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Volumn 122, Issue 5, 2009, Pages 1403-1465

Adjusting alienability

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EID: 64949131419     PISSN: 0017811X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review
Times cited : (57)

References (447)
  • 1
    • 0001609162 scopus 로고
    • Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85
    • Guido Calabresi & A. Douglas Melamed, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85 HARV. L. REV. 1089 (1972).
    • (1972) HARV. L. REV , vol.1089
    • Calabresi, G.1    Douglas Melamed, A.2
  • 2
    • 84935412230 scopus 로고
    • Inalienability and the Theory of Property Rights, 85
    • Inalienability is the stepchild of law and economics. See, e.g
    • See, e.g., Susan Rose-Ackerman, Inalienability and the Theory of Property Rights, 85 cOLUM. L. REV. 931, 931 (1985) ("Inalienability is the stepchild of law and economics."
    • (1985) cOLUM. L. REV , vol.931 , pp. 931
    • Rose-Ackerman, S.1
  • 3
    • 84868917555 scopus 로고    scopus 로고
    • Matteo Rizzolli, The Cathedral: An Economic Survey of Legal Remedies§§ 2.3.3-2.4 (Feb. 13, 2008) (unpublished manuscript), available at http://ssrn.com/abstractsi092144 (noting that inalienability rules play a limited role in the economic analysis of remedies). Some notable treatments of inalienability incorporating economic analysis include Rose-Ackerman, supra; Ian Ayres & Kristin Madison, Threatening Inefficient Performance of Injunctions and Contracts, 148 U. PA. L. REV. 45 (1999)
    • Matteo Rizzolli, The Cathedral: An Economic Survey of Legal Remedies§§ 2.3.3-2.4 (Feb. 13, 2008) (unpublished manuscript), available at http://ssrn.com/abstractsi092144 (noting that inalienability rules play a limited role in the economic analysis of remedies). Some notable treatments of inalienability incorporating economic analysis include Rose-Ackerman, supra; Ian Ayres & Kristin Madison, Threatening Inefficient Performance of Injunctions and Contracts, 148 U. PA. L. REV. 45 (1999)
  • 4
    • 84928223809 scopus 로고
    • Why Restrain Alienation?, 85
    • Richard A. Epstein, Why Restrain Alienation?, 85 COLUM. L. REV. 970 (1985
    • (1985) COLUM. L. REV , vol.970
    • Epstein, R.A.1
  • 5
    • 0000259630 scopus 로고    scopus 로고
    • The Boundaries of Private Property, 108
    • and Michael A. Heller, The Boundaries of Private Property, 108 YALE L.J. 1163, 1198-1202 (1999).
    • (1999) YALE L.J , vol.1163 , pp. 1198-1202
    • Heller, M.A.1
  • 6
    • 46149109280 scopus 로고    scopus 로고
    • For a recent discussion of, and contribution to, the large body of property scholarship focused on exclusion, see Shyamkrishna Balganesh, Demystifying the Right To Exclude: Of Property, Inviolability, and Automatic Injunctions, 31 HARV. J.L. & PUB. POL'Y 593 (2008).
    • For a recent discussion of, and contribution to, the large body of property scholarship focused on exclusion, see Shyamkrishna Balganesh, Demystifying the Right To Exclude: Of Property, Inviolability, and Automatic Injunctions, 31 HARV. J.L. & PUB. POL'Y 593 (2008).
  • 7
    • 64949092200 scopus 로고    scopus 로고
    • This shortfall in the literature is not met by the assertion that alienability has no independent significance for property theory, but rather only represents one facet of exclusion
    • This shortfall in the literature is not met by the assertion that alienability has no independent significance for property theory, but rather only represents one facet of exclusion.
  • 8
    • 64949086853 scopus 로고    scopus 로고
    • See Thomas W. Merrill, Property and the Right To Exclude, 77 NEB. L. REV. 730, 742-43 (1998) (arguing that exclusion encompasses all attributes of property, including alienability). Notwithstanding this expansive claim, property theory's explorations of exclusion have given little attention to alienability.
    • See Thomas W. Merrill, Property and the Right To Exclude, 77 NEB. L. REV. 730, 742-43 (1998) (arguing that exclusion encompasses all attributes of property, including alienability). Notwithstanding this expansive claim, property theory's explorations of exclusion have given little attention to alienability.
  • 9
    • 64949136757 scopus 로고    scopus 로고
    • Alienability has been associated with both the right to the wealth represented by an asset and the ability to transmit the asset to another
    • Alienability has been associated with both the right to the wealth represented by an asset and the ability to transmit the asset to another.
  • 10
    • 64949175778 scopus 로고    scopus 로고
    • See tONY hONORE, Ownership, in mAKING LAW BIND: ESSAYS LEGAL AND PHILOSOPHICAL 161, 170-71 (1987) discussing the right to the capital
    • See tONY hONORE, Ownership, in mAKING LAW BIND: ESSAYS LEGAL AND PHILOSOPHICAL 161, 170-71 (1987) (discussing the "right to the capital"
  • 12
    • 84868930094 scopus 로고    scopus 로고
    • See, e.g, 15 U.S.C. § ii25(dXi)(B)iXVI, 2006, listing the offer to sell a domain name that has not been used as a factor that may indicate bad faith
    • See, e.g., 15 U.S.C. § ii25(dXi)(B)(iXVI) (2006) (listing the offer to sell a domain name that has not been used as a factor that may indicate bad faith
  • 13
    • 64949187033 scopus 로고    scopus 로고
    • eBay Inc. v. Merc Exchange, L.L.C., 126 S. Ct. 1837, 1842 (2006) (Kennedy, J., concurring) expressing concern about injunctions employed as a bargaining tool to charge exorbitant fees to would-be licensees
    • eBay Inc. v. Merc Exchange, L.L.C., 126 S. Ct. 1837, 1842 (2006) (Kennedy, J., concurring) (expressing concern about injunctions "employed as a bargaining tool to charge exorbitant fees" to would-be licensees
  • 14
    • 64949146494 scopus 로고    scopus 로고
    • infra section I.B (discussing these and other examples).
    • infra section I.B (discussing these and other examples).
  • 15
    • 64949156197 scopus 로고    scopus 로고
    • Hundreds of articles and books have addressed the sale of human tissue
    • Hundreds of articles and books have addressed the sale of human tissue.
  • 16
    • 3042858540 scopus 로고    scopus 로고
    • See, e.g., Michele Goodwin, Altruism's Limits: Law, Capacity, and Organ Commodification, 56 RUTGERS L. REV. 305 (2004). The sale of parental rights has also been the subject of extensive debate, much of it provoked by Elisabeth M. Landes & Richard A. Posner, The Economics of the Baby Shortage, 7 J. LEGAL STUD. 323 (1978). Recent work on the sale of legal rights and claims includes, for example, Michael Abramowicz, On the Alienability of Legal Claims, 114 YALE L.J. 697 (2005)
    • See, e.g., Michele Goodwin, Altruism's Limits: Law, Capacity, and Organ Commodification, 56 RUTGERS L. REV. 305 (2004). The sale of parental rights has also been the subject of extensive debate, much of it provoked by Elisabeth M. Landes & Richard A. Posner, The Economics of the Baby Shortage, 7 J. LEGAL STUD. 323 (1978). Recent work on the sale of legal rights and claims includes, for example, Michael Abramowicz, On the Alienability of Legal Claims, 114 YALE L.J. 697 (2005)
  • 17
    • 58649087923 scopus 로고    scopus 로고
    • Another View of the Quagmire: Unconstitutional Conditions and Contract Theory, 33
    • Daniel A. Farber, Another View of the Quagmire: Unconstitutional Conditions and Contract Theory, 33 FLA. ST. U. L. REV. 913 (2006)
    • (2006) FLA. ST. U. L. REV , vol.913
    • Farber, D.A.1
  • 18
    • 78649594938 scopus 로고    scopus 로고
    • Contracting Away Rights: A Comment on Daniel Farber's "Another View of the Quagmire," 33
    • Steven G. Gey, Contracting Away Rights: A Comment on Daniel Farber's "Another View of the Quagmire," 33 FLA. ST. U. L. REV. 953 (2006)
    • (2006) FLA. ST. U. L. REV , vol.953
    • Gey, S.G.1
  • 19
    • 0346025393 scopus 로고    scopus 로고
    • Voting with Intensity, 53
    • and Saul Levmore, Voting with Intensity, 53 STAN. L. REV. 111 (2000).
    • (2000) STAN. L. REV , vol.111
    • Levmore, S.1
  • 20
    • 33947147607 scopus 로고    scopus 로고
    • Creating an American Property Law: Alienability and Its Limits in American History, 120
    • addressing alienability in the context of historical protections against creditors See also
    • See also Claire Priest, Creating an American Property Law: Alienability and Its Limits in American History, 120 HARV. L. REV. 385 (2006) (addressing alienability in the context of historical protections against creditors
    • (2006) HARV. L. REV , vol.385
    • Priest, C.1
  • 21
    • 29844436956 scopus 로고    scopus 로고
    • A Freedom-Promoting Approach to Property: A Renewed Tradition for New Debates, 72
    • discussing the anticommodification critique of expansions in property
    • Jedediah Purdy, A Freedom-Promoting Approach to Property: A Renewed Tradition for New Debates, 72 U. CHI. L. REV. 1237, 1246-48 (2005) (discussing the "anticommodification critique" of expansions in property).
    • (2005) U. CHI. L. REV , vol.1237 , pp. 1246-1248
    • Purdy, J.1
  • 22
    • 64949151273 scopus 로고    scopus 로고
    • A key catalyst for work in this area is Margaret Jane Radin, Market-Inalienability, 100 hARV. l. rEV. 1849 (1987) [hereinafter Radin, Market-Inalienability].
    • A key catalyst for work in this area is Margaret Jane Radin, Market-Inalienability, 100 hARV. l. rEV. 1849 (1987) [hereinafter Radin, Market-Inalienability].
  • 23
    • 64949118381 scopus 로고    scopus 로고
    • See also mARGARET JANE rADIN, cONTESTED COMMODITIES (1996)
    • See also mARGARET JANE rADIN, cONTESTED COMMODITIES (1996)
  • 24
    • 64949146371 scopus 로고    scopus 로고
    • MICHAEL WALZER, SPHERES OF JUSTICE: A DEFENSE OF PLURALISM AND EQUALITY 100-03 (1983) cataloguing blocked exchanges
    • MICHAEL WALZER, SPHERES OF JUSTICE: A DEFENSE OF PLURALISM AND EQUALITY 100-03 (1983) (cataloguing blocked exchanges
  • 25
    • 34948904793 scopus 로고    scopus 로고
    • note 1, at, discussing rationales for inalienability
    • Calabresi & Melamed, supra note 1, at 1111-15 (discussing rationales for inalienability).
    • supra , pp. 1111-1115
    • Calabresi1    Melamed2
  • 26
    • 64949134538 scopus 로고    scopus 로고
    • Rose- Ackerman, supra note 2, at 933 arguing that inalienability rules can be second-best responses to various kinds of market failures
    • Rose- Ackerman, supra note 2, at 933 (arguing that "inalienability rules can be second-best responses to various kinds of market failures"
  • 27
    • 64949135673 scopus 로고    scopus 로고
    • Epstein, supra note 2, at 970 explaining that restraints on alienation can provide indirect control over external harms when direct means of control are ineffective to the task
    • Epstein, supra note 2, at 970 (explaining that restraints on alienation can "provide indirect control over external harms when direct means of control are ineffective to the task"
  • 28
    • 64949126131 scopus 로고    scopus 로고
    • see also Susan Rose- Ackerman, Inalienability, in 2 tHE nEW PALGRAVE DICTIONARY OF ECONOMICS AND THE LAW 268, 273 (Peter Newman ed., 1998) (Inalienability is frequently useful, not as an ideal policy, but as a second-best response to the messiness and complexity of the world.).
    • see also Susan Rose- Ackerman, Inalienability, in 2 tHE nEW PALGRAVE DICTIONARY OF ECONOMICS AND THE LAW 268, 273 (Peter Newman ed., 1998) ("Inalienability is frequently useful, not as an ideal policy, but as a second-best response to the messiness and complexity of the world.").
  • 29
    • 64949174533 scopus 로고    scopus 로고
    • See, e.g., Epstein, supra note 2, at 978-82; Rose-Ackerman, supra note 2, at 943;
    • See, e.g., Epstein, supra note 2, at 978-82; Rose-Ackerman, supra note 2, at 943;
  • 30
    • 64949189721 scopus 로고    scopus 로고
    • see also Shi-Ling Hsu, A Two- Dimensional Framework for Analyzing Property Rights Regimes, 36 U.C. dAVIS L. REV. 813, 870 (2003) explaining that inalienability can protect over-consumed resources, because without market value, the pressure for exploiting such resources dissipates
    • see also Shi-Ling Hsu, A Two- Dimensional Framework for Analyzing Property Rights Regimes, 36 U.C. dAVIS L. REV. 813, 870 (2003) (explaining that inalienability can protect "over-consumed resources," because "without market value, the pressure for exploiting such resources dissipates"
  • 31
    • 64949136759 scopus 로고    scopus 로고
    • Carol M. Rose, From Hfl to COt: Lessons of Water Rights for Carbon Trading, 50 ARIZ. L. REV. 91, 95 (2008) (noting the potential for trade, which opens up a resource to everyone in the world, to putf] too much pressure on the resource).
    • Carol M. Rose, From Hfl to COt: Lessons of Water Rights for Carbon Trading, 50 ARIZ. L. REV. 91, 95 (2008) (noting the potential for trade, which "opens up a resource to everyone in the world," to "putf] too much pressure on the resource").
  • 32
    • 64949163872 scopus 로고    scopus 로고
    • See, e.g., Rose-Ackerman, supra note 2, at 957-58 (discussing the purposes of inalienability in the Homesteading Acts).
    • See, e.g., Rose-Ackerman, supra note 2, at 957-58 (discussing the purposes of inalienability in the Homesteading Acts).
  • 33
    • 64949179572 scopus 로고    scopus 로고
    • See, e.g., Epstein, supra note 2, at 973-78 (giving examples involving guns, alcohol, drugs, and violence-promoting information).
    • See, e.g., Epstein, supra note 2, at 973-78 (giving examples involving guns, alcohol, drugs, and violence-promoting information).
  • 34
    • 64949140718 scopus 로고    scopus 로고
    • The term holdout is usually associated with multi-party bargaining situations, such as those common in land assembly contexts, while hold-up is more frequently used in the context of two-party instances of bilateral monopoly. Both situations exhibit the same basic strategic dynamic; therefore, I will refer to them both as holdout problems here. See infra section II.C (discussing holdout problems).
    • The term "holdout" is usually associated with multi-party bargaining situations, such as those common in land assembly contexts, while "hold-up" is more frequently used in the context of two-party instances of bilateral monopoly. Both situations exhibit the same basic strategic dynamic; therefore, I will refer to them both as "holdout" problems here. See infra section II.C (discussing holdout problems).
