopus 로고    scopus 로고
    • See Merrill and Smith, 110 Yale L J at 26-27 (cited in note 71) (justifying the numerus clausus principle as a means for controlling an externality involving measurement costs: Parties who create new property rights will not take into account the full magnitude of the measurement costs they impose on strangers to the title).
    • See Merrill and Smith, 110 Yale L J at 26-27 (cited in note 71) (justifying the numerus clausus principle as a means for controlling an "externality involving measurement costs: Parties who create new property rights will not take into account the full magnitude of the measurement costs they impose on strangers to the title").
  • 93
    • 84900354164 scopus 로고    scopus 로고
    • See Merrill and Smith, 111 Yale L J at 394 (cited in note 38).
    • See Merrill and Smith, 111 Yale L J at 394 (cited in note 38).
  • 94
    • 84900382382 scopus 로고    scopus 로고
    • See Merrill and Smith, 110 Yale L J at 4 (cited in note 71).
    • See Merrill and Smith, 110 Yale L J at 4 (cited in note 71).
  • 95
    • 18144390196 scopus 로고    scopus 로고
    • See Abraham Bell and Gideon Parchomovsky, A Theory of Property, 90 Cornell L Rev 531, 533 (2005) (Because it is practically impossible for contracts to arrange most of society's relationships, property law determines most of the legal interactions regarding assets among people.);
    • See Abraham Bell and Gideon Parchomovsky, A Theory of Property, 90 Cornell L Rev 531, 533 (2005) ("Because it is practically impossible for contracts to arrange most of society's relationships, property law determines most of the legal interactions regarding assets among people.");
  • 96
    • 84900363158 scopus 로고    scopus 로고
    • Merrill and Smith, 111 Yale L J at 393-94 (cited in note 38) (arguing that if property is a bundle of rights, some bundles are much easier to communicate than others and therefore have an information-cost advantage).
    • Merrill and Smith, 111 Yale L J at 393-94 (cited in note 38) (arguing that if property is a bundle of rights, some bundles are much easier to communicate than others and therefore have an information-cost advantage).
  • 97
    • 84900368576 scopus 로고    scopus 로고
    • To be sure, there is no reason to be certain that lawmakers will act correctly in order to ensure optimal value preservation for future generations
    • To be sure, there is no reason to be certain that lawmakers will act correctly in order to ensure optimal value preservation for future generations.
  • 99
    • 84900378511 scopus 로고    scopus 로고
    • Heller, 108 Yale L J 1163 (cited in note 11);
    • Heller, 108 Yale L J 1163 (cited in note 11);
  • 101
    • 0006996735 scopus 로고
    • Ethics, Economics, and the Law of Property
    • The concept was first introduced by Frank Michelman. See, J. Roland Pennock and John W Chapman, eds, NYU
    • The concept was first introduced by Frank Michelman. See Frank I. Michelman, Ethics, Economics, and the Law of Property, in J. Roland Pennock and John W Chapman, eds, NOMOS XXIV: Ethics, Economics, and the Law 3, 6 (NYU 1982).
    • (1982) NOMOS XXIV: Ethics, Economics, and the Law , vol.3 , pp. 6
    • Michelman, F.I.1
  • 104
    • 84900349146 scopus 로고    scopus 로고
    • See id at 1177 noting how judges reduced the costs of intertemporal fragmentation by restricting the fee tail
    • See id at 1177 (noting how judges reduced the costs of intertemporal fragmentation by restricting the fee tail).
  • 105
    • 84900372798 scopus 로고    scopus 로고
    • See id at 1183-84 (explaining how fragmenting governance among a group of owners may promote good fragmentation, 1165-66 noting that [b]ecause of high transaction costs, strategic behaviors, and cognitive biases, people may find it easier to divide property than to recombine it
    • See id at 1183-84 (explaining how fragmenting governance among a group of owners may promote good fragmentation), 1165-66 (noting that "[b]ecause of high transaction costs, strategic behaviors, and cognitive biases, people may find it easier to divide property than to recombine it").
  • 106
    • 84900363601 scopus 로고    scopus 로고
    • See id at 1183-85 predicting that without the restriction of members' veto rights, common-interest communities may fall further and further behind their productivity frontier
    • See id at 1183-85 (predicting that without the restriction of members' veto rights, common-interest communities "may fall further and further behind their productivity frontier").
  • 107
    • 84900379938 scopus 로고    scopus 로고
    • 50 Am
    • cited in note 8, See, at
    • See Parisi, 50 Am J Comp L at 626-27 (cited in note 8).
    • J Comp , vol.50 , pp. 626-627
    • Parisi1
  • 108
    • 84900348652 scopus 로고    scopus 로고
    • See id at 627
    • See id at 627.
  • 109
    • 3142707241 scopus 로고    scopus 로고
    • For other discussions of the fragmentation problem in property, see generally Lee Anne Fennell, Common Interest Tragedies, 98 Nw U L Rev 907 (2004);
    • For other discussions of the fragmentation problem in property, see generally Lee Anne Fennell, Common Interest Tragedies, 98 Nw U L Rev 907 (2004);
  • 110
    • 84900377295 scopus 로고    scopus 로고
    • Reza Dibadj, Regulatory Givings and the Anticommons, 64 Ohio St L J 1041 (2003);
    • Reza Dibadj, Regulatory Givings and the Anticommons, 64 Ohio St L J 1041 (2003);
  • 112
    • 0037986424 scopus 로고    scopus 로고
    • Cyberspace as Place and the Tragedy of the Digital Anticommons, 91
    • Dan Hunter, Cyberspace as Place and the Tragedy of the Digital Anticommons, 91 Cal L Rev 439, 509-13 (2003);
    • (2003) Cal L Rev , vol.439 , pp. 509-513
    • Hunter, D.1
  • 113
    • 0034354977 scopus 로고    scopus 로고
    • Symmetric Tragedies: Commons and Anticommons, 43
    • James M. Buchanan and Yong J. Yoon, Symmetric Tragedies: Commons and Anticommons, 43 J L & Econ 1 (2000).
    • (2000) J L & Econ , vol.1
    • Buchanan, J.M.1    Yoon, Y.J.2
  • 114
    • 84900356435 scopus 로고    scopus 로고
    • It should be noted, though, that Parisi also analyzes the dominion-related aspects of fragmentation. See Parisi, 50 Am J Comp L at 609-10, 614-15 cited in note 8
    • It should be noted, though, that Parisi also analyzes the dominion-related aspects of fragmentation. See Parisi, 50 Am J Comp L at 609-10, 614-15 (cited in note 8).
  • 115
    • 84900381097 scopus 로고    scopus 로고
    • See also Ben W.F. Depoorter and Francesco Parisi, Fragmentation of Property Rights: A Functional Interpretation of the Law of Servitudes, 3 Global Jurist Frontiers, Issue 1, Article 2, at 3 (2003), online at http://www.bepress.com/gj/frontiers/vol3/iss1/art2/ (visited June 8, 2008).
    • See also Ben W.F. Depoorter and Francesco Parisi, Fragmentation of Property Rights: A Functional Interpretation of the Law of Servitudes, 3 Global Jurist Frontiers, Issue 1, Article 2, at 3 (2003), online at http://www.bepress.com/gj/frontiers/vol3/iss1/art2/ (visited June 8, 2008).
  • 116
    • 56849112685 scopus 로고
    • The Comedy of the Commons: Custom, Commerce, and Inherently Public Property, 53
    • Carol M. Rose, The Comedy of the Commons: Custom, Commerce, and Inherently Public Property, 53 U Chi L Rev 711, 720 (1986).
    • (1986) U Chi L Rev , vol.711 , pp. 720
    • Rose, C.M.1
  • 117
    • 84900367603 scopus 로고    scopus 로고
    • Id
    • Id.
  • 118
    • 84900360633 scopus 로고    scopus 로고
    • Id
    • Id.
  • 119
    • 84900382326 scopus 로고    scopus 로고
    • See id at 722
    • See id at 722.
  • 120
    • 84900362786 scopus 로고    scopus 로고
    • See id at 752 (Without public prescription doctrine, each owner along the way might bar the passage at will and siphon off its public value.).
    • See id at 752 ("Without public prescription doctrine, each owner along the way might bar the passage at will and siphon off its public value.").
  • 121
    • 84900355459 scopus 로고    scopus 로고
    • Id at 758
    • Id at 758.
  • 122
    • 84900357963 scopus 로고    scopus 로고
    • Id
    • Id.
  • 123
    • 84900362903 scopus 로고    scopus 로고
    • Id at 767-68
    • Id at 767-68.