  • 35
    • 64949160192 scopus 로고    scopus 로고
    • See, e.g., Calabresi & Melamed, supra note 1, at 1092, 1107 defining liability rules and explaining how they can overcome holdout problems
    • See, e.g., Calabresi & Melamed, supra note 1, at 1092, 1107 (defining liability rules and explaining how they can overcome holdout problems
  • 36
    • 64949170100 scopus 로고    scopus 로고
    • infra section II.C.
    • infra section II.C.
  • 37
    • 64949194674 scopus 로고    scopus 로고
    • See Ayres & Madison, supra note 2, at 54 explaining how inalienability could induce plaintiffs to reveal whether they value an injunction for its own sake or merely as leverage, One of my students, Steve Yelderman, also raised the possibility that alienability limits on injunctions to enforce patents could induce self-sorting by patent holders into different remedial regimes. The potential for alienability restrictions to induce self-selection in the service of distributive goals is explored in Rose-Ackerman, supra note 2, at 949. As Rose -Ackerman explains: If policymakers wish to benefit a particular sort of person but cannot easily identify those people ex ante, they may be able to impose restrictions on the entitlement that are less onerous for the worthy group than for others who are nominally eligible. Id
    • See Ayres & Madison, supra note 2, at 54 (explaining how inalienability could induce plaintiffs to reveal whether they value an injunction for its own sake or merely as leverage). One of my students, Steve Yelderman, also raised the possibility that alienability limits on injunctions to enforce patents could induce self-sorting by patent holders into different remedial regimes. The potential for alienability restrictions to induce self-selection in the service of distributive goals is explored in Rose-Ackerman, supra note 2, at 949. As Rose -Ackerman explains: "If policymakers wish to benefit a particular sort of person but cannot easily identify those people ex ante, they may be able to impose restrictions on the entitlement that are less onerous for the worthy group than for others who are nominally eligible." Id.
  • 38
    • 64949148391 scopus 로고    scopus 로고
    • Ayres & Madison, supra note 2, examines how inalienable injunctions might respond to strategic remedial choices designed to hold up the defendant. Michael Heller has examined how bans on fragmentation (that is, prohibitions on alienating particular configurations) might be explained by a desire to reduce downstream holdout problems. Heller, supra note 2, at 1176-82.
    • Ayres & Madison, supra note 2, examines how inalienable injunctions might respond to strategic remedial choices designed to "hold up" the defendant. Michael Heller has examined how bans on fragmentation (that is, prohibitions on alienating particular configurations) might be explained by a desire to reduce downstream holdout problems. Heller, supra note 2, at 1176-82.
  • 39
    • 64949170703 scopus 로고    scopus 로고
    • See, e.g., Epstein, supra note 2, at 990 In essence the restraint on alienation is a substitute for direct remedies for misuse when these are costly and uncertain to administer.
    • See, e.g., Epstein, supra note 2, at 990 ("In essence the restraint on alienation is a substitute for direct remedies for misuse when these are costly and uncertain to administer."
  • 40
    • 64949164487 scopus 로고
    • The Economic Nature of Wildlife Law, 18
    • Dean Lueck, The Economic Nature of Wildlife Law, 18 J. lEGAL sTUD. 291, 318-19 (1989).
    • (1989) J. lEGAL sTUD , vol.291 , pp. 318-319
    • Lueck, D.1
  • 41
    • 64949202140 scopus 로고    scopus 로고
    • See MICHAEL HELLER, THE GRIDLOCK ECONOMY 1-22 (2008) [hereinafter HELLER, GRIDLOCK] describing the tragedy of the anticommons as a problem of gridlock
    • See MICHAEL HELLER, THE GRIDLOCK ECONOMY 1-22 (2008) [hereinafter HELLER, GRIDLOCK] (describing the tragedy of the anticommons as a problem of "gridlock"
  • 42
    • 3142707241 scopus 로고    scopus 로고
    • Lee Anne Fennell, Common Interest Tragedies, 98 Nw. U. L. REV. 907, 926-30 (2004) (discussing the connection between holdout problems and the anticommons tragedy). For an extended discussion of anticommons tragedies, see generally Michael A. Heller, The Tragedy of the Anticommons: Property in the Transition from Marx to Markets, in hARV. L. REV. 621 (1998) [hereinafter Heller, Anticommons].
    • Lee Anne Fennell, Common Interest Tragedies, 98 Nw. U. L. REV. 907, 926-30 (2004) (discussing the connection between holdout problems and the anticommons tragedy). For an extended discussion of anticommons tragedies, see generally Michael A. Heller, The Tragedy of the Anticommons: Property in the Transition from Marx to Markets, in hARV. L. REV. 621 (1998) [hereinafter Heller, Anticommons].
  • 43
    • 64949163020 scopus 로고    scopus 로고
    • See, e.g., Rose-Ackerman, supra note 2, at 939, 945-48; infra section III.B.2.
    • See, e.g., Rose-Ackerman, supra note 2, at 939, 945-48; infra section III.B.2.
  • 44
    • 64949134424 scopus 로고    scopus 로고
    • See infra section III.C.i.
    • See infra section III.C.i.
  • 45
    • 64949092473 scopus 로고    scopus 로고
    • See infra section III.C.2.
    • See infra section III.C.2.
  • 46
    • 41449118333 scopus 로고    scopus 로고
    • See, e.g., Daphna Lewinsohn- Zamir, More Is Not Always Better than Less: An Exploration in Property Law, 92 MINN. L. REV. 634, 668 (2008) explaining how the invalidation of a condition on a grant puts the donor to a choice between withholding the grant altogether or making it free of the condition
    • See, e.g., Daphna Lewinsohn- Zamir, More Is Not Always Better than Less: An Exploration in Property Law, 92 MINN. L. REV. 634, 668 (2008) (explaining how the invalidation of a condition on a grant puts the donor to a choice between withholding the grant altogether or making it free of the condition
  • 47
    • 64949120248 scopus 로고    scopus 로고
    • infra section III.A.3.
    • infra section III.A.3.
  • 48
    • 64949104890 scopus 로고    scopus 로고
    • Existing treatments have broken down justifications for alienability restrictions in a variety of other ways. See, e.g., Calabresi & Melamed, supra note i, at 1111-15 discussing how efficiency and distributive goals might be advanced through inalienability rules
    • Existing treatments have broken down justifications for alienability restrictions in a variety of other ways. See, e.g., Calabresi & Melamed, supra note i, at 1111-15 (discussing how efficiency and distributive goals might be advanced through inalienability rules
  • 49
    • 64949132656 scopus 로고    scopus 로고
    • Epstein, supra note 2, at 970 distinguishing between inalienability rules targeting the practical control of externalities and those aimed at asserted distributional weakness
    • Epstein, supra note 2, at 970 (distinguishing between inalienability rules targeting "the practical control of externalities" and those aimed at "asserted distributional weakness"
  • 50
    • 64949084696 scopus 로고    scopus 로고
    • Hsu, supra note 10, at 870 listing three categories of goals served by alienability and inalienability
    • Hsu, supra note 10, at 870 (listing three categories of goals served by alienability and inalienability
  • 51
    • 64949167207 scopus 로고    scopus 로고
    • Rose-Ackerman, supra note 2, at 932-33 identifying [t]hree broad rationales for restrictions: those based on economic efficiency itself, those directed at certain specialized distributive goals, and those necessary to safeguard the responsible functioning of a democratic state
    • Rose-Ackerman, supra note 2, at 932-33 (identifying "[t]hree broad rationales" for restrictions: those based on "economic efficiency itself," those directed at "certain specialized distributive goals," and those necessary to safeguard "the responsible functioning of a democratic state"
  • 52
    • 64949104172 scopus 로고    scopus 로고
    • W. Stephen Westermann, A Theory of Autonomy Entitlements: One View of the Cathedral Nave Dedicated to Constitutional Rights and Other Individual Liberties 8-9 & n.19 (Apr. 26, 2007) (unpublished manuscript), available at http://www.ssrn.com/abstract=977964 (listing eight reasons that limits on alienability might be adopted).
    • W. Stephen Westermann, A Theory of Autonomy Entitlements: One View of the Cathedral Nave Dedicated to Constitutional Rights and Other Individual Liberties 8-9 & n.19 (Apr. 26, 2007) (unpublished manuscript), available at http://www.ssrn.com/abstract=977964 (listing eight reasons that limits on alienability might be adopted).
  • 53
    • 84867807284 scopus 로고
    • Allocational Sanctions: The Problem of Negative Rights in a Positive State, 132
    • discussing structural justifications for making rights nonwaivable See, e.g
    • See, e.g., Seth F. Kreimer, Allocational Sanctions: The Problem of Negative Rights in a Positive State, 132 U. pA. L. REV. 1293, 1387-90 (1984) (discussing structural justifications for making rights nonwaivable
    • (1984) U. pA. L. REV , vol.1293 , pp. 1387-1390
    • Kreimer, S.F.1
  • 54
    • 64949124292 scopus 로고    scopus 로고
    • Radin, Market-Inalienability, supra note 8, at 1879-86 (discussing potential negative effects of commodification on personhood and on the texture of the human world (quoting hILARY pUTNAM, rEASON, tRUTH AND hISTORY 141 (1981)).
    • Radin, Market-Inalienability, supra note 8, at 1879-86 (discussing potential negative effects of commodification on personhood and on the "texture of the human world" (quoting hILARY pUTNAM, rEASON, tRUTH AND hISTORY 141 (1981)).
  • 55
    • 64949165139 scopus 로고    scopus 로고
    • See Rose-Ackerman, supra note 2, at 938 (discussing inalienability as a response to market failure in instances where straightforward responses like internalizing externalities are unavailable or unduly costly).
    • See Rose-Ackerman, supra note 2, at 938 (discussing inalienability as a response to market failure in instances where "straightforward responses" like internalizing externalities are unavailable or unduly costly).
  • 57
    • 64949135024 scopus 로고    scopus 로고
    • See, e.g., Dean Lueck & Thomas J. Miceli, Property Law, in 1 HANDBOOK OF lAW AND ECONOMICS 183, 248 (A. Mitchell Polinsky & Steven Shavell eds., 2007) (citing dAVID D. FRIEDMAN, LAW'S ORDER: WHAT ECONOMICS HAS TO DO WITH THE LAW AND WHY IT MATTERS 242 (2000)).
    • See, e.g., Dean Lueck & Thomas J. Miceli, Property Law, in 1 HANDBOOK OF lAW AND ECONOMICS 183, 248 (A. Mitchell Polinsky & Steven Shavell eds., 2007) (citing dAVID D. FRIEDMAN, LAW'S ORDER: WHAT ECONOMICS HAS TO DO WITH THE LAW AND WHY IT MATTERS 242 (2000)).
  • 58
    • 64949198862 scopus 로고    scopus 로고
    • Restrictions on transfers are one way of making illegal activity less profitable-a well- recognized approach to violations that are hard to detect
    • Restrictions on transfers are one way of making illegal activity less profitable-a well- recognized approach to violations that are hard to detect.
  • 59
    • 64949147111 scopus 로고    scopus 로고
    • See Bartnicki v. Vopper, 532 U.S. 514, 549-53 (2001) (Rehnquist, C.J., dissenting) (discussing the dry-up-the-market justification for making conduct illegal, where doing so makes difficult-to-police violations less profitable).
    • See Bartnicki v. Vopper, 532 U.S. 514, 549-53 (2001) (Rehnquist, C.J., dissenting) (discussing the "dry-up-the-market" justification for making conduct illegal, where doing so makes difficult-to-police violations less profitable).
  • 60
    • 64949178929 scopus 로고
    • pOLICY , Debate surrounding Titmuss's work on blood has been extensive
    • RICHARD M. TITMUSS, THE GIFT RELATIONSHIP: FROM HUMAN BLOOD TO sOCIAL pOLICY (1971). Debate surrounding Titmuss's work on blood has been extensive.
    • (1971) TO sOCIAL
    • TITMUSS, R.M.1    GIFT RELATIONSHIP, T.2    HUMAN BLOOD, F.3
  • 61
    • 64949098935 scopus 로고    scopus 로고
    • See, e.g., Kenneth J. Arrow, Gifts and Exchanges, 1 pHIL. & pUB. AFF. 343 (1972)
    • See, e.g., Kenneth J. Arrow, Gifts and Exchanges, 1 pHIL. & pUB. AFF. 343 (1972)
  • 62
    • 0032246231 scopus 로고    scopus 로고
    • Rose-Ackerman, supra note 2, at 945-48; Emanuel D. Thorne, When Private Parts Are Made Public Goods: The Economics of Market-Inalienability, 15 yALE J. ON REG. 149 (1998).
    • Rose-Ackerman, supra note 2, at 945-48; Emanuel D. Thorne, When Private Parts Are Made Public Goods: The Economics of Market-Inalienability, 15 yALE J. ON REG. 149 (1998).
  • 63
    • 64949103238 scopus 로고    scopus 로고
    • See TITMUSS, supra note 29, at 240-46
    • See TITMUSS, supra note 29, at 240-46.
  • 64
    • 64949197513 scopus 로고    scopus 로고
    • See, e.g, Rose-Ackerman, supra note 2, at 946
    • See, e.g., Rose-Ackerman, supra note 2, at 946.
  • 65
    • 64949130466 scopus 로고    scopus 로고
    • TITMUSS, supra note 29, at 223
    • TITMUSS, supra note 29, at 223.
  • 66
    • 64949187768 scopus 로고    scopus 로고
    • The same argument might, of course, be made with respect to other goods whose sale is challenged on intrinsic grounds-organs, sexual services, reproductive services, and so on
    • The same argument might, of course, be made with respect to other goods whose sale is challenged on intrinsic grounds-organs, sexual services, reproductive services, and so on.
  • 67
    • 64949135675 scopus 로고    scopus 로고
    • These effects would encompass not just individual interests in the entitlement but also what have been termed structural or instrumental justifications for the inalienability of particular endowments
    • These effects would encompass not just individual interests in the entitlement but also what have been termed "structural" or "instrumental" justifications for the inalienability of particular endowments.
  • 68
    • 64949120359 scopus 로고    scopus 로고
    • See, e.g., Vicki Been, Exit As a Constraint on Land Use Exactions: Rethinking the Unconstitutional Conditions Doctrine, 91 COLUM. L. REV. 473, 497, 498 & n.125 (1991) discussing structural arguments for the inalienability of constitutional rights that relate to effects on society, governance, or third parties
    • See, e.g., Vicki Been, "Exit" As a Constraint on Land Use Exactions: Rethinking the Unconstitutional Conditions Doctrine, 91 COLUM. L. REV. 473, 497, 498 & n.125 (1991) (discussing "structural" arguments for the inalienability of constitutional rights that relate to effects on society, governance, or third parties
  • 69
    • 64949164489 scopus 로고    scopus 로고
    • Richard L. Hasen, Vote Buying, 88 CAL. L. REV. 1323, 1335-36 (2000) (discussing non-instrumentalist and instrumentalist rationales for making votes inalienable and identifying the latter with Cass Sunstein's argument that the alienability of votes would change the meaning of voting (citing Cass R. Sunstein, Incommensurability and Valuation in Law, 92 MICH. L. REV. 779, 849 (1994))).
    • Richard L. Hasen, Vote Buying, 88 CAL. L. REV. 1323, 1335-36 (2000) (discussing "non-instrumentalist" and "instrumentalist" rationales for making votes inalienable and identifying the latter with Cass Sunstein's argument that the alienability of votes would change the meaning of voting (citing Cass R. Sunstein, Incommensurability and Valuation in Law, 92 MICH. L. REV. 779, 849 (1994))).
  • 70
    • 64949133157 scopus 로고    scopus 로고
    • A corollary of this point is that the blockade may appear inefficient when viewed ex post. See infra section III.B.
    • A corollary of this point is that the blockade may appear inefficient when viewed ex post. See infra section III.B.
  • 71
    • 64949145820 scopus 로고    scopus 로고
    • See TlTMUSS, supra note 29, at 223
    • See TlTMUSS, supra note 29, at 223.
  • 72
    • 64949202999 scopus 로고    scopus 로고
    • Supply effects that are straightforwardly produced by market forces might be objectionable because of an entitlement's special characteristics. For example, babies or donor organs might be produced in larger quantities or in different output patterns as a result of market forces-results that might be viewed as fundamentally at odds with the meaning of parental rights or organ donation
    • Supply effects that are straightforwardly produced by market forces might be objectionable because of an entitlement's special characteristics. For example, babies or donor organs might be produced in larger quantities or in different output patterns as a result of market forces-results that might be viewed as fundamentally at odds with the meaning of parental rights or organ donation.
  • 73
    • 64949085881 scopus 로고    scopus 로고
    • See, e.g., Tamar Frankel & Frances H. Miller, The Inapplicability of Market Theory to Adoptions, 67 B.U. L. REV. 99, 101-02 (1987). At least in theory, these supply effects could be addressed by means other than inalienability (for example, production quotas), making the concern extrinsic in my schema. Similarly, the concern that people would engage in violence or oppression to harvest organs or produce babies is also extrinsic in that these acts could, in theory, be controlled independent of alienability restraints.
    • See, e.g., Tamar Frankel & Frances H. Miller, The Inapplicability of Market Theory to Adoptions, 67 B.U. L. REV. 99, 101-02 (1987). At least in theory, these supply effects could be addressed by means other than inalienability (for example, production quotas), making the concern "extrinsic" in my schema. Similarly, the concern that people would engage in violence or oppression to harvest organs or produce babies is also "extrinsic" in that these acts could, in theory, be controlled independent of alienability restraints.
  • 74
    • 64949100264 scopus 로고    scopus 로고
    • See supra p. 1411. However, features intrinsic to the entitlements at issue contribute to the horrific nature of these acts.
    • See supra p. 1411. However, features intrinsic to the entitlements at issue contribute to the horrific nature of these acts.
  • 75
    • 64949163148 scopus 로고    scopus 로고
    • For example, Michael Heller's discussion of legal rules against entitlement fragmentation (an extrinsically based inalienability rule) focuses on the ex post effect of these rules on future marketability.
    • For example, Michael Heller's discussion of legal rules against entitlement fragmentation (an extrinsically based inalienability rule) focuses on the ex post effect of these rules on future marketability.
  • 76
    • 64949138239 scopus 로고    scopus 로고
    • See Heller, supra note 2, at 1176-82
    • See Heller, supra note 2, at 1176-82.
  • 77
    • 64949195277 scopus 로고    scopus 로고
    • I do not mean to suggest that there could never be an intrinsic argument relating to the alienability of the goods on this list.
    • I do not mean to suggest that there could never be an intrinsic argument relating to the alienability of the goods on this list.
  • 78
    • 64949138238 scopus 로고    scopus 로고
    • See, e.g, Steven Cherensky, Comment, A Penny for Their Thoughts: Employee-Inventors, Preinvention Assignment Agreements, Property, and Personhood, 81 CAL. L. REV. 59s 1993, discussing a personhood argument against preinvention agreements that assign patent rights to the employer
    • See, e.g., Steven Cherensky, Comment, A Penny for Their Thoughts: Employee-Inventors, Preinvention Assignment Agreements, Property, and Personhood, 81 CAL. L. REV. 59s (1993) (discussing a personhood argument against preinvention agreements that assign patent rights to the employer).
  • 79
    • 64949152651 scopus 로고    scopus 로고
    • The term has been attributed to Peter Detkin, who coined it in 2001 when he was a lawyer at Intel. hELLER, gRIDLOCK, supra note 18, at 218 n.34. According to Detkin, patent trolls try to make a lot of money off a patent that they are not practicing and have no intention of practicing and in most cases never practiced. Alan Murray, War on Patent Trolls May Be Wrong Battle, WALL ST. J., Mar. 22, 2006, at A2, quoted in HELLER, GRIDLOCK, supra note 18, at 218 n-34.
    • The term has been attributed to Peter Detkin, who coined it in 2001 when he was a lawyer at Intel. hELLER, gRIDLOCK, supra note 18, at 218 n.34. According to Detkin, patent trolls "try to make a lot of money off a patent that they are not practicing and have no intention of practicing and in most cases never practiced." Alan Murray, War on "Patent Trolls" May Be Wrong Battle, WALL ST. J., Mar. 22, 2006, at A2, quoted in HELLER, GRIDLOCK, supra note 18, at 218 n-34.
  • 80
    • 34547733961 scopus 로고    scopus 로고
    • Patent Holdup and Royalty Stacking, 85
    • See, e.g
    • See, e.g., Mark A. Lemley & Carl Shapiro, Patent Holdup and Royalty Stacking, 85 TEX. L. REV. 1991, 2008-10 (2007)
    • (2007) TEX. L. REV. 1991 , pp. 2008-2010
    • Lemley, M.A.1    Shapiro, C.2
  • 81
    • 64949097196 scopus 로고    scopus 로고
    • Douglas Gary Lichtman, Patent Holdouts in the Standard-Setting Process, ACADEMIC ADVISORY COUNCIL BULLETIN (Progress & Freedom Found., Washington, D.C.), May 2006, at 4, http://www.pff.org/issues-pubs/ip/bulletins/bulletin1.3patent.pdf. Firms are typically described as trolls only when they do not make any products of their own; firms that make products may also hold patent rights essential to others, but their strategic posturing is constrained by their own need to use components patented by others.
    • Douglas Gary Lichtman, Patent Holdouts in the Standard-Setting Process, ACADEMIC ADVISORY COUNCIL BULLETIN (Progress & Freedom Found., Washington, D.C.), May 2006, at 4, http://www.pff.org/issues-pubs/ip/bulletins/bulletin1.3patent.pdf. Firms are typically described as trolls only when they do not make any products of their own; firms that make products may also hold patent rights essential to others, but their strategic posturing is constrained by their own need to use components patented by others.
  • 82
    • 64949158836 scopus 로고    scopus 로고
    • See HELLER, GRIDLOCK, supra note 18, at 59 (noting that the system of mutually] assured destruction that constrains equally balanced competitors does not deter patent trolls).
    • See HELLER, GRIDLOCK, supra note 18, at 59 (noting that the system of "mutually] assured destruction" that constrains "equally balanced competitors" does not deter patent trolls).
  • 83
    • 64949167724 scopus 로고    scopus 로고
    • See, e.g., Lemley & Shapiro, supra note 41, at 2008-10. A patent holder's threatened shutdown of BlackBerry email service is often cited as an example of the patent troll pattern.
    • See, e.g., Lemley & Shapiro, supra note 41, at 2008-10. A patent holder's threatened shutdown of BlackBerry email service is often cited as an example of the "patent troll" pattern.
  • 84
    • 84868930090 scopus 로고    scopus 로고
    • See, e.g., id. at 2008-09. The shutdown was averted by a $612.5 million settlement reached shortly before a judge was expected to issue an injunction.
    • See, e.g., id. at 2008-09. The shutdown was averted by a $612.5 million settlement reached shortly before a judge was expected to issue an injunction.
  • 85
    • 56849087206 scopus 로고    scopus 로고
    • BlackBerry Service To Continue
    • See, Mar. 4, at
    • See Ian Austen, BlackBerry Service To Continue, N.Y. TIMES, Mar. 4, 2006, at Ci.
    • (2006) N.Y. TIMES
    • Austen, I.1
  • 86
    • 64949201025 scopus 로고    scopus 로고
    • Although all patents grant a limited monopoly, the degree of leverage this confers against another party depends on questions of both remedies and substitutes. As the infringer moves further along the path to production, viable substitutes dwindle; the company, through its investments, becomes increasingly committed to one manner of proceeding
    • Although all patents grant a limited monopoly, the degree of leverage this confers against another party depends on questions of both remedies and substitutes. As the infringer moves further along the path to production, viable substitutes dwindle; the company, through its investments, becomes increasingly committed to one manner of proceeding.
  • 87
    • 64949124291 scopus 로고    scopus 로고
    • See Lichtman, supra note 41, at 2. By analogy, all land is unique and hence each landowner holds a monopoly over a specific location, but this only produces significant monopoly power in fairly limited circumstances-as where the land is uniquely well-suited to some particular purpose, or is part of a larger assembly, as for a railroad or highway.
    • See Lichtman, supra note 41, at 2. By analogy, all land is unique and hence each landowner holds a monopoly over a specific location, but this only produces significant monopoly power in fairly limited circumstances-as where the land is uniquely well-suited to some particular purpose, or is part of a larger assembly, as for a railroad or highway.
  • 88
    • 0009627364 scopus 로고
    • The Economics of Public Use, 72
    • See
    • See Thomas W. Merrill, The Economics of Public Use, 72 CORNELL L. REV. 61, 75-76 (1986).
    • (1986) CORNELL L. REV , vol.61 , pp. 75-76
    • Merrill, T.W.1
  • 89
    • 64949133788 scopus 로고    scopus 로고
    • eBay Inc. v. MercExchange, L.L.C., 126 S. Ct. 1837, l842 (2006) Kennedy, J., concurring
    • eBay Inc. v. MercExchange, L.L.C., 126 S. Ct. 1837, l842 (2006) (Kennedy, J., concurring
  • 90
    • 34547794065 scopus 로고    scopus 로고
    • see also Balganesh, supra note 3, at 655; John M. Golden, Commentary, Patent Trolls and Patent Remedies, 85 tEX. L. REV. 21 II, 2113 2007
    • see also Balganesh, supra note 3, at 655; John M. Golden, Commentary, "Patent Trolls" and Patent Remedies, 85 tEX. L. REV. 21 II, 2113 (2007).
  • 91
    • 64949199983 scopus 로고    scopus 로고
    • 126 S. Ct. 1837
    • 126 S. Ct. 1837.
  • 92
    • 64949129872 scopus 로고    scopus 로고
    • MercExchange, L.L.C. v. eBay, Inc., 500 F. Supp. 2d 556, 572 (E.D. Va. 2007).
    • MercExchange, L.L.C. v. eBay, Inc., 500 F. Supp. 2d 556, 572 (E.D. Va. 2007).
  • 93
    • 64949150895 scopus 로고    scopus 로고
    • The system of domain name registration allows website addresses to be claimed on a relatively unrestricted first-in-time basis
    • The system of domain name registration allows website addresses to be claimed on a relatively unrestricted first-in-time basis.
  • 94
    • 64949086737 scopus 로고    scopus 로고
    • See, e.g., Porsche Cars N. Am., Inc. v. Porsche.net, 302 F.3d 248, 252 (4th Cir. 2002) A person seeking the right to use a particular domain name may register with one of a number of registrar organizations that assign domain names on a first-come first- served basis.
    • See, e.g., Porsche Cars N. Am., Inc. v. Porsche.net, 302 F.3d 248, 252 (4th Cir. 2002) ("A person seeking the right to use a particular domain name may register with one of a number of registrar organizations that assign domain names on a first-come first- served basis."
  • 95
    • 0037331867 scopus 로고    scopus 로고
    • Anupam Chander, The New, New Property, 81 TEX. L. REV. 715 (2003) (discussing and criticizing the first-come, first-served system of domain name rights). Federal statutes place some limits on domain name registration and use, however.
    • Anupam Chander, The New, New Property, 81 TEX. L. REV. 715 (2003) (discussing and criticizing the "first-come, first-served" system of domain name rights). Federal statutes place some limits on domain name registration and use, however.
  • 96
    • 0346449636 scopus 로고    scopus 로고
    • See infra notes 49-50 and accompanying text. A great deal has been written about cybersquatting and related phenomena; some treatments that connect the topic to larger property theory and mechanism design questions include Chander, supra; Lewinsohn-Zamir, supra note 22, at 693-94; and Gideon Parchomovsky, On Trademarks, Domain Names, and Internal Auctions, 2001 U. ILL. L. REV. 211.
    • See infra notes 49-50 and accompanying text. A great deal has been written about cybersquatting and related phenomena; some treatments that connect the topic to larger property theory and mechanism design questions include Chander, supra; Lewinsohn-Zamir, supra note 22, at 693-94; and Gideon Parchomovsky, On Trademarks, Domain Names, and Internal Auctions, 2001 U. ILL. L. REV. 211.
  • 97
    • 64949124915 scopus 로고    scopus 로고
    • See Virtual Works, Inc. v. Volkswagen of Am., Inc., 238 F.3d 264, 267 4th Cir. 2001
    • See Virtual Works, Inc. v. Volkswagen of Am., Inc., 238 F.3d 264, 267 (4th Cir. 2001
  • 98
    • 64949154745 scopus 로고    scopus 로고
    • Spor- ty's Farm L.L.C. v. Sportsman's Market, Inc., 202 F.3d 489, 493 (2d Cir. 2000).
    • Spor- ty's Farm L.L.C. v. Sportsman's Market, Inc., 202 F.3d 489, 493 (2d Cir. 2000).
  • 99
    • 84868923067 scopus 로고    scopus 로고
    • Pub. L. No. 106-113, 113 Stat. 1501A-545 (codified at 15 U.S.C. § 1125d, 2006
    • Pub. L. No. 106-113, 113 Stat. 1501A-545 (codified at 15 U.S.C. § 1125(d) (2006)).
  • 100
    • 84868916116 scopus 로고    scopus 로고
    • Id. §3002, 113 Stat, at 1501A-545 (codified at 15 U.S.C. § 1125(d)(1)(A)i
    • Id. §3002, 113 Stat, at 1501A-545 (codified at 15 U.S.C. § 1125(d)(1)(A)(i)
  • 101
    • 84868930083 scopus 로고    scopus 로고
    • id. §3003, 113 Stat, at 1501A-549 (codified at 15 U.S.C. § 1117d
    • id. §3003, 113 Stat, at 1501A-549 (codified at 15 U.S.C. § 1117(d)
  • 102
    • 64949175196 scopus 로고    scopus 로고
    • see also Virtual Works, 238 F.3d at 267-68 (describing the statutory scheme). Rules promulgated by the Internet Corporation for Assigned Names and Numbers (ICANN) as part of its dispute resolution policies also focus on bad faith.