  • 124
    • 34247133790 scopus 로고    scopus 로고
    • Should Property or Liability Rules Govern Information?, 85
    • explaining how the failure of the FCCs unbundling program in the telecommunications industry can be attributed to a misunderstanding of semicommons property, where one firm has legal access to use the private property of another
    • Compare Mark A. Lemley and Philip J. Weiser, Should Property or Liability Rules Govern Information?, 85 Tex L Rev 783, 812 (2007) (explaining how the failure of the FCCs unbundling program in the telecommunications industry can be attributed to a misunderstanding of "semicommons" property, where one firm has legal access to use the private property of another).
    • (2007) Tex L Rev , vol.783 , pp. 812
    • Mark, C.1    Lemley, A.2    Weiser, P.J.3
  • 125
    • 0348126262 scopus 로고    scopus 로고
    • Exclusivity in Network Industries
    • See, 673
    • See Carl Shapiro, Exclusivity in Network Industries, 7 Geo Mason L Rev 673, 673 (1999).
    • (1999) Geo Mason L Rev , vol.7 , pp. 673
    • Shapiro, C.1
  • 126
    • 0014413249 scopus 로고
    • The Tragedy of the Commons, 162
    • See
    • See Garrett Hardin, The Tragedy of the Commons, 162 Science 1243, 1244 (1968).
    • (1968) Science , vol.1243 , pp. 1244
    • Hardin, G.1
  • 128
    • 84900363830 scopus 로고    scopus 로고
    • Id at 556
    • Id at 556.
  • 129
    • 84900347590 scopus 로고    scopus 로고
    • See id at 557 maintaining that the purpose of all legal rules is to minimize the sum of the costs that are associated with these two forms of bargaining obstacles
    • See id at 557 (maintaining that "the purpose of all legal rules is to minimize the sum of the costs that are associated with these two forms of bargaining obstacles").
  • 130
    • 84900369694 scopus 로고    scopus 로고
    • See id at 561
    • See id at 561.
  • 131
    • 84900350504 scopus 로고    scopus 로고
    • See id at 562 basing this statement on [a] rough empirical guess
    • See id at 562 (basing this statement on "[a] rough empirical guess").
  • 132
    • 84900359733 scopus 로고    scopus 로고
    • See id at 562-63
    • See id at 562-63.
  • 133
    • 84900382261 scopus 로고    scopus 로고
    • Id at 562 emphasis added
    • Id at 562 (emphasis added).
  • 134
    • 84900362537 scopus 로고    scopus 로고
    • 21 US 543 1823
    • 21 US 543 (1823).
  • 135
    • 85011484781 scopus 로고    scopus 로고
    • See also Eric Kades, History and Interpretation of the Great Case of Johnson v. MTntosh, 19 L & Hist Rev 67, 69 (2001) (contending that the M'Intosh rule served as a cost-effective way for Europeans to expropriate Native American lands but that there was no real dispute in this case since the parties did not truly have conflicting claims to the land).
    • See also Eric Kades, History and Interpretation of the Great Case of Johnson v. MTntosh, 19 L & Hist Rev 67, 69 (2001) (contending that the M'Intosh rule served as a cost-effective way for Europeans to expropriate Native American lands but that there was no real dispute in this case since the parties did not truly have conflicting claims to the land).
  • 136
    • 56849087807 scopus 로고    scopus 로고
    • Chief Justice John Marshall and the Doctrine of Discovery: Friend or Foe to the Indians?
    • For other discussions of the doctrine of discovery, see generally, 125
    • For other discussions of the doctrine of discovery, see generally Alex Tallchief Skibine, Chief Justice John Marshall and the Doctrine of Discovery: Friend or Foe to the Indians?, 42 Tulsa L Rev 125 (2006).
    • (2006) Tulsa L Rev , vol.42
    • Tallchief Skibine, A.1
  • 138
    • 23844554284 scopus 로고    scopus 로고
    • Appropriation as Agrarianism: Distributive Justice in the Creation of Property Rights, 32
    • contending that the Colorado rule was intentionally designed to prevent control of water by capitalists and embodies an antimonopolistic, agrarian ideal, For further discussion, see
    • For further discussion, see David B. Schorr, Appropriation as Agrarianism: Distributive Justice in the Creation of Property Rights, 32 Ecology L Q 3 (2005) (contending that the Colorado rule was intentionally designed to prevent control of water by capitalists and embodies an antimonopolistic, agrarian ideal).
    • (2005) Ecology L Q , vol.3
    • Schorr, D.B.1
  • 139
    • 84900374544 scopus 로고    scopus 로고
    • See, for example, Stratton v Mt. Hermon Boys' School, 103 NE 87, 88 (Mass 1913) (denying an absolute right of property in water and stating that [t]he use of the water flowing in a stream is common to all riparian owners and each must exercise this common right so as not essentially to interfere with an equally beneficial enjoyment of the common right by his fellow riparian owners).
    • See, for example, Stratton v Mt. Hermon Boys' School, 103 NE 87, 88 (Mass 1913) (denying an absolute right of property in water and stating that "[t]he use of the water flowing in a stream is common to all riparian owners and each must exercise this common right so as not essentially to interfere with an equally beneficial enjoyment of the common right by his fellow riparian owners").
  • 140
    • 84900354825 scopus 로고    scopus 로고
    • See W. Page Keeton, et al, Prosser and Keeton on Torts § 87 at 622-23 (West 5th ed 1984) (discussing the requirements for recovery on a private nuisance theory).
    • See W. Page Keeton, et al, Prosser and Keeton on Torts § 87 at 622-23 (West 5th ed 1984) (discussing the requirements for recovery on a private nuisance theory).
  • 141
    • 84900350232 scopus 로고    scopus 로고
    • See, for example, Richard R. Powell, 6 The Law on Real Property § 64.02[l]-[3] at 64-10 to 64-13 (Matthew Bender 2007) (Michael Allan Wolf, ed) (explaining nuisance law as setting restrictions on owners' power to use land in certain ways).
    • See, for example, Richard R. Powell, 6 The Law on Real Property § 64.02[l]-[3] at 64-10 to 64-13 (Matthew Bender 2007) (Michael Allan Wolf, ed) (explaining nuisance law as setting restrictions on owners' power to use land in certain ways).
  • 142
    • 3042734240 scopus 로고    scopus 로고
    • See Henry E. Smith, Exclusion and Property Rules in the Law of Nuisance, 90 Va L Rev 965, 974-75 (2004) (asserting that information costs can explain how regimes of exclusion and governance define entitlements in nuisance law).
    • See Henry E. Smith, Exclusion and Property Rules in the Law of Nuisance, 90 Va L Rev 965, 974-75 (2004) (asserting that information costs can explain how regimes of exclusion and governance define entitlements in nuisance law).
  • 143
    • 84900359749 scopus 로고    scopus 로고
    • See Epstein, 36 J L & Econ at 557, 573 (cited in note 8).
    • See Epstein, 36 J L & Econ at 557, 573 (cited in note 8).
  • 144
    • 84900376034 scopus 로고    scopus 로고
    • Id at 575 explaining that the law should not grant injunctive relief for every minor interference because of the massive holdout potential
    • Id at 575 (explaining that the law should not grant injunctive relief for every minor interference because of the massive holdout potential).
  • 145
    • 77954071041 scopus 로고
    • See, for example, 257 NE2d 870, 873 NY, granting an injunction to be vacated upon payment of permanent damages by the cement factory to neighboring landowners
    • See, for example, Boomer v Atlantic Cement Co, Inc, 257 NE2d 870, 873 (NY 1970) (granting an injunction to be vacated upon payment of permanent damages by the cement factory to neighboring landowners).
    • (1970) Boomer v Atlantic Cement Co, Inc
  • 147
    • 84900376540 scopus 로고    scopus 로고
    • This goal lies at the very core of zoning. See Village of Euclid v Ambler Realty Co, 272 US 365, 390 1926, noting that the crux of recent zoning legislation was the creation and maintenance of residential districts, from which business and trade of every sort, including hotels and apartment houses, are excluded
    • This goal lies at the very core of zoning. See Village of Euclid v Ambler Realty Co, 272 US 365, 390 (1926) (noting that the crux of recent zoning legislation was "the creation and maintenance of residential districts, from which business and trade of every sort, including hotels and apartment houses, are excluded").
  • 149
    • 84900378984 scopus 로고    scopus 로고
    • See US Const, Amend V
    • See US Const, Amend V.
  • 150
    • 28044434403 scopus 로고    scopus 로고
    • Richard A. Posner, Foreword: A Political Court, 119 Harv L Rev 32, 93 (2005) (referring to eminent domain as an almost random form of taxation that enriches the government at the expense of the private landowner and is only justified in a very narrow set of circumstances).
    • Richard A. Posner, Foreword: A Political Court, 119 Harv L Rev 32, 93 (2005) (referring to eminent domain as an "almost random form of taxation" that enriches the government at the expense of the private landowner and is only justified in a very narrow set of circumstances).
  • 151
    • 84900356420 scopus 로고    scopus 로고
    • See Part IV.D
    • See Part IV.D.
  • 152
    • 0042170038 scopus 로고    scopus 로고
    • Compare generally Saul Levmore, Two Stories about the Evolution of Property Rights, 31 J Legal Stud 421 (2002) (advancing a theory that transaction costs and interest groups drove the movement of property from the commons to privatization and, in several instances, back again to a more open-access arrangement).
    • Compare generally Saul Levmore, Two Stories about the Evolution of Property Rights, 31 J Legal Stud 421 (2002) (advancing a theory that transaction costs and interest groups drove the movement of property from the commons to privatization and, in several instances, back again to a more open-access arrangement).
  • 153
    • 84979188687 scopus 로고
    • The Nature of the Firm, 4
    • theorizing that firms arise in order to economize on transaction costs because the higher the cost of transacting externally on the market, the greater the comparative advantage of producing a firm's needs internally, Ronald Coase paved the way for the make or pay analysis-whether corporations should produce components or services internally, or purchase on the market. See generally
    • Ronald Coase paved the way for the "make or pay" analysis-whether corporations should produce components or services internally, or purchase on the market. See generally R.H. Coase, The Nature of the Firm, 4 Economica 386 (1937) (theorizing that firms arise in order to economize on transaction costs because the higher the cost of transacting externally on the market, the greater the comparative advantage of producing a firm's needs internally).
    • (1937) Economica , vol.386
    • Coase, R.H.1
  • 154
    • 84900378127 scopus 로고    scopus 로고
    • Since Coase's pathbreaking article, an extensive literature has developed. See generally, for example, Armen A. Alchian and Harold Demsetz, Production, Information Costs, and Economic Organizations, 62 Am Econ Rev 777 (1972) (exploring the team productive process and why it induces the contractual formation of the firm);
    • Since Coase's pathbreaking article, an extensive literature has developed. See generally, for example, Armen A. Alchian and Harold Demsetz, Production, Information Costs, and Economic Organizations, 62 Am Econ Rev 777 (1972) (exploring the team productive process and why it induces the contractual formation of the firm);
  • 155
    • 0000827401 scopus 로고
    • Vertical Integration, Appropriable Rents, and the Competitive Contracting Process, 21
    • describing how the potential postcontractual extraction of high rents induces parties to integrate vertically rather than contract
    • Benjamin Klein, Robert G. Crawford, and Armen A. Alchian, Vertical Integration, Appropriable Rents, and the Competitive Contracting Process, 21 J L & Econ 297 (1978) (describing how the potential postcontractual extraction of high rents induces parties to integrate vertically rather than contract);
    • (1978) J L & Econ , vol.297
    • Klein, B.1    Crawford, R.G.2    Alchian, A.A.3
  • 156
    • 0001470630 scopus 로고
    • Transaction-cost Economics: The Governance of Contractual Relations, 22
    • using the three dimensions of frequency, investment idiosyncrasy, and uncertainty to characterize transaction costs and match them with appropriate governance structures
    • Oliver E. Williamson, Transaction-cost Economics: The Governance of Contractual Relations, 22 J L & Econ 233 (1979) (using the three dimensions of frequency, investment idiosyncrasy, and uncertainty to characterize transaction costs and match them with appropriate governance structures);
    • (1979) J L & Econ , vol.233
    • Williamson, O.E.1
  • 157
    • 84900368255 scopus 로고    scopus 로고
    • Oliver E. Williamson, The Economic Institutions of Capitalism: Firms, Markets, Relational Contracting (Free Press 1985) (describing the analytical framework of transaction cost economics and applying it to different contractual settings);
    • Oliver E. Williamson, The Economic Institutions of Capitalism: Firms, Markets, Relational Contracting (Free Press 1985) (describing the analytical framework of transaction cost economics and applying it to different contractual settings);
  • 158
    • 84900356963 scopus 로고    scopus 로고
    • Oliver Hart, An Economist's Perspective on the Theory of the Firm, 89 Colum L Rev 1757 (1989) (finding the transaction cost economics model of the firm unconvincing and advancing a property-rights approach in which firms are characterized by their nonhuman assets);
    • Oliver Hart, An Economist's Perspective on the Theory of the Firm, 89 Colum L Rev 1757 (1989) (finding the transaction cost economics model of the firm unconvincing and advancing a property-rights approach in which firms are characterized by their nonhuman assets);
  • 159
    • 0009828672 scopus 로고    scopus 로고
    • The Boundaries of the Firm Revisited, 12
    • arguing for a broader view of the firm than has been provided by either transaction cost economics or property rights theory
    • Bengt Holmström and John Roberts, The Boundaries of the Firm Revisited, 12 J Econ Perspectives 73 (1998) (arguing for a broader view of the firm than has been provided by either transaction cost economics or property rights theory).
    • (1998) J Econ Perspectives , vol.73
    • Holmström, B.1    Roberts, J.2
  • 160
    • 84900351304 scopus 로고    scopus 로고
    • See, for example, the discussion of tenancies by the entirety in Sawada v Endo, 561 P2d 1291, 1295 (Hawaii 1977) (holding that the tenancy by the entirety is predicated upon the legal unity of husband and wife in single ownership and cannot be conveyed or reached by execution through either spouse alone).
    • See, for example, the discussion of tenancies by the entirety in Sawada v Endo, 561 P2d 1291, 1295 (Hawaii 1977) (holding that the tenancy by the entirety is predicated upon the legal unity of husband and wife in single ownership and cannot be conveyed or reached by execution through either spouse alone).
  • 161
    • 84900357386 scopus 로고    scopus 로고
    • See Robert W Hillman, Allan W. Vestal, and Donald J. Weidner, The Revised Uniform Partnership Act § 201(a) at 79 (West 2006) (A partnership is an entity distinct from its partners.).
    • See Robert W Hillman, Allan W. Vestal, and Donald J. Weidner, The Revised Uniform Partnership Act § 201(a) at 79 (West 2006) ("A partnership is an entity distinct from its partners.").
  • 162
    • 0032385486 scopus 로고    scopus 로고
    • The Functions of Trust Law: A Comparative Legal and Economic Analysis
    • See, 434
    • See Henry Hansmann and Ugo Mattei, The Functions of Trust Law: A Comparative Legal and Economic Analysis, 73 NYU L Rev 434, 472 (1998).
    • (1998) NYU L Rev , vol.73 , pp. 472
    • Hansmann, H.1    Mattei, U.2
  • 163
    • 84900351101 scopus 로고    scopus 로고
    • See generally, for example, Joint Properties Owners, lne v Deri, 113 AD2d 691 (NY App Div 1986) (noting that the leasehold interest does not terminate upon the lessee's death but passes as personal property to the decedent's estate).
    • See generally, for example, Joint Properties Owners, lne v Deri, 113 AD2d 691 (NY App Div 1986) (noting that the leasehold interest does not terminate upon the lessee's death but passes as personal property to the decedent's estate).
  • 164
    • 0036330055 scopus 로고    scopus 로고
    • For further discussion, see generally Nina A. Mendelson, A Control-based Approach to Shareholder Liability for Corporate Torts, 102 Colum L Rev 1203 (2002) (proposing to hold controlling shareholders liable for corporate torts and statutory violations based on their level of involvement).
    • For further discussion, see generally Nina A. Mendelson, A Control-based Approach to Shareholder Liability for Corporate Torts, 102 Colum L Rev 1203 (2002) (proposing to hold controlling shareholders liable for corporate torts and statutory violations based on their level of involvement).
  • 165
    • 84900380466 scopus 로고    scopus 로고
    • 4 Economica 386 (cited in note 120); Williamson
    • See generally
    • See generally Coase, 4 Economica 386 (cited in note 120); Williamson, 22 J L & Econ 233 (cited in note 120);
    • J L & Econ 233 (cited in note 120) , vol.22
    • Coase1
  • 166
    • 84900351172 scopus 로고    scopus 로고
    • Eugene F. Fama and Michael C. Jensen, Separation of Ownership and Control, 26 J L & Econ 301 (1983) (arguing that the separation of decisionmaking and risk-bearing functions survives in large corporations because it can control agency problems and effectively use specific knowledge in decisionmaking).
    • Eugene F. Fama and Michael C. Jensen, Separation of Ownership and Control, 26 J L & Econ 301 (1983) (arguing that the separation of decisionmaking and risk-bearing functions survives in large corporations because it can control agency problems and effectively use specific knowledge in decisionmaking).
  • 167
    • 0347245305 scopus 로고    scopus 로고
    • See Zohar Goshen, Controlling Strategic Voting: Property Rule or Liability Rule?, 70 S Cal L Rev 741, 743 (1997) (Although an investor's decision to join an investors' group is made on an individual basis... from that moment onward... most decisions must be made collectively).