    • see also Virtual Works, 238 F.3d at 267-68 (describing the statutory scheme). Rules promulgated by the Internet Corporation for Assigned Names and Numbers (ICANN) as part of its dispute resolution policies also focus on bad faith.
  • 103
    • 84868914355 scopus 로고    scopus 로고
    • See note 47, at, ICANN, Rules for Uniform Domain Name Dispute Resolution Policy Oct. 24
    • See Parchomovsky, supra note 47, at 213; ICANN, Rules for Uniform Domain Name Dispute Resolution Policy (Oct. 24, 1999), http://www.icann.org/dndr/udrp/uniform-rules.htm;
    • (1999) supra , pp. 213
    • Parchomovsky1
  • 104
    • 84868935818 scopus 로고    scopus 로고
    • see also ICANN, Uniform Domain Name Dispute Resolution Policy (Oct. 24, 1999, http://www.icann. org/en/udrp/udrp-policy-240ct99.htm. Further limits on domain name registration for those displaying materials that are obscene or harmful to minors are found in the Truth in Domain Names Act of 2003, Pub. L. 108-21, 117 Stat. 686 (codified at 18 U.S.C. § 2252B 2006
    • see also ICANN, Uniform Domain Name Dispute Resolution Policy (Oct. 24, 1999), http://www.icann. org/en/udrp/udrp-policy-240ct99.htm. Further limits on domain name registration for those displaying materials that are obscene or "harmful to minors" are found in the Truth in Domain Names Act of 2003, Pub. L. 108-21, 117 Stat. 686 (codified at 18 U.S.C. § 2252B (2006)).
  • 105
    • 7544240180 scopus 로고    scopus 로고
    • See generally Christopher G. Clark, Note, The Truth in Domain Names Act of 2003 and a Preventative Measure To Combat Typosquatting, 89 cORNELL L. REV. 1476 (2004).
    • See generally Christopher G. Clark, Note, The Truth in Domain Names Act of 2003 and a Preventative Measure To Combat Typosquatting, 89 cORNELL L. REV. 1476 (2004).
  • 106
    • 84956547845 scopus 로고    scopus 로고
    • § ii25(d)(i)(B)i, ii
    • 15 U.S.C. § ii25(d)(i)(B)(i)-(ii).
    • 15 U.S.C
  • 107
    • 84868930085 scopus 로고    scopus 로고
    • Id. § 1125(d)(i)(B)(i)(I)IV
    • Id. § 1125(d)(i)(B)(i)(I)(IV
  • 112
    • 0347020596 scopus 로고    scopus 로고
    • The empirical significance of this concern is unclear. Ward Farnsworth's examination of twenty nuisance cases did not reveal any instances of post-judgment bargaining or any indication that such bargaining would have occurred had the cases been decided differently. Ward Farns- worth, Do Parties to Nuisance Cases Bargain After Judgment? A Glimpse Inside the Cathedral, 66 U. CHI. l. REV. 373, 381-84 (1999).
    • The empirical significance of this concern is unclear. Ward Farnsworth's examination of twenty nuisance cases did not reveal any instances of post-judgment bargaining or any indication that such bargaining would have occurred had the cases been decided differently. Ward Farns- worth, Do Parties to Nuisance Cases Bargain After Judgment? A Glimpse Inside the Cathedral, 66 U. CHI. l. REV. 373, 381-84 (1999).
  • 113
    • 64949126788 scopus 로고    scopus 로고
    • 31 A. 646 Pa. 1895
    • 31 A. 646 (Pa. 1895).
  • 114
    • 64949165259 scopus 로고    scopus 로고
    • Id. at 647
    • Id. at 647.
  • 115
    • 64949161208 scopus 로고    scopus 로고
    • See Ayres & Madison, supra note 2, at 49-50 (analyzing Pile and the strategic potential of the plaintiff's remedial choice).
    • See Ayres & Madison, supra note 2, at 49-50 (analyzing Pile and the strategic potential of the plaintiff's remedial choice).
  • 116
    • 64949183072 scopus 로고    scopus 로고
    • See, e.g., THOMAS W. MERRILL & HENRY E. SMITH, PROPERTY: PRINCIPLES AND pOLICIES 54-56, 67-77 (2007) (discussing these remedial approaches, which depart from the common law's harsh injunctive treatment of even the most minimal and innocent encroachments). Although these forms of relief represent the modern trend, their availability varies by jurisdiction and is restricted in various ways.
    • See, e.g., THOMAS W. MERRILL & HENRY E. SMITH, PROPERTY: PRINCIPLES AND pOLICIES 54-56, 67-77 (2007) (discussing these remedial approaches, which depart from the common law's harsh injunctive treatment of even the most minimal and innocent encroachments). Although these forms of relief represent the modern trend, their availability varies by jurisdiction and is restricted in various ways.
  • 117
    • 64949085335 scopus 로고    scopus 로고
    • See id. at 54-56, 76;
    • See id. at 54-56, 76;
  • 118
    • 64949094412 scopus 로고    scopus 로고
    • see also jESSE DUKEMINIER ET AL., pROPERTY 135 (6th ed. 2006) (noting [t]he modern tendency. to ease the plight of innocent improvers). For additional discussion, see Matteo Rizzolli, Building Encroachments (Dec. 2, 2008) (unpublished manuscript), available at http://ssrn.com/abstract=1310256
    • see also jESSE DUKEMINIER ET AL., pROPERTY 135 (6th ed. 2006) (noting "[t]he modern tendency. to ease the plight of innocent improvers"). For additional discussion, see Matteo Rizzolli, Building Encroachments (Dec. 2, 2008) (unpublished manuscript), available at http://ssrn.com/abstract=1310256
  • 119
    • 64949110344 scopus 로고    scopus 로고
    • Ayres & Madison, supra note 2, at 71-81. The alienability limit would only bar plaintiff-to- defendant sales; the winning plaintiff could sell her injunction to third parties if she wished. Id. at 71-72. The alienability limit would serve only as a default rule; the parties together or the defendant acting alone could opt for full alienability. Id. at 98-100.
    • Ayres & Madison, supra note 2, at 71-81. The alienability limit would only bar plaintiff-to- defendant sales; the winning plaintiff could sell her injunction to third parties if she wished. Id. at 71-72. The alienability limit would serve only as a default rule; the parties together or the defendant acting alone could opt for full alienability. Id. at 98-100.
  • 120
    • 64949121010 scopus 로고    scopus 로고
    • Id. at 100 (Inalienability and additur in effect give defendants the right to make a take-it- or- leave- it offer.).
    • Id. at 100 ("Inalienability and additur in effect give defendants the right to make a take-it- or- leave- it offer.").
  • 121
    • 64949204313 scopus 로고
    • The 1987 McCorkle Lecture: Blackmail, 74
    • Ronald H. Coase, The 1987 McCorkle Lecture: Blackmail, 74 VA. L. REV. 65s, 670 (1988)
    • (1988) VA. L. REV , vol.65 s , pp. 670
    • Coase, R.H.1
  • 122
    • 64949180802 scopus 로고    scopus 로고
    • see also ROBERT NOZICK, ANARCHY, STATE, AND UTOPIA 84-85 (1974) (presenting a similar example in which a neighbor has no desire to erect the [ugly] structure on the land; he formulates his plan and informs you of it solely in order to sell you his abstention from it).
    • see also ROBERT NOZICK, ANARCHY, STATE, AND UTOPIA 84-85 (1974) (presenting a similar example in which a "neighbor has no desire to erect the [ugly] structure on the land; he formulates his plan and informs you of it solely in order to sell you his abstention from it").
  • 123
    • 64949157693 scopus 로고    scopus 로고
    • For a recent examination of such problems, see generally Daniel B. Kelly, Strategic Spillovers (Dec. 13, 2008) (unpublished manuscript, on file with the Harvard Law School Library).
    • For a recent examination of such problems, see generally Daniel B. Kelly, Strategic Spillovers (Dec. 13, 2008) (unpublished manuscript, on file with the Harvard Law School Library).
  • 124
    • 64949160588 scopus 로고    scopus 로고
    • The scholarly literature on blackmail is unusually rich. See, e.g., JOEL FEINBERG, HARMLESS WRONGDOING 238-76 1988
    • The scholarly literature on blackmail is unusually rich. See, e.g., JOEL FEINBERG, HARMLESS WRONGDOING 238-76 (1988
  • 125
    • 0006245224 scopus 로고    scopus 로고
    • NOZICK, supra note 62, at 85-86; Mitchell N. Ber- man, The Evidentiary Theory of Blackmail: Taking Motives Seriously, 65 U. CHI. L. REV. 795 (1998)
    • NOZICK, supra note 62, at 85-86; Mitchell N. Ber- man, The Evidentiary Theory of Blackmail: Taking Motives Seriously, 65 U. CHI. L. REV. 795 (1998)
  • 126
    • 84868916109 scopus 로고    scopus 로고
    • 83)
    • 83)
  • 127
    • 84927457142 scopus 로고
    • Unraveling the Paradox of Blackmail, 84
    • James Lindgren, Unraveling the Paradox of Blackmail, 84 COLUM. L. REV. 670 (1984)
    • (1984) COLUM. L. REV , vol.670
    • Lindgren, J.1
  • 128
    • 64949198863 scopus 로고    scopus 로고
    • Symposium, Blackmail, 141 U. PA. L. REV. 1565 (1993). The text sets out the basic puzzle with which most authors begin their analyses.
    • Symposium, Blackmail, 141 U. PA. L. REV. 1565 (1993). The text sets out the basic puzzle with which most authors begin their analyses.
  • 129
    • 64949200908 scopus 로고    scopus 로고
    • See, e.g., dUKEMINIER ET AL., supra note 59, at 34-35;
    • See, e.g., dUKEMINIER ET AL., supra note 59, at 34-35;
  • 130
    • 64949181435 scopus 로고    scopus 로고
    • see also Henry E. Smith, Governing Water: The Semicommons of Fluid Property Rights, 50 aRIZ. L. REV. 445, 455 (2008) (noting that in many states, prior appropriation has acquired a regulatory overlay).
    • see also Henry E. Smith, Governing Water: The Semicommons of Fluid Property Rights, 50 aRIZ. L. REV. 445, 455 (2008) (noting that "in many states, prior appropriation has acquired a regulatory overlay").
  • 131
    • 4344580782 scopus 로고    scopus 로고
    • Beneficial Use, Waste, and Forfeiture: The Inefficient Search for Efficiency in Western Water Use, 28
    • See, e.g
    • See, e.g., Janet C. Neuman, Beneficial Use, Waste, and Forfeiture: The Inefficient Search for Efficiency in Western Water Use, 28 ENVTL. L. 919 (1998)
    • (1998) ENVTL. L , vol.919
    • Neuman, J.C.1
  • 132
    • 64949145069 scopus 로고    scopus 로고
    • Sandra Zellmer, The Anti-Speculation Doctrine and Its Implications for Collaborative Water Management, 8 NEV. L.J. 994 (2008).
    • Sandra Zellmer, The Anti-Speculation Doctrine and Its Implications for Collaborative Water Management, 8 NEV. L.J. 994 (2008).
  • 133
    • 64949201535 scopus 로고    scopus 로고
    • See Neuman, supra note 66, at 964; Zellmer, supra note 66, at 1004-05. Speculation may be expressly ruled out.
    • See Neuman, supra note 66, at 964; Zellmer, supra note 66, at 1004-05. Speculation may be expressly ruled out.
  • 134
    • 84868914226 scopus 로고    scopus 로고
    • See, e.g., COLO. REV. STAT. § 37-92-103(3)(a) (2008) (defining appropriation to exclude the speculative sale or transfer of the appropriative rights to other parties). There are a number of exceptions to this rule.
    • See, e.g., COLO. REV. STAT. § 37-92-103(3)(a) (2008) (defining "appropriation" to exclude "the speculative sale or transfer of the appropriative rights" to other parties). There are a number of exceptions to this rule.
  • 135
    • 77649310330 scopus 로고    scopus 로고
    • See note 66, at, For example, states and local governments can hold water for future use
    • See Zellmer, supra note 66, at 1012-22. For example, states and local governments can hold water for future use.
    • supra , pp. 1012-1022
    • Zellmer1
  • 136
    • 64949136764 scopus 로고    scopus 로고
    • See Neuman, supra note 66, at 968; Zellmer, supra note 66, at 1013-16.
    • See Neuman, supra note 66, at 968; Zellmer, supra note 66, at 1013-16.
  • 137
    • 64949083305 scopus 로고    scopus 로고
    • See, e.g., Lewinsohn-Zamir, supra note 22, at 655-56; John C. Peck & Constance Crittenden Owen, Loss of Kansas Water Rights for Non-Use, 43 U. KAN. L. REV. 801 (1995)
    • See, e.g., Lewinsohn-Zamir, supra note 22, at 655-56; John C. Peck & Constance Crittenden Owen, Loss of Kansas Water Rights for Non-Use, 43 U. KAN. L. REV. 801 (1995)
  • 138
    • 64949164483 scopus 로고    scopus 로고
    • Smith, supra note 65, at 468; Zellmer, supra note 66, at 1005. For a discussion of the distinction between abandonment and forfeiture, see Peck & Owen, supra, at 820.
    • Smith, supra note 65, at 468; Zellmer, supra note 66, at 1005. For a discussion of the distinction between abandonment and forfeiture, see Peck & Owen, supra, at 820.
  • 139
    • 64949183717 scopus 로고    scopus 로고
    • Zellmer, supra note 66, at 1012
    • Zellmer, supra note 66, at 1012.
  • 140
    • 64949170578 scopus 로고    scopus 로고
    • See, e.g., id. at 1007-08.
    • See, e.g., id. at 1007-08.
  • 141
    • 64949116363 scopus 로고    scopus 로고
    • See YORAM BARZEL, ECONOMIC ANALYSIS OF PROPERTY RIGHTS 119-21 (2d ed. 1997)
    • See YORAM BARZEL, ECONOMIC ANALYSIS OF PROPERTY RIGHTS 119-21 (2d ed. 1997)
  • 142
    • 64949137450 scopus 로고    scopus 로고
    • Lueck & Miceli, supra note 27, at 246-47
    • Lueck & Miceli, supra note 27, at 246-47.
  • 143
    • 64949136892 scopus 로고    scopus 로고
    • See, e.g., Epstein, supra note 2, at 979-82; Zellmer, supra note 66, at 1009.
    • See, e.g., Epstein, supra note 2, at 979-82; Zellmer, supra note 66, at 1009.
  • 144
    • 64949130581 scopus 로고    scopus 로고
    • See, e.g., Epstein, supra note 2, at 979-82; Smith, supra note 65, at 473.
    • See, e.g., Epstein, supra note 2, at 979-82; Smith, supra note 65, at 473.
  • 145
    • 34547819674 scopus 로고    scopus 로고
    • See, note 59, at, discussing the historical and modern treatment of groundwater
    • See DUKEMINIER ET AL., supra note 59, at 34 (discussing the historical and modern treatment of groundwater).