    • See Zohar Goshen, Controlling Strategic Voting: Property Rule or Liability Rule?, 70 S Cal L Rev 741, 743 (1997) ("Although an investor's decision to join an investors' group is made on an individual basis... from that moment onward... most decisions must be made collectively").
  • 168
    • 0034085431 scopus 로고    scopus 로고
    • Organizational Law as Asset Partitioning, 44
    • discussing the importance of organizational law in permitting a better match of asset packages for different tastes and desires for risk, See
    • See Henry Hansmann and Reinier Kraakman, Organizational Law as Asset Partitioning, 44 Eur Econ Rev 807-17 (2000) (discussing the importance of organizational law in permitting a better match of asset packages for different tastes and desires for risk).
    • (2000) Eur Econ Rev , vol.807 -17
    • Hansmann, H.1    Kraakman, R.2
  • 169
    • 0042170044 scopus 로고    scopus 로고
    • For a fascinating exploration of situations in which an owner will find it cost effective to destroy asset value to maximize owner utility, see generally Allen, 31 J Legal Stud 339 cited in note 53
    • For a fascinating exploration of situations in which an owner will find it cost effective to destroy asset value to maximize owner utility, see generally Allen, 31 J Legal Stud 339 (cited in note 53).
  • 170
    • 84900353318 scopus 로고    scopus 로고
    • See, for example, Douglas Litowitz, Reification in Law and Legal Theory, 9 S Cal Interdiscipl L J 401, 401 (2000) (As applied to law, reification represents a kind of infection... because it is essentially an error, a delusion, and a mystification that blinds people to alternative legal arrangements by 'naturalizing' the existing legal system as inevitable.).
    • See, for example, Douglas Litowitz, Reification in Law and Legal Theory, 9 S Cal Interdiscipl L J 401, 401 (2000) ("As applied to law, reification represents a kind of infection... because it is essentially an error, a delusion, and a mystification that blinds people to alternative legal arrangements by 'naturalizing' the existing legal system as inevitable.").
  • 171
    • 84900373929 scopus 로고    scopus 로고
    • See Dan L. Burk, Transborder Intellectual Property Issues on the Electronic Frontier, 6 Stan L & Policy Rev 9, 9-10 (1994) (explaining that [u]nlike physical goods, intellectual goods lack the barriers that would allow their investors to prevent their free appropriation by consumers).
    • See Dan L. Burk, Transborder Intellectual Property Issues on the Electronic Frontier, 6 Stan L & Policy Rev 9, 9-10 (1994) (explaining that "[u]nlike physical goods, intellectual goods lack the barriers that would allow their investors to prevent their free appropriation by consumers").
  • 172
    • 32244435314 scopus 로고    scopus 로고
    • A Marketplace for Ideas?, 84
    • discussing the difficulties involved in defining the boundaries of ideas and inventions, See, for example
    • See, for example, Oren Bar-Gill and Gideon Parchomovsky, A Marketplace for Ideas?, 84 Tex L Rev 395, 429-30 (2005) (discussing the difficulties involved in defining the boundaries of ideas and inventions).
    • (2005) Tex L Rev , vol.395 , pp. 429-430
    • Bar-Gill, O.1    Parchomovsky, G.2
  • 174
    • 84900349363 scopus 로고    scopus 로고
    • See, for example, Jonathan M. Barnett, Cultivating the Genetic Commons: Imperfect Patent Protection and the Network Model of Innovation, 37 San Diego L Rev 987, 991 2000
    • See, for example, Jonathan M. Barnett, Cultivating the Genetic Commons: Imperfect Patent Protection and the Network Model of Innovation, 37 San Diego L Rev 987, 991 (2000).
  • 175
    • 84900365600 scopus 로고    scopus 로고
    • Jesse Dukeminier, et al, Property 175-82 (Aspen 6th ed 2006) (discussing the evolution of the estates system, which arose out of feudalism and defined estates according to their length of endurance).
    • Jesse Dukeminier, et al, Property 175-82 (Aspen 6th ed 2006) (discussing the evolution of the estates system, which arose out of feudalism and defined estates according to their length of endurance).
  • 176
    • 84900376106 scopus 로고    scopus 로고
    • Id at 182 (The development of the fee simple estate is an example of that most striking phenomenon of English land law, the reification of abstractions, a process of thinking that still pervades our law.). While the estate system originally applied only to land, it was subsequently extended to other tangible and intangible assets.
    • Id at 182 ("The development of the fee simple estate is an example of that most striking phenomenon of English land law, the reification of abstractions, a process of thinking that still pervades our law."). While the estate system originally applied only to land, it was subsequently extended to other tangible and intangible assets.
  • 177
    • 84900354457 scopus 로고    scopus 로고
    • Id at 181-82, 186-90, 225-28
    • Id at 181-82, 186-90, 225-28.
  • 178
    • 84900368382 scopus 로고    scopus 로고
    • 496 NE2d 869 (NY 1986).
    • 496 NE2d 869 (NY 1986).
  • 179
    • 84900369487 scopus 로고    scopus 로고
    • See id at 871
    • See id at 871.
  • 180
    • 84900357106 scopus 로고    scopus 로고
    • The father's desire to avoid testamentary disposition was apparently influenced by his desire to lower estate tax exposure. See id.
    • The father's desire to avoid testamentary disposition was apparently influenced by his desire to lower estate tax exposure. See id.
  • 181
    • 84900351888 scopus 로고    scopus 로고
    • A trust would have created a fiduciary duty in the father toward his son regarding the painting; this would be somewhat more exacting than the duty not to commit waste that was created by the actual transfer of the future interest
    • A trust would have created a fiduciary duty in the father toward his son regarding the painting; this would be somewhat more exacting than the duty not to commit waste that was created by the actual transfer of the future interest.
  • 182
    • 84900354208 scopus 로고    scopus 로고
    • The fee tail was originally codified in the Statute de Donis Conditionalibus, 13 Edw I, stat I (1285).
    • The fee tail was originally codified in the Statute de Donis Conditionalibus, 13 Edw I, stat I (1285).
  • 183
    • 34248514143 scopus 로고    scopus 로고
    • A Less Proportion of Idle Proprietors: Madison, Property Rights, and the Abolition of Fee Tail
    • In England, the successive life estates interpretation of the estate competed with several other conceptions, such as viewing only the first generation or the first three generations as equivalent to life estates See, 167
    • In England, the successive life estates interpretation of the estate competed with several other conceptions, such as viewing only the first generation or the first three generations as equivalent to life estates See John F. Hart, "A Less Proportion of Idle Proprietors": Madison, Property Rights, and the Abolition of Fee Tail, 58 Wash & Lee L Rev 167, 172 (2001).
    • (2001) Wash & Lee L Rev , vol.58 , pp. 172
    • Hart, J.F.1
  • 184
    • 50949129526 scopus 로고    scopus 로고
    • cited in note 135, noting that the fee tail, though passing from generation to generation, did not expire until the original tenant in fee tail and all of that tenant's descendants were dead, The fee tail could also be useful as a tax-saving device by avoiding estate taxes. See, at
    • The fee tail could also be useful as a tax-saving device by avoiding estate taxes. See Dukeminier, et al, Property at 187 (cited in note 135) (noting that the fee tail, though passing from generation to generation, did not expire until the original tenant in fee tail and all of that tenant's descendants were dead).
    • Property , pp. 187
    • Dukeminier1
  • 185
    • 0141574389 scopus 로고    scopus 로고
    • See id at 187-88 (describing common recovery as an expensive legal procedure used to restore alienability of the land). See also Jesse Dukeminier and James E. Krier, The Rise of the Perpetual Trust, 50 UCLA L Rev 1303, 1320 (2003) (Later, the common recovery was abolished, and a tenant in tail was permitted to convey a fee simple by a deed.).
    • See id at 187-88 (describing common recovery as an expensive legal procedure used to restore alienability of the land). See also Jesse Dukeminier and James E. Krier, The Rise of the Perpetual Trust, 50 UCLA L Rev 1303, 1320 (2003) ("Later, the common recovery was abolished, and a tenant in tail was permitted to convey a fee simple by a deed.").
  • 186
    • 50949129526 scopus 로고    scopus 로고
    • cited in note 135, See, at
    • See Dukeminier, et al, Property at 188 (cited in note 135).
    • Property , pp. 188
    • Dukeminier1
  • 187
    • 84900365647 scopus 로고    scopus 로고
    • For a discussion of the role of eminent domain in countering strategic behavior, see
    • For a discussion of the role of eminent domain in countering strategic behavior, see Posner, 119 Harv L Rev at 93-94 (cited in note 117).
    • 119 Harv L Rev at 93-94 (cited in note 117)
    • Posner1
  • 188
    • 84900347308 scopus 로고    scopus 로고
    • 467 US 229 (1984) (upholding the constitutionality of the Land Reform Act of 1967, Haw Rev Stat § 516, which authorized the Hawaii Housing Authority to use eminent domain as a tool to achieve market dilution).
    • 467 US 229 (1984) (upholding the constitutionality of the Land Reform Act of 1967, Haw Rev Stat § 516, which authorized the Hawaii Housing Authority to use eminent domain as a tool to achieve market dilution).
  • 189
    • 84900378326 scopus 로고    scopus 로고
    • See id at 233 ([T]he Hawaii Legislature enacted the Land Reform Act of 1967... which created a mechanism for condemning residential tracts and for transferring ownership of the condemned fees simple to existing lessees.).
    • See id at 233 ("[T]he Hawaii Legislature enacted the Land Reform Act of 1967... which created a mechanism for condemning residential tracts and for transferring ownership of the condemned fees simple to existing lessees.").
  • 191
    • 84900356061 scopus 로고    scopus 로고
    • see generally John Nivala, The Future for Our Past: Preserving Landmark Preservation, 5 NYU Envir L J 83, 113 (1996) (noting that the only compensation the landowner receives for bearing the cost of preserving tomorrow's heritage is the advantage of living and doing business in a civilized community).
    • see generally John Nivala, The Future for Our Past: Preserving Landmark Preservation, 5 NYU Envir L J 83, 113 (1996) (noting that the only compensation the landowner receives for bearing the cost of preserving tomorrow's heritage is "the advantage of living and doing business in a civilized community").
  • 192
    • 84900346644 scopus 로고    scopus 로고
    • See, for example, William A. Fischel, Lead Us Not into Penn Station: Takings, Historic Preservation, and Rent Control, 6 Fordham Envir L J 749, 753 (1995) (stating that even an isolated landmark is a building that provides something that almost all of us would characterize as a public benefit).
    • See, for example, William A. Fischel, Lead Us Not into Penn Station: Takings, Historic Preservation, and Rent Control, 6 Fordham Envir L J 749, 753 (1995) (stating that even an isolated landmark is "a building that provides something that almost all of us would characterize as a public benefit").
  • 193
    • 0042102754 scopus 로고
    • Preservation and Community: New Directions in the Law of Historic Preservation, 33
    • outlining the evolving rationale for modern preservation laws and showing how preservation law has also become a vehicle for community organization and politics, For a discussion of preservation laws, see generally
    • For a discussion of preservation laws, see generally Carol M. Rose, Preservation and Community: New Directions in the Law of Historic Preservation, 33 Stan L Rev 473 (1981) (outlining the evolving rationale for modern preservation laws and showing how preservation law has also become a vehicle for community organization and politics).
    • (1981) Stan L Rev , vol.473
    • Rose, C.M.1
  • 194
    • 84900379386 scopus 로고    scopus 로고
    • See Kenneth H. Young, 2 Anderson's American Law of Zoning § 11:01 at 437 (Clark Boardman Callaghan 4th ed 19%) (The common zoning regulation requires that the dwellings in a specific district be constructed on a lot of a minimum size, with minimum frontage and setback.).
    • See Kenneth H. Young, 2 Anderson's American Law of Zoning § 11:01 at 437 (Clark Boardman Callaghan 4th ed 19%) ("The common zoning regulation requires that the dwellings in a specific district be constructed on a lot of a minimum size, with minimum frontage and setback.").
  • 196
    • 0347245057 scopus 로고    scopus 로고
    • Authors' and Artists' Moral Rights: A Comparative Legal and Economic Analysis, 26
    • arguing that the moral rights doctrine serves to provide economic benefits not just to the individual artist but also to owners of the artist's work and the public at large, See generally
    • See generally Henry Hansmann and Marina Santilli, Authors' and Artists' Moral Rights: A Comparative Legal and Economic Analysis, 26 J Legal Stud 95 (1997) (arguing that the moral rights doctrine serves to provide economic benefits not just to the individual artist but also to owners of the artist's work and the public at large).
    • (1997) J Legal Stud , vol.95
    • Hansmann, H.1    Santilli, M.2
  • 197
    • 84900374512 scopus 로고    scopus 로고
    • The classic formulation of the rule is John Chipman Gray's: No interest is good unless it must vest, if at all, not later than twenty-one years after some life in being at the creation of the interest. John C. Gray, The Rule against Perpetuities § 201 at 191 (Little, Brown 4th ed 1942).
    • The classic formulation of the rule is John Chipman Gray's: "No interest is good unless it must vest, if at all, not later than twenty-one years after some life in being at the creation of the interest." John C. Gray, The Rule against Perpetuities § 201 at 191 (Little, Brown 4th ed 1942).
  • 198
    • 84900377144 scopus 로고    scopus 로고
    • The Rule in Shelley's Case states that if (1) one instrument (2) creates a life estate in land in A, and (3) purports to create a remainder in persons described as A's heirs (or the heirs of A's body), and (4) the life estate and remainder are both legal or both equitable, the remainder becomes a remainder in fee simple (or fee tail) in A. Dukeminier, et al, Property at 243 (cited in note 135).
    • The Rule in Shelley's Case states "that if (1) one instrument (2) creates a life estate in land in A, and (3) purports to create a remainder in persons described as A's heirs (or the heirs of A's body), and (4) the life estate and remainder are both legal or both equitable, the remainder becomes a remainder in fee simple (or fee tail) in A." Dukeminier, et al, Property at 243 (cited in note 135).
  • 199
    • 84900378528 scopus 로고    scopus 로고
    • Other rules include the rule of the destructibility of contingent remainders and the doctrine of worthier title. See id at 241-44
    • Other rules include the rule of the destructibility of contingent remainders and the doctrine of worthier title. See id at 241-44.
  • 200
    • 84900354038 scopus 로고    scopus 로고
    • See notes 142-46 and accompanying text
    • See notes 142-46 and accompanying text.
  • 201
    • 84900361927 scopus 로고    scopus 로고
    • See Merrill and Smith, 110 Yale L J at 8 (cited in note 71) (The existence of unusual property rights increases the cost of processing information about all property rights.... Standardization of property rights reduces these measurement costs.).
    • See Merrill and Smith, 110 Yale L J at 8 (cited in note 71) ("The existence of unusual property rights increases the cost of processing information about all property rights.... Standardization of property rights reduces these measurement costs.").
  • 202
    • 84900355021 scopus 로고    scopus 로고
    • See id at 40 (describing how numerus clausus, though strongly restrictive, is also permissive and therefore tends toward the optimal level of standardization).
    • See id at 40 (describing how numerus clausus, though strongly restrictive, is also permissive and therefore tends toward the optimal level of standardization).
  • 203
    • 21344482538 scopus 로고
    • Pricing Solutions to the Bilateral Monopoly Problem under Uncertainty, 60
    • deriving a nonuniform price solution to the bilateral monopoly problem in response to the suboptimal performance of uniform pricing, See generally
    • See generally Ian M. Dobbs and Martyn B. Hill, Pricing Solutions to the Bilateral Monopoly Problem under Uncertainty, 60 S Econ J 479 (1993) (deriving a nonuniform price solution to the bilateral monopoly problem in response to the suboptimal performance of uniform pricing).
    • (1993) S Econ J , vol.479
    • Dobbs, I.M.1    Hill, M.B.2
  • 204
    • 84900371681 scopus 로고    scopus 로고
    • See generally Todd D. Mayo, A Holistic Examination of the Law of Conservation Easements, in Julie A. Gustanski and Roderick H. Squires, eds, Protecting the Land: Conservation Easements Past, Present, and Future 26 (Island 2000) (presenting a comparative analysis of the basic elements of conservation easements among different states).
    • See generally Todd D. Mayo, A Holistic Examination of the Law of Conservation Easements, in Julie A. Gustanski and Roderick H. Squires, eds, Protecting the Land: Conservation Easements Past, Present, and Future 26 (Island 2000) (presenting a comparative analysis of the basic elements of conservation easements among different states).
  • 205
    • 84900372911 scopus 로고    scopus 로고
    • See id at 27 (noting that the definition of a conservation easement varies across states and is defined by states who have adopted the Uniform Conservation Easement Act as a non-possessory interest... in real property).
    • See id at 27 (noting that the definition of a conservation easement varies across states and is defined by states who have adopted the Uniform Conservation Easement Act as a "non-possessory interest... in real property").
  • 206
    • 84900350731 scopus 로고    scopus 로고
    • See Dukeminier, et al, Property at 667-71 (cited in note 135). 166 Id at 740-44.
    • See Dukeminier, et al, Property at 667-71 (cited in note 135). 166 Id at 740-44.
  • 207
    • 84900358850 scopus 로고    scopus 로고
    • See generally, for example, Sanborn v McLean, 206 NW 496 (Mich 1925) (enjoining the building of a gas station on land subject to a longstanding reciprocal negative easement prohibiting non-residential buildings).