    • supra , pp. 34
    • ET AL, D.1
  • 146
    • 64949088724 scopus 로고    scopus 로고
    • Bottling Plan Pushes Groundwater to Center Stage in Vermont
    • Aug. 21, at
    • Felicity Barringer, Bottling Plan Pushes Groundwater to Center Stage in Vermont, N.Y. TIMES, Aug. 21,2008, at A14.
    • (2008) N.Y. TIMES
    • Barringer, F.1
  • 147
    • 64949141307 scopus 로고    scopus 로고
    • Congress Passes Great Lakes Protection Bill
    • Sept. 24, at
    • Susan Saulny, Congress Passes Great Lakes Protection Bill, N.Y. TIMES, Sept. 24, 2008, at A17.
    • (2008) N.Y. TIMES
    • Saulny, S.1
  • 148
    • 64949176390 scopus 로고    scopus 로고
    • Bottled Water at Issue in Great Lakes
    • discussing controversy over the compact's exception for water in containers with capacities of less than 5.7 gallons, See, Sept. 29, at
    • See Kari Lydersen, Bottled Water at Issue in Great Lakes, WASH. POST, Sept. 29, 2008, at A7 (discussing controversy over the compact's exception for water in containers with capacities of less than 5.7 gallons).
    • (2008) WASH. POST
    • Lydersen, K.1
  • 149
    • 64949168997 scopus 로고    scopus 로고
    • See, e.g, FEINBERG, supra note 64, at 231-38;
    • See, e.g., FEINBERG, supra note 64, at 231-38;
  • 150
  • 151
    • 64949185176 scopus 로고    scopus 로고
    • See Ron Lieber & Susan Warren, Southwest Makes It Harder To Jump the Line, WALL ST. J., June 7, 2006, at Di.
    • See Ron Lieber & Susan Warren, Southwest Makes It Harder To Jump the Line, WALL ST. J., June 7, 2006, at Di.
  • 152
    • 64949107946 scopus 로고    scopus 로고
    • Your Table Is Ready-For a Price
    • discussing the online service tablexchange.com, which sells reservations to overbooked restaurants, See, e.g, Aug. 8, at
    • See, e.g., Monica Eng & Christopher Borrelli, Your Table Is Ready-For a Price, CHI. TRIB., Aug. 8, 2008, at 1 (discussing the online service tablexchange.com, which sells reservations to overbooked restaurants).
    • (2008) CHI. TRIB , pp. 1
    • Eng, M.1    Borrelli, C.2
  • 153
    • 64949199453 scopus 로고    scopus 로고
    • But see Pascal Courty, Some Economics of Ticket Resale, J. ECON. PERSP., Spring 2003, at 85, 85 (questioning the hypothesis that underpricing is the fundamental cause of secondary ticket markets).
    • But see Pascal Courty, Some Economics of Ticket Resale, J. ECON. PERSP., Spring 2003, at 85, 85 (questioning the hypothesis that underpricing is "the fundamental cause of secondary ticket markets").
  • 154
    • 64949123776 scopus 로고    scopus 로고
    • It is possible to quibble with this point. Consider a case that is a bit harder to classify-the practice of law students attempting to buy their way into oversubscribed classes
    • It is possible to quibble with this point. Consider a case that is a bit harder to classify-the practice of law students attempting to buy their way into oversubscribed classes.
  • 155
    • 64949124991 scopus 로고    scopus 로고
    • See Martha Neil, NYU Students Seek Coveted Law School Classes, Will Pay Cash, A.B.A. J., July 28, 2008, http://www.abajournal.com/weekly/ nyu-students-seek-coveted-law-school-classes-will-pay-cash. Here, the underlying good (a legal education) is the subject of a market transaction, albeit one in which only a limited number of people are invited to engage. Once one's tuition is paid and one becomes a member of a law school community, however, access to different portions of the educational experience may be rationed on nonmonetary bases for reasons intrinsic to the meaning of the community and its collective endeavor.
    • See Martha Neil, NYU Students Seek Coveted Law School Classes, Will Pay Cash, A.B.A. J., July 28, 2008, http://www.abajournal.com/weekly/ nyu-students-seek-coveted-law-school-classes-will-pay-cash. Here, the underlying good (a legal education) is the subject of a market transaction, albeit one in which only a limited number of people are invited to engage. Once one's tuition is paid and one becomes a member of a law school community, however, access to different portions of the educational experience may be rationed on nonmonetary bases for reasons intrinsic to the meaning of the community and its collective endeavor.
  • 156
    • 64949198177 scopus 로고    scopus 로고
    • See Levmore, supra note 7, at 120-21
    • See Levmore, supra note 7, at 120-21.
  • 157
    • 64949189003 scopus 로고    scopus 로고
    • See, e.g., DONALD N. McCLOSKEY, THE APPLIED THEORY OF PRICE 216-24 (1982).
    • See, e.g., DONALD N. McCLOSKEY, THE APPLIED THEORY OF PRICE 216-24 (1982).
  • 158
    • 64949133284 scopus 로고    scopus 로고
    • at 216 (citing CHARLES P
    • See, e.g, AND
    • See, e.g., id. at 216 (citing CHARLES P. KlNDLEBERGER, MANIAS, PANICS, AND
    • KlNDLEBERGER, MANIAS, PANICS
  • 159
    • 64949142415 scopus 로고    scopus 로고
    • RASHES: A HISTORY OF FINANCIAL CRISES 38-39 (3d ed. 1996)
    • RASHES: A HISTORY OF FINANCIAL CRISES 38-39 (3d ed. 1996)
  • 160
    • 0347512704 scopus 로고    scopus 로고
    • Lynn A. Stout, Why the Law Hates Speculators: Regulation and Private Ordering in the Market for OTC Derivatives, 48 DUKE L.J. 701, 712-34 (1999) (discussing legal limits on speculation and some possible rationales for them).
    • Lynn A. Stout, Why the Law Hates Speculators: Regulation and Private Ordering in the Market for OTC Derivatives, 48 DUKE L.J. 701, 712-34 (1999) (discussing legal limits on speculation and some possible rationales for them).
  • 161
    • 64949149774 scopus 로고    scopus 로고
    • In financial markets, speculative activity is credited with helping to generate more information and liquidity, among other benefits. For a discussion of these points in the context of the SEC's recent ban on short-selling, see, for example, Menachem Brenner & Marti G. Subrah- manyam, End the Ban on Short-Selling, FORBES.COM, Oct. 1, 2008, http://www.forbes.com/2oo8/o9/3o/short-selling-ban-oped-cx-mb-iooibrenner.html. The ban has since expired. See Kara Scannell & Craig Karmin, Short-Sale Ban Ends to Poor Reviews, WALL ST. J., Oct. 9, 2008, at C3. For discussion of the benefits associated with land speculation, see, for example, Epstein, supra note 2, at 989; and Lewinsohn-Zamir, supra note 22, at 694.
    • In financial markets, speculative activity is credited with helping to generate more information and liquidity, among other benefits. For a discussion of these points in the context of the SEC's recent ban on short-selling, see, for example, Menachem Brenner & Marti G. Subrah- manyam, End the Ban on Short-Selling, FORBES.COM, Oct. 1, 2008, http://www.forbes.com/2oo8/o9/3o/short-selling-ban-oped-cx-mb-iooibrenner.html. The ban has since expired. See Kara Scannell & Craig Karmin, Short-Sale Ban Ends to Poor Reviews, WALL ST. J., Oct. 9, 2008, at C3. For discussion of the benefits associated with land speculation, see, for example, Epstein, supra note 2, at 989; and Lewinsohn-Zamir, supra note 22, at 694.
  • 162
    • 64949199497 scopus 로고    scopus 로고
    • Daniel Kahneman, Jack L. Knetsch & Richard Thaler, Fairness As a Constraint on Profit Seeking: Entitlements in the Market, 76 AM. ECON. REV. 728, 729 (1986), cited and discussed in MICHAEL J. TREBILCOCK, THE LIMITS OF FREEDOM OF CONTRACT 89-90 (1993).
    • Daniel Kahneman, Jack L. Knetsch & Richard Thaler, Fairness As a Constraint on Profit Seeking: Entitlements in the Market, 76 AM. ECON. REV. 728, 729 (1986), cited and discussed in MICHAEL J. TREBILCOCK, THE LIMITS OF FREEDOM OF CONTRACT 89-90 (1993).
  • 163
    • 64949088080 scopus 로고    scopus 로고
    • Discussion of these points recently resurfaced surrounding preparations for Tropical Storm Fay
    • Discussion of these points recently resurfaced surrounding preparations for Tropical Storm Fay.
  • 164
    • 64949195832 scopus 로고    scopus 로고
    • See, e.g., Posting of Ilya Somin to The Volokh Conspiracy, http://volokh.com/posts/1219175029.shtml (Aug. 19, 2008, 15:43) (quoting Posting of Glen Whitman to Agoraphilia, http://agoraphilia.blogspot.com/2003/09/in- defense-of-gouging.html (Sept. 23, 2008, 15:58)).
    • See, e.g., Posting of Ilya Somin to The Volokh Conspiracy, http://volokh.com/posts/1219175029.shtml (Aug. 19, 2008, 15:43) (quoting Posting of Glen Whitman to Agoraphilia, http://agoraphilia.blogspot.com/2003/09/in- defense-of-gouging.html (Sept. 23, 2008, 15:58)).
  • 165
    • 64949188436 scopus 로고    scopus 로고
    • the price mechanism is being invoked to ration goods in temporary short-supply among an excess of demanders
    • See note 86, at, noting that in this scenario
    • See TREBILCOCK, supra note 86, at 89 (noting that in this scenario, "the price mechanism is being invoked to ration goods in temporary short-supply among an excess of demanders").
    • supra , pp. 89
    • TREBILCOCK1
  • 166
    • 64949104171 scopus 로고    scopus 로고
    • Kahneman, Knetsch & Thaler, supra note 86, at 729-31 (discussing the role of reference transactions in fairness evaluations).
    • Kahneman, Knetsch & Thaler, supra note 86, at 729-31 (discussing the role of "reference transactions" in fairness evaluations).
  • 167
    • 64949167853 scopus 로고    scopus 로고
    • See id. at 731-32.
    • See id. at 731-32.
  • 168
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    • See, e.g., FEINBERG, supra note 64, at 232 distinguishing ticket scalping from charging a high price for water to a person dying of thirst
    • See, e.g., FEINBERG, supra note 64, at 232 (distinguishing ticket scalping from charging a high price for water to a person dying of thirst
  • 169
    • 64949114570 scopus 로고    scopus 로고
    • note 86, at, distinguishing situations based on whether they pose a threat to life
    • TREBILCOCK, supra note 86, at 84-101 (distinguishing situations based on whether they pose a threat to life).
    • supra , pp. 84-101
    • TREBILCOCK1
  • 170
    • 64949196991 scopus 로고    scopus 로고
    • I thank Daria Roithmayr for comments on this point. For an extended examination of the distributive implications of domain name policy, see generally Chander, supra note 47
    • I thank Daria Roithmayr for comments on this point. For an extended examination of the distributive implications of domain name policy, see generally Chander, supra note 47.
  • 171
    • 64949151025 scopus 로고    scopus 로고
    • Alternatively, the price increase for the shovel might be the loss in the story. If prices had been at storm levels all along (even with very frequent sales), the reaction would likely be much different.
    • Alternatively, the price increase for the shovel might be the loss in the story. If prices had been at "storm levels" all along (even with very frequent "sales"), the reaction would likely be much different.
  • 172
    • 84868935811 scopus 로고    scopus 로고
    • See Kahneman, Knetsch & Thaler, supra note 86, at 732 (finding that 71% of survey respondents viewed as unfair a car dealer's $200 price increase in response to the shortage of a popular car model, while only 42 % thought it unfair for a dealer who had previously offered a $200 discount for the car to revert to the car's list price in these circumstances).
    • See Kahneman, Knetsch & Thaler, supra note 86, at 732 (finding that 71% of survey respondents viewed as unfair a car dealer's $200 price increase in response to the shortage of a popular car model, while only 42 % thought it unfair for a dealer who had previously offered a $200 "discount" for the car to revert to the car's list price in these circumstances).
  • 173
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    • But see Eric Kades, Windfalls, 108 YALE L.J. 1489, 1505-10 (1999) (arguing that what appears to be a windfall is often the result of planning and effort). In these cases, the initial amount paid may serve as a reference transaction that influences the evaluation of the resale's fairness.
    • But see Eric Kades, Windfalls, 108 YALE L.J. 1489, 1505-10 (1999) (arguing that what appears to be a "windfall" is often the result of planning and effort). In these cases, the initial amount paid may serve as a "reference transaction" that influences the evaluation of the resale's fairness.
  • 174
    • 64949115206 scopus 로고    scopus 로고
    • See Kahneman, Knetsch & Thaler, supra note 86, at 729-31
    • See Kahneman, Knetsch & Thaler, supra note 86, at 729-31.
  • 175
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    • See Merrill, supra note 43, at 86
    • See Merrill, supra note 43, at 86.
  • 176
    • 64949096583 scopus 로고    scopus 로고
    • Monsanto Lecture: Protecting Property with Puts, 32
    • describing bilateral monopoly bargaining problems, See, e.g
    • See, e.g., Ian Ayres, Monsanto Lecture: Protecting Property with Puts, 32 VAL. U. L. REV. 793, 802-04 (1998) (describing bilateral monopoly bargaining problems).
    • (1998) VAL. U. L. REV , vol.793 , pp. 802-804
    • Ayres, I.1
  • 177
    • 0001290518 scopus 로고
    • Resolving Nuisance Disputes: The Simple Economics of Injunctive and Damage Remedies, 32
    • See, e.g
    • See, e.g., A. Mitchell Polinsky, Resolving Nuisance Disputes: The Simple Economics of Injunctive and Damage Remedies, 32 STAN. L. REV. 1075, 1077-78 (1980).
    • (1980) STAN. L. REV , vol.1075 , pp. 1077-1078
    • Mitchell Polinsky, A.1
  • 178
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    • See, e.g., Calabresi & Melamed, supra note i, at 1106-07; Richard A. Epstein, A Clear View of The Cathedral; The Dominance of Property Rules, 106 YALE L.J. 2091, 2093-94 ('997).
    • See, e.g., Calabresi & Melamed, supra note i, at 1106-07; Richard A. Epstein, A Clear View of The Cathedral; The Dominance of Property Rules, 106 YALE L.J. 2091, 2093-94 ('997).
  • 179
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    • Cf. Coase, supra note 62, at 671 (It is obviously undesirable that resources should be devoted to bargaining which produces a situation no better than it was previously.).
    • Cf. Coase, supra note 62, at 671 ("It is obviously undesirable that resources should be devoted to bargaining which produces a situation no better than it was previously.").