    • See generally, for example, Sanborn v McLean, 206 NW 496 (Mich 1925) (enjoining the building of a gas station on land subject to a longstanding reciprocal negative easement prohibiting non-residential buildings).
  • 208
    • 84900372003 scopus 로고    scopus 로고
    • See generally, for example, Boomer v Atlantic Cement Co, Inc, 257 NE2d 870, 873 (NY 1970).
    • See generally, for example, Boomer v Atlantic Cement Co, Inc, 257 NE2d 870, 873 (NY 1970).
  • 209
    • 84900369652 scopus 로고    scopus 로고
    • Air Pollution Prevention and Control Act (Clean Air Act), Pub L No 91-604, 84 Stat 1676 (1970), codified as amended at 42 USC § 7401 et seq (2000).
    • Air Pollution Prevention and Control Act ("Clean Air Act"), Pub L No 91-604, 84 Stat 1676 (1970), codified as amended at 42 USC § 7401 et seq (2000).
  • 210
    • 84900365327 scopus 로고    scopus 로고
    • Federal Water Pollution Prevention and Control Act (Clean Water Act), Pub L No 92-500, 86 Stat 816 (1972), codified as amended at 33 USC § 1251 et seq (2000 & Supp 2004).
    • Federal Water Pollution Prevention and Control Act ("Clean Water Act"), Pub L No 92-500, 86 Stat 816 (1972), codified as amended at 33 USC § 1251 et seq (2000 & Supp 2004).
  • 211
    • 84900364119 scopus 로고    scopus 로고
    • Endangered Species Act of 1973, Pub L No 93-205, 87 Stat 884, codified as amended at 16 USC § 1531 et seq (2000).
    • Endangered Species Act of 1973, Pub L No 93-205, 87 Stat 884, codified as amended at 16 USC § 1531 et seq (2000).
  • 212
    • 33645811526 scopus 로고    scopus 로고
    • The American Transformation of Waste Doctrine: A Pluralist Interpretation, 91
    • See generally
    • See generally Jedediah Purdy, The American Transformation of Waste Doctrine: A Pluralist Interpretation, 91 Cornell L Rev 653, 658 (2006).
    • (2006) Cornell L Rev , vol.653 , pp. 658
    • Purdy, J.1
  • 214
    • 84900350263 scopus 로고    scopus 로고
    • 3 Cai R 175 (NY Sup Ct 1805).
    • 3 Cai R 175 (NY Sup Ct 1805).
  • 215
    • 84900379945 scopus 로고    scopus 로고
    • See id at 175
    • See id at 175.
  • 216
    • 84900364940 scopus 로고    scopus 로고
    • See the discussion in Dean Lueck, The Rule of First Possession and the Design of the Law, 38 J L & Econ 393, 422-30 (1995): First possession rules are the dominant method of initially establishing property rights Such rules grant a legitimate ownership claim to the party that gains control before other potential claimants. They have been applied widely in both common and statute law, in such varied settings as abandoned property, adverse possession, bona fide purchasing, the electromagnetic spectrum, emissions rights, fisheries and wildlife, groundwater, hardrock minerals, intellectual property, oil and gas, land, nonbankruptcy debt collection, satellite orbits, spoils of war, treasure trove, and water rights.
    • See the discussion in Dean Lueck, The Rule of First Possession and the Design of the Law, 38 J L & Econ 393, 422-30 (1995): First possession rules are the dominant method of initially establishing property rights Such rules grant a legitimate ownership claim to the party that gains control before other potential claimants. They have been applied widely in both common and statute law, in such varied settings as abandoned property, adverse possession, bona fide purchasing, the electromagnetic spectrum, emissions rights, fisheries and wildlife, groundwater, hardrock minerals, intellectual property, oil and gas, land, nonbankruptcy debt collection, satellite orbits, spoils of war, treasure trove, and water rights.
  • 217
    • 84900373359 scopus 로고    scopus 로고
    • One infamous application of this rule can be found in M'Intosh, 21 US at 595-96, 604-05, which ruled that Native Americans did not have true ownership of lands in the Americas and that the European nations could therefore establish ownership through discovery.
    • One infamous application of this rule can be found in M'Intosh, 21 US at 595-96, 604-05, which ruled that Native Americans did not have true ownership of lands in the Americas and that the European nations could therefore establish ownership through "discovery."
  • 218
    • 84900348977 scopus 로고    scopus 로고
    • See, for example, Eads v Brazelton, 22 Ark 499, 499 (1861) (ruling that ownership over an abandoned shipwreck could be established by occupation-that is, actual salvage operations and not mere discovery of the wreck's location-and that failure to reduce the wreck to possession defeated a claim of ownership).
    • See, for example, Eads v Brazelton, 22 Ark 499, 499 (1861) (ruling that ownership over an abandoned shipwreck could be established by "occupation"-that is, actual salvage operations and not mere discovery of the wreck's location-and that failure to reduce the wreck to possession defeated a claim of ownership).
  • 219
    • 84900353105 scopus 로고    scopus 로고
    • See T.E. Lauer, The Common Law Background of the Riparian Doctrine, 28 Mo L Rev 60, 101-02 (1963) (discussing the English case of Wright v Howard, 57 Eng Rep 76 (Ch 1823), which introduced the natural flow theory, affirming the principle that each proprietor has equal rights to water usage and therefore no proprietor can use her right to the prejudice of any other).
    • See T.E. Lauer, The Common Law Background of the Riparian Doctrine, 28 Mo L Rev 60, 101-02 (1963) (discussing the English case of Wright v Howard, 57 Eng Rep 76 (Ch 1823), which introduced the "natural flow" theory, affirming the principle that each proprietor has equal rights to water usage and therefore no proprietor can use her right to the prejudice of any other).
  • 220
    • 84900383675 scopus 로고    scopus 로고
    • See Evans v Merriweather, 4 Ill 492, 494 (1842) (There may be, and there must be, of that which is common to all, a reasonable use. The true test of the principle and extent of the use is, whether it is to the injury of the other proprietors or not.).
    • See Evans v Merriweather, 4 Ill 492, 494 (1842) ("There may be, and there must be, of that which is common to all, a reasonable use. The true test of the principle and extent of the use is, whether it is to the injury of the other proprietors or not.").
  • 221
    • 84900376891 scopus 로고    scopus 로고
    • See, for example, Coffin v Left Hand Ditch Co, 6 Colo 443, 446 (1882).
    • See, for example, Coffin v Left Hand Ditch Co, 6 Colo 443, 446 (1882).
  • 222
    • 84900367993 scopus 로고    scopus 로고
    • A nonbeneficial use, for example, grants no appropriative rights; it is the style of appropriation rather than the actual capture that grants the rights. Thus, someone might draw from unclaimed waters but be forbidden to exercise property rights over them because they fall within the scope of the privileged appropriation
    • A nonbeneficial use, for example, grants no appropriative rights; it is the style of appropriation rather than the actual capture that grants the rights. Thus, someone might draw from unclaimed waters but be forbidden to exercise property rights over them because they fall within the scope of the privileged appropriation.
  • 223
    • 85040890266 scopus 로고    scopus 로고
    • See generally Elinor Ostrom, Governing the Commons: The Evolution of Institutions for Collective Action (Cambridge 1990) (criticizing assumptions underlying proposed solutions to the tragedy of the commons and exploring an alternative solution in which users self-organize and govern themselves in the long-term management of the common resources).
    • See generally Elinor Ostrom, Governing the Commons: The Evolution of Institutions for Collective Action (Cambridge 1990) (criticizing assumptions underlying proposed solutions to the tragedy of the commons and exploring an alternative solution in which users self-organize and govern themselves in the long-term management of the common resources).
  • 224
    • 0346114032 scopus 로고
    • Conservation of Oil and Gas, 65
    • discussing regulatory efforts in the oil and gas industry to prevent waste and improve recovery through prorationing, well-spacing, or compulsory pooling and unitization, See generally
    • See generally Howard R. Williams, Conservation of Oil and Gas, 65 Harv L Rev 1155 (1952) (discussing regulatory efforts in the oil and gas industry to prevent waste and improve recovery through prorationing, well-spacing, or compulsory pooling and unitization).
    • (1952) Harv L Rev , vol.1155
    • Williams, H.R.1
  • 225
    • 84900367915 scopus 로고    scopus 로고
    • See Part ILA
    • See Part ILA.
  • 226
    • 84900348115 scopus 로고    scopus 로고
    • See General Allotment Act, ch 119, 24 Stat 388 (1887),
    • See General Allotment Act, ch 119, 24 Stat 388 (1887),
  • 227
    • 84900377592 scopus 로고    scopus 로고
    • codified in various sections of title 25, repealed by the Indian Land Consolidation Act Amendments of 2000 § 106(a), Pub L No 106-462, 114 Stat 2007, codified in various sections of title 25.