  • 180
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    • See, e.g., NOZICK, supra note 62, at 84-85 contrasting a case in which a neighbor has a legitimate desire to build a monstrosity, where paying him not to do so will be a productive exchange, with the unproductive exchange that would follow if the neighbor came up with the building plan solely in order to sell you his abstention from it
    • See, e.g., NOZICK, supra note 62, at 84-85 (contrasting a case in which a neighbor has a legitimate desire to build a "monstrosity," where paying him not to do so "will be a productive exchange," with the unproductive exchange that would follow if the neighbor came up with the building plan "solely in order to sell you his abstention from it"
  • 181
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    • Blackmail: An Economic Analysis of the Law, 141
    • No rational economic planner would tolerate the existence of an industry dedicated to digging up dirt, at real resource cost, and then reburying it
    • Douglas H. Ginsburg & Paul Shechtman, Blackmail: An Economic
    • (1993) U. PA. L. REV. 1849 , pp. 1860
    • Ginsburg, D.H.1    Shechtman, P.2
  • 182
    • 64949091560 scopus 로고    scopus 로고
    • Lewinsohn-Zamir, supra note 22, at 694 (distinguishing cybersquatting from land speculation on the grounds that the former is a socially wasteful activity). But see Joseph Isenbergh, Blackmail from A to C, 141 U. PA. L. REV. 1905, 1919-21 (1993) (questioning whether the bargaining in blackmail situations can fairly be classified as unproductive, given the realignment of property rights it potentially produces).
    • Lewinsohn-Zamir, supra note 22, at 694 (distinguishing cybersquatting from land speculation on the grounds that the former "is a socially wasteful activity"). But see Joseph Isenbergh, Blackmail from A to C, 141 U. PA. L. REV. 1905, 1919-21 (1993) (questioning whether the bargaining in blackmail situations can fairly be classified as unproductive, given the realignment of property rights it potentially produces).
  • 183
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    • Blackmailing for Mutual Good, 141
    • Russell Hardin, Blackmailing for Mutual Good, 141 U. PA. L. REV. 1787, 1806 (1993).
    • (1993) U. PA. L. REV , vol.1787 , pp. 1806
    • Hardin, R.1
  • 184
    • 64949180324 scopus 로고    scopus 로고
    • See infra pp. 1460-61 (discussing market-price blackmail). In the case of incriminating information, it might be argued that the intermediation of blackmailers serves an additional purpose-private deterrence-although countervailing factors may make blackmail socially costly on net.
    • See infra pp. 1460-61 (discussing "market-price" blackmail). In the case of incriminating information, it might be argued that the intermediation of blackmailers serves an additional purpose-private deterrence-although countervailing factors may make blackmail socially costly on net.
  • 185
    • 64949147063 scopus 로고    scopus 로고
    • Blackmail As Private Justice, 141
    • See
    • See Jennifer Gerarda Brown, Blackmail As Private Justice, 141 U. PA. L. REV. 1935 (i993).
    • U. PA. L. REV , vol.1935 , Issue.I993
    • Gerarda Brown, J.1
  • 186
    • 46149088097 scopus 로고    scopus 로고
    • The Myth of the
    • For arguments discussing the value added by trolls, see, for example, Patent Troll: An Alternative View of the Function of Patent Dealers in an Idea Economy, 56 EMORY L.J. 189 2006
    • For arguments discussing the value added by trolls, see, for example, James F. McDonough III, Comment, The Myth of the Patent Troll: An Alternative View of the Function of Patent Dealers in an Idea Economy, 56 EMORY L.J. 189 (2006).
    • James, F.1    McDonough III, C.2
  • 187
    • 64949111904 scopus 로고    scopus 로고
    • See infra section III.C.2.
    • See infra section III.C.2.
  • 188
    • 64949153917 scopus 로고    scopus 로고
    • We might think of an injunction as an entitlement that might be intentionally acquired for leverage purposes. But if strong exclusion rights are part of what the landowner holds, the injunction arguably involves only the enforcement of an existing entitlement rather than the acquisition of a new one
    • We might think of an injunction as an entitlement that might be intentionally acquired for leverage purposes. But if strong exclusion rights are part of what the landowner holds, the injunction arguably involves only the enforcement of an existing entitlement rather than the acquisition of a new one.
  • 189
    • 64949160156 scopus 로고    scopus 로고
    • See Isenbergh, supra note 100, at 1919-23; id. at 1920 (observing that land use bargains that appear to leave things unchanged may actually result in a useful realignment of property rights beneath the surface).
    • See Isenbergh, supra note 100, at 1919-23; id. at 1920 (observing that land use bargains that appear to leave things unchanged may actually result in a useful realignment of property rights "beneath the surface").
  • 190
    • 64949128075 scopus 로고    scopus 로고
    • See id. at 1920-23.
    • See id. at 1920-23.
  • 191
    • 64949111289 scopus 로고    scopus 로고
    • However, to the extent these new rights allocations are hard to alter, new problems may be presented
    • However, to the extent these new rights allocations are hard to alter, new problems may be presented.
  • 192
    • 17044376328 scopus 로고    scopus 로고
    • See, e.g., Lee Anne Fennell, Contracting Communities, 2004 U. ILL. L. REV. 829, 846- 51.
    • See, e.g., Lee Anne Fennell, Contracting Communities, 2004 U. ILL. L. REV. 829, 846- 51.
  • 193
    • 64949152025 scopus 로고    scopus 로고
    • Scenarios like the one in which a person dying of thirst encounters the only water source within reach would be exceptions
    • Scenarios like the one in which a person dying of thirst encounters the only water source within reach would be exceptions.
  • 194
    • 64949182505 scopus 로고    scopus 로고
    • See JOEL FEINBERG, HARM TO SELF 250 (1986) (discussing this example, posed in Jeffrie G. Murphy, Consent, Coercion, and Hard Choices, 67 VA. L. REV. 79, 88-89 (1981)).
    • See JOEL FEINBERG, HARM TO SELF 250 (1986) (discussing this example, posed in Jeffrie G. Murphy, Consent, Coercion, and Hard Choices, 67 VA. L. REV. 79, 88-89 (1981)).
  • 195
    • 64949145760 scopus 로고
    • Market Power and Secondary-Line Differential Pricing, 71
    • See, e.g
    • See, e.g., Herbert Hovenkamp, Market Power and Secondary-Line Differential Pricing, 71 GEO. L.J. 1157, 1162-64 (1983).
    • (1983) GEO. L.J , vol.1157 , pp. 1162-1164
    • Hovenkamp, H.1
  • 196
    • 64949084021 scopus 로고    scopus 로고
    • For discussion of and sources for these examples, see infra notes 155-158 and accompanying text (ticket queues) and notes 228-229 and accompanying text (homestead settlement).
    • For discussion of and sources for these examples, see infra notes 155-158 and accompanying text (ticket queues) and notes 228-229 and accompanying text (homestead settlement).
  • 197
    • 64949085832 scopus 로고    scopus 로고
    • See infra p. 1431.
    • See infra , pp. 1431
  • 198
    • 84888467546 scopus 로고    scopus 로고
    • notes 125-128 and accompanying text
    • See infra notes 125-128 and accompanying text.
    • See infra
  • 199
    • 64949193992 scopus 로고    scopus 로고
    • Later, I take up the question of when inalienability rules might be preferred
    • Later, I take up the question of when inalienability rules might be preferred.
  • 200
    • 33846467857 scopus 로고    scopus 로고
    • Part III
    • See infra Part III.
    • See infra
  • 201
    • 64949106259 scopus 로고    scopus 로고
    • I thank Susan Rose-Ackerman for comments on this point
    • I thank Susan Rose-Ackerman for comments on this point.
  • 202
    • 64949198957 scopus 로고    scopus 로고
    • See, e.g., Rose-Ackerman, supra note 2, at 931 (Inalienability can be defined as any restriction on the transferability, ownership, or use of an entitlement.).
    • See, e.g., Rose-Ackerman, supra note 2, at 931 ("Inalienability can be defined as any restriction on the transferability, ownership, or use of an entitlement.").
  • 203
    • 64949090904 scopus 로고    scopus 로고
    • These constraints might either be imposed by law or formulated by private entities in a manner that is legally enforceable
    • These constraints might either be imposed by law or formulated by private entities in a manner that is legally enforceable.
  • 204
    • 64949165222 scopus 로고    scopus 로고
    • See Heller, supra note 2, at 1200 distinguishing alienability from marketability in a slightly different manner
    • See Heller, supra note 2, at 1200 (distinguishing alienability from marketability in a slightly different manner
  • 205
    • 64949137537 scopus 로고    scopus 로고
    • See also PAUL GOLDSTEIN, REALPROPERTY 474 (1984) (distinguishing [f]ree alienability, which in his lexicon means that a landowner can in disposing of his lands impose whatever conditions he wishes, for as long as he wishes, from [f]ree marketability, the idea that interests in land should be readily saleable). The distinction tracks one that has been made in property law between restraints on the alienation of a fee simple absolute and restraints on land use that hinder the owner's ability to alienate the property.
    • See also PAUL GOLDSTEIN, REALPROPERTY 474 (1984) (distinguishing "[f]ree alienability," which in his lexicon "means that a landowner can in disposing of his lands impose whatever conditions he wishes, for as long as he wishes," from "[f]ree marketability," the idea "that interests in land should be readily saleable"). The distinction tracks one that has been made in property law between restraints on the alienation of a fee simple absolute and restraints on land use that hinder the owner's ability to alienate the property.
  • 206
    • 64949100869 scopus 로고    scopus 로고
    • See, e.g., Mountain Brow Lodge No. 82, Indep. Order of Odd Fellows v. Toscano, 64 Cal. Rptr. 816, 818-19 (Cal. Ct. App. 1967) (distinguishing restrictions on the alienability of a fee simple, which are generally invalid, from restraints on use, which are often valid).
    • See, e.g., Mountain Brow Lodge No. 82, Indep. Order of Odd Fellows v. Toscano, 64 Cal. Rptr. 816, 818-19 (Cal. Ct. App. 1967) (distinguishing restrictions on the alienability of a fee simple, which are generally invalid, from restraints on use, which are often valid).
  • 207
    • 64949180325 scopus 로고    scopus 로고
    • Requiring the sale of certain minimum bundles corresponds to antifragmentation rules that are often associated with preserving marketability
    • Requiring the sale of certain minimum bundles corresponds to "antifragmentation" rules that are often associated with preserving marketability.
  • 208
    • 64949161282 scopus 로고    scopus 로고
    • See Heller, supra note 2, at 1176-82. The converse requirement that items be sold only separately, rather than built into larger transactions, has been explored in the context of rights and liberties in Westermann, supra note 23, at 18-19 (discussing anti-bundling inalienability rule[s] (internal quotation marks omitted)).
    • See Heller, supra note 2, at 1176-82. The converse requirement that items be sold only separately, rather than built into larger transactions, has been explored in the context of rights and liberties in Westermann, supra note 23, at 18-19 (discussing "anti-bundling inalienability rule[s]" (internal quotation marks omitted)).
  • 209
    • 64949132344 scopus 로고    scopus 로고
    • It is possible to combine these conditions in various ways. For example, the tax code contains some provisions that link the tax due on the realization of a gain to the holding period of the asset
    • It is possible to combine these conditions in various ways. For example, the tax code contains some provisions that link the tax due on the realization of a gain to the holding period of the asset.
  • 210
    • 64949086851 scopus 로고    scopus 로고
    • See, e.g., Stout, supra note 84, at 733-34; Internal Revenue Service, Tax Facts about Capital Gains and Losses, http://www.irs.gov/ newsroom/article/oid=io6799,oo.html (last visited Feb. 8, 2009). This approach effectively prices alienability within different holding periods. I thank Jonathan Nash for this point. Similarly, some affordable housing programs phase in the amount of equity that a departing owner is entitled to receive based on the holding period, again pricing rather than prohibiting alienability.
    • See, e.g., Stout, supra note 84, at 733-34; Internal Revenue Service, Tax Facts about Capital Gains and Losses, http://www.irs.gov/ newsroom/article/oid=io6799,oo.html (last visited Feb. 8, 2009). This approach effectively prices alienability within different holding periods. I thank Jonathan Nash for this point. Similarly, some affordable housing programs phase in the amount of equity that a departing owner is entitled to receive based on the holding period, again pricing rather than prohibiting alienability.
  • 211
    • 44149119816 scopus 로고    scopus 로고
    • Affordable Housing, Land Tenure, and Urban Policy: The Matrix Revealed, 34
    • See, e.g
    • See, e.g., J. Peter Byrne & Michael Diamond, Affordable Housing, Land Tenure, and Urban Policy: The Matrix Revealed, 34 FORDHAM uRB. L.J. 527, 545-47 (2007).
    • (2007) FORDHAM uRB. L.J , vol.527 , pp. 545-547
    • Peter Byrne, J.1    Diamond, M.2
  • 212
    • 64949173973 scopus 로고    scopus 로고
    • See Heller, Anticommons, supra note 18, at 682-84 discussing Quaker Oats's 1955 Big Inch promotional giveaway in which millions of deeds to square inches of land in the Yukon were packaged in cereal boxes
    • See Heller, Anticommons, supra note 18, at 682-84 (discussing Quaker Oats's 1955 "Big Inch" promotional giveaway in which millions of deeds to square inches of land in the Yukon were packaged in cereal boxes
  • 213
    • 64949190435 scopus 로고    scopus 로고
    • see also HELLER, GRIDLOCK, supra note 18, at 6-8 & fig.1.2.
    • see also HELLER, GRIDLOCK, supra note 18, at 6-8 & fig.1.2.
  • 214
    • 64949175874 scopus 로고    scopus 로고
    • For example, suppose certain categories of people are legally disabled from receiving or owning a good
    • For example, suppose certain categories of people are legally disabled from receiving or owning a good.
  • 215
    • 64949169082 scopus 로고    scopus 로고
    • See Rose-Ackerman, supra note 2, at 935-36. The result is a legally mandated thinning of the market which might be classified both as an alienability restriction and as an impediment to marketability. In general, we would expect limits on alienability to reduce marketability. For example, a minimum holding period makes an entitlement harder to transfer both because of the restriction itself (one must wait for the minimum period to elapse before a transfer can be made) and because of the restriction's effect on the desirability of the bundle some prospective buyers will be put off by the holding period, Similarly, taxes on transfers reduce the surplus available for the parties to a transaction and thus make fewer such transactions worthwhile. In some cases, however, alienability limits are put in place in an effort to preserve long-run marketability
    • See Rose-Ackerman, supra note 2, at 935-36. The result is a legally mandated thinning of the market which might be classified both as an alienability restriction and as an impediment to marketability. In general, we would expect limits on alienability to reduce marketability. For example, a minimum holding period makes an entitlement harder to transfer both because of the restriction itself (one must wait for the minimum period to elapse before a transfer can be made) and because of the restriction's effect on the desirability of the bundle (some prospective buyers will be put off by the holding period). Similarly, taxes on transfers reduce the surplus available for the parties to a transaction and thus make fewer such transactions worthwhile. In some cases, however, alienability limits are put in place in an effort to preserve long-run marketability.
  • 216
    • 84888467546 scopus 로고    scopus 로고
    • note 124 and accompanying text
    • See infra note 124 and accompanying text.
    • See infra
  • 217
    • 64949158305 scopus 로고    scopus 로고
    • The impact that both elements have on transfers has led some authors to refer to them both as facets of alienability
    • The impact that both elements have on transfers has led some authors to refer to them both as facets of alienability.
  • 219
    • 0347036769 scopus 로고    scopus 로고
    • See James Salzman & J.B. Ruhl, Currencies and the Commodification of Environmental Law, 53 STAN. L. REV. 607, 637-38 & fig.4 (2000) (distinguishing between, and noting the substitutability of, ex ante narrowing of the currency to be used in environmental trading programs and ex post limits on the trades themselves).
    • See James Salzman & J.B. Ruhl, Currencies and the Commodification of Environmental Law, 53 STAN. L. REV. 607, 637-38 & fig.4 (2000) (distinguishing between, and noting the substitutability of, ex ante narrowing of the "currency" to be used in environmental trading programs and ex post limits on the trades themselves).
  • 220
    • 64949188393 scopus 로고    scopus 로고
    • See, e.g., GOLDSTEIN, supra note 118, at 474 explaining how the exercise of [f]ree alienability might restrict marketability
    • See, e.g., GOLDSTEIN, supra note 118, at 474 (explaining how the exercise of "[f]ree alienability" might restrict marketability
  • 221
    • 64949160162 scopus 로고    scopus 로고
    • Heller, supra note 2, at 1176-82 discussing a number of legal doctrines that might serve the purpose of limiting fragmentation of interests to preserve future marketability
    • Heller, supra note 2, at 1176-82 (discussing a number of legal doctrines that might serve the purpose of limiting fragmentation of interests to preserve future marketability
  • 222
    • 33947542912 scopus 로고
    • Property in Land, 102
    • discussing legal rules that deter destructive decompositions of property interests see also
    • see also Robert C. Ellickson, Property in Land, 102 YALE L.J. 1315, 1374 (1993) (discussing legal rules that "deter destructive decompositions of property interests"
    • (1993) YALE L.J , vol.1315 , pp. 1374
    • Ellickson, R.C.1
  • 223
    • 64949179677 scopus 로고    scopus 로고
    • Frank I. Michelman, Ethics, Economics, and the Law of Property, in NOMOS XXIV: ETHICS, ECONOMICS, AND THE LAW 3, 15-16 (J. Roland Pennock & John W. Chapman eds., 1982) (observing that property law abounds in restrictions on decomposition of titles that may serve efficiency goals).
    • Frank I. Michelman, Ethics, Economics, and the Law of Property, in NOMOS XXIV: ETHICS, ECONOMICS, AND THE LAW 3, 15-16 (J. Roland Pennock & John W. Chapman eds., 1982) (observing that property law "abounds in restrictions on decomposition of titles" that may serve "efficiency goals").
  • 224
    • 64949132619 scopus 로고    scopus 로고
    • See, e.g., Epstein, supra note 2, at 978-88; Lueck, supra note 17, at 318-19; Rose-Ackerman, supra note 2, at 942-43.
    • See, e.g., Epstein, supra note 2, at 978-88; Lueck, supra note 17, at 318-19; Rose-Ackerman, supra note 2, at 942-43.
  • 225
    • 64949105679 scopus 로고    scopus 로고
    • See, e.g., Rose-Ackerman, supra note 2, at 944-45 (discussing and critiquing Andrus v. Allard, 444 U.S. 51 (1979), in which such a ban on sales was upheld against a takings challenge
    • See, e.g., Rose-Ackerman, supra note 2, at 944-45 (discussing and critiquing Andrus v. Allard, 444 U.S. 51 (1979), in which such a ban on sales was upheld against a takings challenge
  • 227
    • 64949102122 scopus 로고    scopus 로고
    • note 10, at, noting the role of the alienability limits contained in the Endangered Species Act
    • Hsu, supra note 10, at 870 (noting the role of the alienability limits contained in the Endangered Species Act).
    • supra , pp. 870
    • Hsu1
  • 228
    • 64949090240 scopus 로고    scopus 로고
    • See Harold Demsetz, Toward a Theory of Property Rights, 57 AM. ECON. REV. (PAPERS & PROC.) 347, 351-52 (1967) stating that the development of the fur trade increased both the value of furs and the intensity of hunting
    • See Harold Demsetz, Toward a Theory of Property Rights, 57 AM. ECON. REV. (PAPERS & PROC.) 347, 351-52 (1967) (stating that the development of the fur trade increased both the value of furs and the intensity of hunting
  • 229
    • 64949136889 scopus 로고    scopus 로고
    • Rose-Ackerman, supra note 2, at 943 (explaining that bans on the sale of fish and game facilitate conservation by discouraging the entry of profit seeking hunters or fishermen).
    • Rose-Ackerman, supra note 2, at 943 (explaining that bans on the sale of fish and game "facilitate conservation by discouraging the entry of profit seeking hunters or fishermen").
  • 230
    • 64949083394 scopus 로고    scopus 로고
    • Under some circumstances, however, an alienability ban could increase the number of people who engage in direct acquisition of the resource. For example, if the costs of becoming an eagle hunter were low enough taking into account the price of equipment, the cost of relocating to an eagle habitat, and the opportunity cost of learning how to hunt eagles, people who are unable to buy eagles might resort to taking their own. Thus, inalienability would seem to work best as a backstop or substitute for acquisition limits where external factors like location or skill requirements make acquisition prohibitively costly for most people
    • Under some circumstances, however, an alienability ban could increase the number of people who engage in direct acquisition of the resource. For example, if the costs of becoming an eagle hunter were low enough (taking into account the price of equipment, the cost of relocating to an eagle habitat, and the opportunity cost of learning how to hunt eagles), people who are unable to buy eagles might resort to taking their own. Thus, inalienability would seem to work best as a backstop or substitute for acquisition limits where external factors like location or skill requirements make acquisition prohibitively costly for most people.
  • 231
    • 64949143001 scopus 로고    scopus 로고
    • See Rose-Ackerman, supra note 2, at 943 (discussing how alienability limits can be of help when the state wishes to preserve a group's way of life and giving examples in which native Alaskans are given broader hunting and fishing rights than the general public, subject to restrictions on sales).
    • See Rose-Ackerman, supra note 2, at 943 (discussing how alienability limits can be of help "when the state wishes to preserve a group's way of life" and giving examples in which native Alaskans are given broader hunting and fishing rights than the general public, subject to restrictions on sales).
  • 232
    • 84868919555 scopus 로고    scopus 로고
    • § 668a 2006
    • 16 U.S.C. § 668a (2006
    • 16 U.S.C
  • 233
    • 84868923050 scopus 로고    scopus 로고
    • C.F.R. § 22.22 2007
    • C.F.R. § 22.22 (2007
  • 234
    • 64949144304 scopus 로고    scopus 로고
    • see United States v. Friday, 525 F.3d 938 (10th Cir. 2008) (discussing these provisions).
    • see United States v. Friday, 525 F.3d 938 (10th Cir. 2008) (discussing these provisions).
  • 235
    • 64949108561 scopus 로고    scopus 로고
    • Commons scholars typically distinguish open-access resources from limited-access commons that are closed to all but specified commoners
    • Commons scholars typically distinguish open-access resources from limited-access commons that are closed to all but specified commoners.
  • 236
    • 84965566973 scopus 로고    scopus 로고
    • See, e.g., ELINOR OSTROM, GOVERNING THE COMMONS 48 (1990). For discussions of alienability in the context of limited-access commons, see, for example, Margaret A. McKean, Success on the Commons: A Comparative Examination of Institutions for Common Property Resource Management, 4 J. THEORETICAL POL. 247, 261-62 (1992)
    • See, e.g., ELINOR OSTROM, GOVERNING THE COMMONS 48 (1990). For discussions of alienability in the context of limited-access commons, see, for example, Margaret A. McKean, Success on the Commons: A Comparative Examination of Institutions for Common Property Resource Management, 4 J. THEORETICAL POL. 247, 261-62 (1992)
  • 237
    • 0011688438 scopus 로고    scopus 로고
    • and Hanoch Dagan & Michael A. Heller, The Liberal Commons, no YALE L.J. 549, 566 (2001).
    • and Hanoch Dagan & Michael A. Heller, The Liberal Commons, no YALE L.J. 549, 566 (2001).
  • 238
    • 64949112619 scopus 로고    scopus 로고
    • See OSTROM, supra note 131, at 48;
    • See OSTROM, supra note 131, at 48;
  • 239
    • 64949102152 scopus 로고    scopus 로고
    • see also Elinor Ostrom, Design Principles of Robust Property-Rights Institutions: What Have We Learned?, in PROPERTY RIGHTS AND lAND POLICIES (Gregory K. Ingram & Yu-Hung Hong eds., forthcoming 2009) (manuscript at 7), available at http://ssrn.com/abstractsi304708.
    • see also Elinor Ostrom, Design Principles of Robust Property-Rights Institutions: What Have We Learned?, in PROPERTY RIGHTS AND lAND POLICIES (Gregory K. Ingram & Yu-Hung Hong eds., forthcoming 2009) (manuscript at 7), available at http://ssrn.com/abstractsi304708.
  • 240
    • 64949198581 scopus 로고    scopus 로고
    • This assumes either that fish are used only in customary ways, such as for bait or food, or that use restrictions operate in conjunction with alienability limits. Otherwise, the development of new uses for the resource could cause demand to rise unexpectedly beyond the usual self- enforcing caps associated with satiation. Cf. Smith, supra note 65, at 473 (explaining) that ripari- anism works as a rough proxy for quantity but noting that some systems add use restrictions that prioritize natural wants over artificial wants
    • This assumes either that fish are used only in customary ways, such as for bait or food, or that use restrictions operate in conjunction with alienability limits. Otherwise, the development of new uses for the resource could cause demand to rise unexpectedly beyond the usual self- enforcing caps associated with satiation. Cf. Smith, supra note 65, at 473 (explaining) that ripari- anism works as "a rough proxy for quantity" but noting that some systems add use restrictions that prioritize "natural wants" over "artificial wants").
  • 241
    • 64949171326 scopus 로고    scopus 로고
    • Epstein, supra note 2, at 979-82
    • Epstein, supra note 2, at 979-82.
  • 242
    • 0000296056 scopus 로고    scopus 로고
    • The Assurance Game features a payoff structure in which each party does best (both) individually and jointly) by cooperating, provided the other party does so as well. See Daphna Lewinsohn-Zamir, Essay, Consumer Preferences, Citizen Preferences, and the Provision of Public Goods, 108 YALE L.J. 377, 392 nn.39-40 (1998) and sources cited therein describing the Assurance Game and noting variations of it
    • The Assurance Game features a payoff structure in which each party does best (both) individually and jointly) by cooperating, provided the other party does so as well. See Daphna Lewinsohn-Zamir, Essay, Consumer Preferences, Citizen Preferences, and the Provision of Public Goods, 108 YALE L.J. 377, 392 nn.39-40 (1998) and sources cited therein (describing the Assurance Game and noting variations of it
  • 243
    • 84960693158 scopus 로고
    • Isolation, Assurance and the Social Rate of Discount, 81
    • presenting the assurance problem
    • Amartya K. Sen, Isolation, Assurance and the Social Rate of Discount, 81 Q.J. ECON. 112, 114-15 (1967) (presenting the "assurance problem").
    • (1967) Q.J. ECON , vol.112 , pp. 114-115
    • Sen, A.K.1
  • 244
    • 64949147108 scopus 로고    scopus 로고
    • Cf. Smith, supra note 65, at 473 (discussing the use of rough proxfies] in the context of water rights).
    • Cf. Smith, supra note 65, at 473 (discussing the use of "rough proxfies]" in the context of water rights).
  • 245
    • 64949188435 scopus 로고    scopus 로고
    • See Charlotte Hess & Elinor Ostrom, Ideas, Artifacts, and Facilities: Information As a Common-Pool Resource, LAW & CONTEMP. PROBS., Winter/Spring 2003, at in, 121 distinguishing a resource system from resource units
    • See Charlotte Hess & Elinor Ostrom, Ideas, Artifacts, and Facilities: Information As a Common-Pool Resource, LAW & CONTEMP. PROBS., Winter/Spring 2003, at in, 121 (distinguishing a "resource system" from "resource units"
  • 246
    • 64949143040 scopus 로고    scopus 로고
    • Dean Lueck, First Possession As the Basis of Property, in PROPERTY RIGHTS: COOPERATION, CONFLICT, AND LAW 200, 202 (Terry L. Anderson & Fred S. McChesney eds., 2003) (distinguishing resource stocks from flows).
    • Dean Lueck, First Possession As the Basis of Property, in PROPERTY RIGHTS: COOPERATION, CONFLICT, AND LAW 200, 202 (Terry L. Anderson & Fred S. McChesney eds., 2003) (distinguishing resource "stocks" from "flows").
  • 247
    • 64949138232 scopus 로고    scopus 로고
    • If the original members of the limited-access commons won their slots by some means other than a free market allocation, and if potential members are heterogeneous in their capacity to demand the resource, then making the slots alienable might introduce super-demanders who would consume the resource at much higher levels than did the departing members they are replacing. Alienability would not introduce a selection effect if the original allocation already drew in super-demanders or if the resource is of a type for which demand does not vary widely among individuals or households
    • If the original members of the limited-access commons won their slots by some means other than a free market allocation, and if potential members are heterogeneous in their capacity to demand the resource, then making the slots alienable might introduce "super-demanders" who would consume the resource at much higher levels than did the departing members they are replacing. Alienability would not introduce a selection effect if the original allocation already drew in super-demanders or if the resource is of a type for which demand does not vary widely among individuals or households.
  • 248
    • 64949163963 scopus 로고    scopus 로고
    • See, e.g., Dagan & Heller, supra note 131, at 566; McKean, supra note 131, at 261-62.
    • See, e.g., Dagan & Heller, supra note 131, at 566; McKean, supra note 131, at 261-62.
  • 249
    • 64949095395 scopus 로고    scopus 로고
    • See, e.g., Dagan & Heller, supra note 131, at 574-77. Limiting those to whom membership slots may be alienated might be similarly motivated.
    • See, e.g., Dagan & Heller, supra note 131, at 574-77. Limiting those to whom membership slots may be alienated might be similarly motivated.
  • 250
    • 33746896197 scopus 로고    scopus 로고
    • See Lior Jacob Strahilevitz, Information Asymmetries and the Rights To Exclude, 104 MICH. L. REV. 1835, 1894-97 (2006) (discussing Taormina Theosophical Community v. Silver, 190 Cal. Rptr. 38 (Ct. App. 1983), which involved covenants restricting ownership within a residential community to Theosophical Society members aged 50 and over).
    • See Lior Jacob Strahilevitz, Information Asymmetries and the Rights To Exclude, 104 MICH. L. REV. 1835, 1894-97 (2006) (discussing Taormina Theosophical Community v. Silver, 190 Cal. Rptr. 38 (Ct. App. 1983), which involved covenants restricting ownership within a residential community to Theosophical Society members aged 50 and over).