    • codified in various sections of title 25, repealed by the Indian Land Consolidation Act Amendments of 2000 § 106(a), Pub L No 106-462, 114 Stat 2007, codified in various sections of title 25.
  • 228
    • 84900362937 scopus 로고    scopus 로고
    • See also Act of March 2, 1889, ch 405, 25 Stat 888 (authorizing the division of the Great Reservation of the Sioux Nation into separate reservations and the allotment of specific tracts of reservation land to individual Indians, conditioned on the consent of three-fourths of the adult male Sioux).
    • See also Act of March 2, 1889, ch 405, 25 Stat 888 (authorizing the division of the Great Reservation of the Sioux Nation into separate reservations and the allotment of specific tracts of reservation land to individual Indians, conditioned on the consent of three-fourths of the adult male Sioux).
  • 229
    • 56849095375 scopus 로고
    • 481 US 704, 708 , quoting legislative history on the Indian Reorganization Act of
    • Hodel v Irving, 481 US 704, 708 (1987) (quoting legislative history on the Indian Reorganization Act of 1934).
    • (1934) Hodel v Irving
  • 230
    • 84900360578 scopus 로고    scopus 로고
    • 481 US 704 1987
    • 481 US 704 (1987).
  • 231
    • 84900366203 scopus 로고    scopus 로고
    • See id at 716-18
    • See id at 716-18.
  • 232
    • 84900350387 scopus 로고    scopus 로고
    • See also Babbitt v Youpee, 519 US 234, 244 (1997) (ruling that Congress's effort to rehabilitate the Act by allowing a narrow class of individuals to receive fractional interests did not cure the fatal flaw ruled unconstitutional in Irving).
    • See also Babbitt v Youpee, 519 US 234, 244 (1997) (ruling that Congress's effort to rehabilitate the Act by allowing a narrow class of individuals to receive fractional interests did not cure the fatal flaw ruled unconstitutional in Irving).
  • 234
    • 2442538827 scopus 로고    scopus 로고
    • Of Property and Anti-property, 102
    • Government actors often mismanage conservation properties, collaborating with private developers to dispose of government property at submarket prices and encouraging inefficient development on conservation property, See
    • See Abraham Bell and Gideon Parchomovsky, Of Property and Anti-property, 102 Mich L Rev 1, 2 (2003) ("Government actors often mismanage conservation properties, collaborating with private developers to dispose of government property at submarket prices and encouraging inefficient development on conservation property.").
    • (2003) Mich L Rev , vol.1 , pp. 2
    • Bell, A.1    Parchomovsky, G.2
  • 236
    • 84900353240 scopus 로고    scopus 로고
    • Bell and Parchomovsky, 102 Mich L Rev at 2 (cited in note 191).
    • Bell and Parchomovsky, 102 Mich L Rev at 2 (cited in note 191).
  • 237
    • 84900380130 scopus 로고    scopus 로고
    • To give one example, the federal Bureau of Land Management came under fire in a recent congressional report for its sale of seventy acres of Nevada land to a private developer for $763,000; the developer sold the land the next day for $4.6 million. See Joel Brinkley, A U.S. Agency Is Accused of Collusion in Land Deals, NY Times A16 (Oct 12, 2002).
    • To give one example, the federal Bureau of Land Management came under fire in a recent congressional report for its sale of seventy acres of Nevada land to a private developer for $763,000; the developer sold the land the next day for $4.6 million. See Joel Brinkley, A U.S. Agency Is Accused of Collusion in Land Deals, NY Times A16 (Oct 12, 2002).
  • 238
    • 84900368771 scopus 로고    scopus 로고
    • Bell and Parchomovsky, 102 Mich L Rev at 17 (cited in note 191).
    • Bell and Parchomovsky, 102 Mich L Rev at 17 (cited in note 191).
  • 239
    • 84900374559 scopus 로고    scopus 로고
    • For examples, see id at 30-31 listing four recent sales of undeveloped public lands in which conservation interests were systematically disadvantaged by the political decisionmaking process
    • For examples, see id at 30-31 (listing four recent sales of undeveloped public lands in which conservation interests were systematically disadvantaged by the political decisionmaking process).
  • 240
    • 84900350040 scopus 로고    scopus 로고
    • See id at 31-37 proposing an antiproperty easement that vests in each property owner the right to veto any development in nearby green space
    • See id at 31-37 (proposing an "antiproperty easement" that vests in each property owner the right to veto any development in nearby green space).
  • 241
    • 84900378228 scopus 로고    scopus 로고
    • Previously we have labeled those rights antiproperty rights. See id at 5.
    • Previously we have labeled those rights "antiproperty rights." See id at 5.
  • 243
    • 84900362446 scopus 로고    scopus 로고
    • Some states, most notably California, have extended the rights of the public from the tidelands to the dry sand areas landward of the high-tide mark. Id at 713-14.
    • Some states, most notably California, have extended the rights of the public "from the tidelands to the dry sand areas landward of the high-tide mark." Id at 713-14.
  • 244
    • 84900350269 scopus 로고    scopus 로고
    • See generally, for example, Matthews v Bay Head Improvement Association, 471 A2d 355 (NJ 1984) (finding that the public must be given both access to and use of the foreshore as well as privately owned dry sand areas as reasonably necessary).
    • See generally, for example, Matthews v Bay Head Improvement Association, 471 A2d 355 (NJ 1984) (finding that the public must be given both access to and use of the foreshore as well as privately owned dry sand areas "as reasonably necessary").
  • 245
    • 84900353434 scopus 로고    scopus 로고
    • See generally, for example, Gion v City of Santa Cruz, 465 P2d 50 (Cal 1970) (superseded by statute) (holding that an implied dedication of property rights to the public arose when the public has used the land for more than five years without permission or objection from previous owners);
    • See generally, for example, Gion v City of Santa Cruz, 465 P2d 50 (Cal 1970) (superseded by statute) (holding that an implied dedication of property rights to the public arose when the public has used the land for more than five years without permission or objection from previous owners);
  • 246
    • 84900379903 scopus 로고    scopus 로고
    • Seaway Co v Attorney General of Texas, 375 SW2d 923 (Tex Civ App 1964) (affirming the jury's finding of an implied dedication of land to public use and of an easement by prescription over land that had been continuously and adversely used for over ten years).
    • Seaway Co v Attorney General of Texas, 375 SW2d 923 (Tex Civ App 1964) (affirming the jury's finding of an implied dedication of land to public use and of an easement by prescription over land that had been continuously and adversely used for over ten years).
  • 247
    • 84900361222 scopus 로고    scopus 로고
    • See generally, for example, Thornton v Hay, 462 P2d 671 (Or 1969) (ruling that the public's use of the dry sand areas of the beach met all the elements of the custom doctrine: ancient, exercised without interruption, peaceable, reasonable, certain, obligatory, and not repugnant or inconsistent with any other law or custom);
    • See generally, for example, Thornton v Hay, 462 P2d 671 (Or 1969) (ruling that the public's use of the dry sand areas of the beach met all the elements of the custom doctrine: ancient, exercised without interruption, peaceable, reasonable, certain, obligatory, and not repugnant or inconsistent with any other law or custom);
  • 248
    • 84900369390 scopus 로고    scopus 로고
    • City of Daytona Beach v Tona-Rama, Inc, 294 S2d 73 (Fla 1974) (subscribing to the customary rights doctrine but declining to find an easement by prescription because the public's use of the property was in furtherance of, not against, the interests of the private landowner);
    • City of Daytona Beach v Tona-Rama, Inc, 294 S2d 73 (Fla 1974) (subscribing to the customary rights doctrine but declining to find an easement by prescription because the public's use of the property was in furtherance of, not against, the interests of the private landowner);
  • 249
    • 84900365088 scopus 로고    scopus 로고
    • County of Hawaii v Sotomura, 517 P2d 57 (Hawaii 1973) (recognizing that the public's long-standing use of the beach had ripened to a customary right).
    • County of Hawaii v Sotomura, 517 P2d 57 (Hawaii 1973) (recognizing that the public's long-standing use of the beach had ripened to a customary right).
  • 250
    • 84900349323 scopus 로고    scopus 로고
    • See, for example, at
    • See, for example, Posner, 119 Harv L Rev at 94
    • 119 Harv L Rev , pp. 94
    • Posner1
  • 251
    • 84900370229 scopus 로고    scopus 로고
    • (cited in note 117) (discussing the need to assemble a large tract of land for the city's redevelopment plan as a possible impetus for the exercise of eminent domain in Kelo v City of New London, 545 US 469 (2005)).
    • (cited in note 117) (discussing the need to assemble a large tract of land for the city's redevelopment plan as a possible impetus for the exercise of eminent domain in Kelo v City of New London, 545 US 469 (2005)).
  • 252
    • 56849106121 scopus 로고    scopus 로고
    • See, for example, 100 F3d 1525, 1532 Fed Cir
    • See, for example, Preseault v United States, 100 F3d 1525, 1532 (Fed Cir 1996).
    • (1996) Preseault v United States
  • 253
    • 84900376214 scopus 로고    scopus 로고
    • Consider Ink v City of Canton, 212 NE2d 574, 579 (Ohio 1965).
    • Consider Ink v City of Canton, 212 NE2d 574, 579 (Ohio 1965).
  • 254
    • 84900372909 scopus 로고    scopus 로고
    • Indeed, in Preseault, the government advanced the argument that the general federal legislation providing for the Government's control over interstate railroad operations as enacted and amended over the years had the effect of redefining the private property rights of these owners, leaving them without a compensable interest in the land. 100 F3d at 1533.
    • Indeed, in Preseault, the government advanced the argument that "the general federal legislation providing for the Government's control over interstate railroad operations as enacted and amended over the years had the effect of redefining the private property rights of these owners, leaving them without a compensable interest in the land." 100 F3d at 1533.
  • 255
    • 84900361356 scopus 로고    scopus 로고
    • See Hill v Western Vermont Railroad Co, 32 Vt 68, 76 (1859): In either mode of appropriating land for the purposes of the company,... there is this implied limitation upon the power [of eminent domain], that the company will take only so much land or estate therein as is necessary for their public purposes. It does not seem to us to make much difference in regard to either the quantity or the estate, whether the price is fixed by the commissioners or by the parties.
    • See Hill v Western Vermont Railroad Co, 32 Vt 68, 76 (1859): In either mode of appropriating land for the purposes of the company,... there is this implied limitation upon the power [of eminent domain], that the company will take only so much land or estate therein as is necessary for their public purposes. It does not seem to us to make much difference in regard to either the quantity or the estate, whether the price is fixed by the commissioners or by the parties.
  • 256
    • 84900373576 scopus 로고    scopus 로고
    • James R. Neal, Compulsory Pooling Promotes Conservation of Michigan's Oil and Gas Natural Resources, 78 Mich Bar J 158, 161 (1999) (defending Michigan's compulsory pooling procedure as promoting a reasonable balance between conservation and development interests).
    • James R. Neal, Compulsory Pooling Promotes Conservation of Michigan's Oil and Gas Natural Resources, 78 Mich Bar J 158, 161 (1999) (defending Michigan's compulsory pooling procedure as promoting a reasonable balance between conservation and development interests).
  • 257
    • 37349087249 scopus 로고    scopus 로고
    • Eminent Domain, Inc
    • See
    • See Amnon Lehavi and Amir N. Licht, Eminent Domain, Inc., 107 Colum L Rev 1704 1732 (2007).
    • (2007) Colum L Rev , vol.107 , pp. 1704-1732
    • Lehavi, A.1    Licht, A.N.2
  • 258
    • 84900379500 scopus 로고    scopus 로고
    • Pub L No 96-510, 94 Stat 2767 (1980), codified as amended at 42 USC § 9601 et seq (2000) (creating a tax on the chemical and petroleum industries and providing broad federal authority to respond to the release or threatened release of hazardous waste).
    • Pub L No 96-510, 94 Stat 2767 (1980), codified as amended at 42 USC § 9601 et seq (2000) (creating a tax on the chemical and petroleum industries and providing broad federal authority to respond to the release or threatened release of hazardous waste).
  • 259
    • 84900359891 scopus 로고    scopus 로고
    • Subject to a handful of exceptions, CERCLA defines a brownfield as real property, the expansion, redevelopment, or reuse of which may be complicated by the presence or potential presence of a hazardous substance, pollutant, or contaminant. 42 USC § 9601(39)(A).
    • Subject to a handful of exceptions, CERCLA defines a brownfield as "real property, the expansion, redevelopment, or reuse of which may be complicated by the presence or potential presence of a hazardous substance, pollutant, or contaminant." 42 USC § 9601(39)(A).
  • 260
    • 84900374428 scopus 로고    scopus 로고
    • For general information about Superfund, see EPA, CERCLA Overview (July 17, 2007), online at http://www.epa.gov/superfund/policy/cercla.htm (visited June 8, 2008).
    • For general information about Superfund, see EPA, CERCLA Overview (July 17, 2007), online at http://www.epa.gov/superfund/policy/cercla.htm (visited June 8, 2008).
  • 261
    • 84900349513 scopus 로고    scopus 로고
    • See for example, Fenton D. Strickland, Note, Brownfield Remediated? How the Bona Fide Prospective Purchaser Exemption from CERCLA Liability and the Windfall Lien Inhibit Brownfield Redevelopment, 38 Ind L Rev 789, 789 (2005) (noting that many brownfields lay deserted and undeveloped because developers fear the risk of liability for cleanup costs under CERCLA).
    • See for example, Fenton D. Strickland, Note, Brownfield Remediated? How the Bona Fide Prospective Purchaser Exemption from CERCLA Liability and the Windfall Lien Inhibit Brownfield Redevelopment, 38 Ind L Rev 789, 789 (2005) (noting that many brownfields lay deserted and undeveloped because developers fear the risk of liability for cleanup costs under CERCLA).
  • 262
    • 15844414897 scopus 로고    scopus 로고
    • The Role of Liability, Regulation, and Economic Incentives in Brownfield Remediation and Development: Evidence from Survey of Developers
    • See generally, 327
    • See generally Anna Alberini, et al, The Role of Liability, Regulation, and Economic Incentives in Brownfield Remediation and Development: Evidence from Survey of Developers, 35 Regional Sei and Urban Econ 327 (2005).
    • (2005) Regional Sei and Urban Econ , vol.35
    • Alberini, A.1
  • 263
    • 36349035065 scopus 로고    scopus 로고
    • See generally Howard F. Chang and Hilary Sigman, The Effect of Joint and Several Liability under Superfund on Brownfields, 27 Intl Rev L & Econ 363 (2007) (using a model of joint and several liability to show how liability risks from Superfund discourage the purchase of brownfields and emphasizing the effects arising from the potential buildup of defendants).
    • See generally Howard F. Chang and Hilary Sigman, The Effect of Joint and Several Liability under Superfund on Brownfields, 27 Intl Rev L & Econ 363 (2007) (using a model of joint and several liability to show how liability risks from Superfund discourage the purchase of brownfields and emphasizing the effects arising from the potential buildup of defendants).
  • 264
    • 84900354926 scopus 로고    scopus 로고
    • See generally id. See also Robert V. Percival, et al, Environmental Regulation: Law, Science, and Policy 269 (Aspen 4th ed 2003) (describing the EPA's announcement in 1995 to promote the use of comfort letters for owners worried about continued CERCLA liability and, similarly, prospective purchaser agreements to assure potential buyers worried about future CERCLA liability);
    • See generally id. See also Robert V. Percival, et al, Environmental Regulation: Law, Science, and Policy 269 (Aspen 4th ed 2003) (describing the EPA's announcement in 1995 to promote the use of "comfort letters" for owners worried about continued CERCLA liability and, similarly, "prospective purchaser agreements" to assure potential buyers worried about future CERCLA liability);
  • 266
    • 84900362896 scopus 로고    scopus 로고
    • See, for example, Maureen Ryan, Cyberspace as Public Space: A Public Trust Paradigm for Copyright in a Digital World, 79 Or L Rev 647, 647-648 (2000) (noting the expansion of copyright holders' rights at the expense of the public and seeking to arrest this trend by implementing principles of public trust to information).
    • See, for example, Maureen Ryan, Cyberspace as Public Space: A Public Trust Paradigm for Copyright in a Digital World, 79 Or L Rev 647, 647-648 (2000) (noting the expansion of copyright holders' rights at the expense of the public and seeking to arrest this trend by implementing principles of public trust to information).
  • 267
    • 36249002972 scopus 로고    scopus 로고
    • For proposals of this kind, see, for example, Gideon Parchomovsky and Kevin Goldman, Fair Use Harbors, 93 Va L Rev 1483, 1488 (2007) (proposing to expand fair use by formalizing fair use harbors that would supplement the current equitable analysis).
    • For proposals of this kind, see, for example, Gideon Parchomovsky and Kevin Goldman, Fair Use Harbors, 93 Va L Rev 1483, 1488 (2007) (proposing to expand fair use by formalizing fair use harbors that would supplement the current equitable analysis).
  • 268
    • 84900350192 scopus 로고    scopus 로고
    • Pub L No 94-553, 90 Stat 2541, codified as amended at 17 USC § 101 et seq (2000).
    • Pub L No 94-553, 90 Stat 2541, codified as amended at 17 USC § 101 et seq (2000).


* 이 정보는 Elsevier사의 SCOPUS DB에서 KISTI가 분석하여 추출한 것입니다.