  • 251
    • 0042170038 scopus 로고    scopus 로고
    • See Saul Levmore, Two Stories About the Evolution of Property Rights, 31 J. LEGAL STUD. S421, S436 (2002) (observing that at some point restrictions on use function as substitutes for closed access).
    • See Saul Levmore, Two Stories About the Evolution of Property Rights, 31 J. LEGAL STUD. S421, S436 (2002) (observing that "at some point restrictions on use function as substitutes for closed access").
  • 252
    • 64949112583 scopus 로고    scopus 로고
    • See, e.g., OSTROM, supra note 131, at 12-13; Ellickson, supra note 124, at 1327-30.
    • See, e.g., OSTROM, supra note 131, at 12-13; Ellickson, supra note 124, at 1327-30.
  • 253
    • 64949094531 scopus 로고    scopus 로고
    • See, e.g., OSTROM, supra note 131, at 13; Smith, supra note 65, at 448 & n.io.
    • See, e.g., OSTROM, supra note 131, at 13; Smith, supra note 65, at 448 & n.io.
  • 255
    • 64949117838 scopus 로고    scopus 로고
    • Id
    • Id.
  • 256
    • 64949201621 scopus 로고    scopus 로고
    • Id
    • Id.
  • 257
    • 64949163142 scopus 로고    scopus 로고
    • It is difficult to say much about an example like Poach Pond without more information about the other rights (and their enforcement levels) that form the backdrop against which fish may be taken. For example, if a fisher could quickly put the fish in her (privately owned) basket and clutch it to her person, the lack of property rights in the fish itself might be of little moment-some other right of the individual would be violated in wresting the fish away
    • It is difficult to say much about an example like Poach Pond without more information about the other rights (and their enforcement levels) that form the backdrop against which fish may be taken. For example, if a fisher could quickly put the fish in her (privately owned) basket and clutch it to her person, the lack of property rights in the fish itself might be of little moment-some other right of the individual would be violated in wresting the fish away.
  • 258
    • 64949100260 scopus 로고    scopus 로고
    • See, e.g., Matthew H. Kramer, Rights Without Trimmings, in A DEBATE OVER RIGHTS: PHILOSOPHICAL ENQUIRIES 7, 11-13 (Matthew H. Kramer et al. eds., 1998) explaining how rights may effectively shield other, unprotected liberties
    • See, e.g., Matthew H. Kramer, Rights Without Trimmings, in A DEBATE OVER RIGHTS: PHILOSOPHICAL ENQUIRIES 7, 11-13 (Matthew H. Kramer et al. eds., 1998) (explaining how rights may "effectively shield" other, unprotected liberties
  • 259
    • 64949144884 scopus 로고    scopus 로고
    • Balganesh, supra note 3, at 604-05 & nn.36-37 (citing Kramer, supra, and discussing this 'shielding' thesis). If we instead assume a regime in which no private property rights exist at all, other questions emerge-such as how a fisher comes to possess the equipment for catching fish in the first place.
    • Balganesh, supra note 3, at 604-05 & nn.36-37 (citing Kramer, supra, and discussing this "'shielding' thesis"). If we instead assume a regime in which no private property rights exist at all, other questions emerge-such as how a fisher comes to possess the equipment for catching fish in the first place.
  • 260
    • 64949142413 scopus 로고    scopus 로고
    • The right to exclude is usually associated with property rule protection, which in turn is typified by injunctive relief. For a discussion of this view and a challenge to it, see generally Balganesh, supra note 3
    • The right to exclude is usually associated with property rule protection, which in turn is typified by injunctive relief. For a discussion of this view and a challenge to it, see generally Balganesh, supra note 3.
  • 261
    • 0042465009 scopus 로고    scopus 로고
    • See Lucian Arye Bebchuk, Property Rights and Liability Rules: The Ex Ante View of the Cathedral, 100 MICH. L. REV. 601, 633-34 (2001) (discussing how the choice between property rules and liability rules bears on ex ante investment choices). The example in the text refers to a very simple liability rule regime in which only a single taking of each fish would be possible; many more complicated variations on liability rules have been explored that could produce different results.
    • See Lucian Arye Bebchuk, Property Rights and Liability Rules: The Ex Ante View of the Cathedral, 100 MICH. L. REV. 601, 633-34 (2001) (discussing how the choice between property rules and liability rules bears on ex ante investment choices). The example in the text refers to a very simple liability rule regime in which only a single taking of each fish would be possible; many more complicated variations on liability rules have been explored that could produce different results.
  • 262
    • 84888467546 scopus 로고    scopus 로고
    • note 192
    • See infra note 192.
    • See infra
  • 263
    • 64949145770 scopus 로고    scopus 로고
    • TJnderprovision will not result if enough of the benefits are internalized to make the efficient level of provision worthwhile
    • TJnderprovision will not result if enough of the benefits are internalized to make the efficient level of provision worthwhile.
  • 264
    • 33846964906 scopus 로고    scopus 로고
    • See, e.g., Brett M. Frischmann & Mark A. Lemley, Spillovers, 107 COLUM. L. REV. 257, 276 (2007) (arguing that full internalization is unnecessary to incentivize innovation). This is the flip side of the observation that negative externalities will not always produce inefficiencies.
    • See, e.g., Brett M. Frischmann & Mark A. Lemley, Spillovers, 107 COLUM. L. REV. 257, 276 (2007) (arguing that full internalization is unnecessary to incentivize innovation). This is the flip side of the observation that negative externalities will not always produce inefficiencies.
  • 265
    • 64949100225 scopus 로고    scopus 로고
    • See, e.g., James M. Buchanan & Wm. Craig Stubblebine, Externality, 29 ECONOMICA 371, 380-81 (1962).
    • See, e.g., James M. Buchanan & Wm. Craig Stubblebine, Externality, 29 ECONOMICA 371, 380-81 (1962).
  • 266
    • 64949103356 scopus 로고    scopus 로고
    • see, e.g., RICHARD CORNES & TODD SANDLER, THE THEORY OF EXTERNALITIES, PUBLIC GOOD, AND CLUB Goods 6-7 (1986).
    • see, e.g., RICHARD CORNES & TODD SANDLER, THE THEORY OF EXTERNALITIES, PUBLIC GOOD, AND CLUB Goods 6-7 (1986).
  • 267
    • 64949114568 scopus 로고    scopus 로고
    • f1152 See, e.g., Ariel Porat, Expanding Restitution: Liability for Vnrequested Benefits 2-4 (Univ. of Chi. Law Sch., John M. Olin Law & Econ. Working Paper No. 388, 2008), available at http://ssrn.com/ abstract-1088796.
    • f1152 See, e.g., Ariel Porat, Expanding Restitution: Liability for Vnrequested Benefits 2-4 (Univ. of Chi. Law Sch., John M. Olin Law & Econ. Working Paper No. 388, 2008), available at http://ssrn.com/ abstract-1088796.
  • 268
    • 64949141415 scopus 로고    scopus 로고
    • On club goods, see, for example, James M. Buchanan, An Economic Theory of Clubs, 32 ECONOMICA 1 (1965). On distance as a de facto exclusionary mechanism, see Thramn Eggerts-son, Open Access Versus Common Property, in PROPERTY RIGHTS: COOPERATION, CONFLICT, AND LAW, supra note 137, at 73, 76.
    • On club goods, see, for example, James M. Buchanan, An Economic Theory of Clubs, 32 ECONOMICA 1 (1965). On distance as a de facto exclusionary mechanism, see Thramn Eggerts-son, Open Access Versus Common Property, in PROPERTY RIGHTS: COOPERATION, CONFLICT, AND LAW, supra note 137, at 73, 76.
  • 269
    • 84868925488 scopus 로고    scopus 로고
    • Mow Your Lawn or Risk Jail Time in Canton, Ohio, USATODAY.com,
    • For a recent example, see, June 3
    • For a recent example, see Associated Press, Mow Your Lawn or Risk Jail Time in Canton, Ohio, USATODAY.com, June 3, 2008, http://www.usatoday.com/ news/topstories/2008-06-03i773423°79-x.htm.
    • (2008) Associated Press
  • 270
    • 84986783423 scopus 로고    scopus 로고
    • see Allan C. DeSerpa, To Err Is Rational: A Theory of Excess Demand for Tickets, 15 MANAGERIAL & DECISION ECON. 511,515-17 (1994) (presenting a model of concert pricing in which the highest-demand buyers in terms of money price will generally not be the 'best audience' in their own estimation; if propensities to make noise are inversely correlated with pure reservation prices, scalping could reduce welfare by pricing out the part of the audience that is most essential to the experience);
    • see Allan C. DeSerpa, To Err Is Rational: A Theory of Excess Demand for Tickets, 15 MANAGERIAL & DECISION ECON. 511,515-17 (1994) (presenting a model of concert pricing in which "the highest-demand buyers in terms of money price will generally not be the 'best audience' in their own estimation"; if "propensities to make noise are inversely correlated with pure reservation prices," scalping could reduce welfare by pricing out the part of the audience that is most essential to the experience);
  • 271
    • 62349107040 scopus 로고
    • A Note on Restaurant Pricing and Other Examples of Social Influences on Price, 99
    • noting the social interaction effects associated with consuming events, see also
    • see also Gary S. Becker, A Note on Restaurant Pricing and Other Examples of Social Influences on Price, 99 J. POL. ECON. 1109 (1991) (noting the social interaction effects associated with consuming events);
    • (1991) J. POL. ECON , vol.1109
    • Becker, G.S.1
  • 272
    • 64949084029 scopus 로고    scopus 로고
    • Michael Rothschild & Lawrence J. White, The Analytics of the Pricing of Higher Education and Other Services in Which the Customers Are Inputs, 103 J. POL. ECON. 573, 581 n.15 (1995) (suggesting that enthusiasm-related externalities produced by season ticket-holders at sporting events might explain the lower prices and other benefits offered to that group).
    • Michael Rothschild & Lawrence J. White, The Analytics of the Pricing of Higher Education and Other Services in Which the Customers Are Inputs, 103 J. POL. ECON. 573, 581 n.15 (1995) (suggesting that enthusiasm-related externalities produced by season ticket-holders at sporting events might explain the lower prices and other benefits offered to that group).
  • 273
    • 64949083428 scopus 로고    scopus 로고
    • The queue may also be sought for its own sake by the purveyors of the entertainment, as evidence of popular demand. See Becker, supra note 155, at IIIO (positing that certain pricing strategies may be explained by the fact that the pleasure from a good is greater when many people want to consume it).
    • The queue may also be sought for its own sake by the purveyors of the entertainment, as evidence of popular demand. See Becker, supra note 155, at IIIO (positing that certain pricing strategies may be explained by the fact that "the pleasure from a good is greater when many people want to consume it").
  • 274
    • 64949095113 scopus 로고    scopus 로고
    • The economic literature on ticket scalping suggests a number of alternative explanations for opposition to scalping. See, e.g., Courty, supra note 8I, at 94-95 (producers wish to distance themselves from scalpers due to consumer pressure, or want to capture the late market themselves);
    • The economic literature on ticket scalping suggests a number of alternative explanations for opposition to scalping. See, e.g., Courty, supra note 8I, at 94-95 (producers wish to distance themselves from scalpers due to consumer pressure, or want to capture the "late market" themselves);
  • 275
    • 33846445706 scopus 로고    scopus 로고
    • Craig A. Depken, II, Another Look at Anti-Scalping Laws: Theory and Evidence, I30 PUB. CHOICE 55 (2007) (reviewing past literature and examining effects on prices);
    • Craig A. Depken, II, Another Look at Anti-Scalping Laws: Theory and Evidence, I30 PUB. CHOICE 55 (2007) (reviewing past literature and examining effects on prices);
  • 276
    • 0033462650 scopus 로고    scopus 로고
    • James l. Swofford, Arbitrage, Speculation, and Public Policy Toward Ticket Scalping, 27 PUB. FIN. REV. 531, 535-38 (1999) (producers wish to pass surplus to consumers to build goodwill).
    • James l. Swofford, Arbitrage, Speculation, and Public Policy Toward Ticket Scalping, 27 PUB. FIN. REV. 531, 535-38 (1999) (producers wish to pass surplus to consumers to build goodwill).
  • 277
    • 84868917569 scopus 로고    scopus 로고
    • See Chris Isidore, In Defense of $10,000 Super Bowl Tickets, cnnmoney.com, Jan. 31, 2007, http://money.cnn.com/2007/01/31/ commentary/sportsbiz/index.htm (discussing financial impact of no-shows).
    • See Chris Isidore, In Defense of $10,000 Super Bowl Tickets, cnnmoney.com, Jan. 31, 2007, http://money.cnn.com/2007/01/31/ commentary/sportsbiz/index.htm (discussing financial impact of no-shows).
  • 278
    • 64949146455 scopus 로고    scopus 로고
    • Susan Rose-Ackerman discusses this point using the example of the Homesteading Acts, under which homesteaders could acquire title only by holding the land for some period of time and improving it in specified ways. Rose-Ackerman, supra note 2, at 940, 957-59. There, both use and alienability restrictions were bundled within a protracted acquisition protocol, which arguably induced self-selection by (only) those willing and able to make the prescribed investments on the land.
    • Susan Rose-Ackerman discusses this point using the example of the Homesteading Acts, under which homesteaders could acquire title only by holding the land for some period of time and improving it in specified ways. Rose-Ackerman, supra note 2, at 940, 957-59. There, both use and alienability restrictions were bundled within a protracted acquisition protocol, which arguably induced self-selection by (only) those willing and able to make the prescribed investments on the land.
  • 279
    • 64949179029 scopus 로고    scopus 로고
    • See id. at 960-61. For a counterargument that homesteading laws may have actually impeded settlement by placing too many restrictions on the land, see Epstein, supra note 2, at 989
    • See id. at 960-61. For a counterargument that homesteading laws may have actually impeded settlement by placing too many restrictions on the land, see Epstein, supra note 2, at 989.
  • 280
    • 64949147073 scopus 로고    scopus 로고
    • See Rose-Ackerman, supra note 2, at 961 discussing the relevance of alienability restrictions to welfare policy
    • See Rose-Ackerman, supra note 2, at 961 (discussing the relevance of alienability restrictions to welfare policy).
  • 281
    • 64949190667 scopus 로고    scopus 로고
    • See id. at 940, 961 (explaining how alienability restrictions can lead those for whom a bene fit is intended to self-identify, and can ration goods to those who will use them themselves);
    • See id. at 940, 961 (explaining how alienability restrictions can lead those for whom a bene fit is intended to self-identify, and can ration goods to those who will use them themselves);
  • 282
    • 22744444489 scopus 로고    scopus 로고
    • Offering an Invisible Hand: The Rise of the Personal Choice Model for Rationing Public Benefits, 113
    • discussing how informal rationing of welfare benefits might be accomplished through differential responses to various requirements and hurdles, as well as the possibility that such mechanisms would fail to select for need
    • of. David A. Super, Offering an Invisible Hand: The Rise of the Personal Choice Model for Rationing Public Benefits, 113 YALE L.J. 815, 825-32 (2004) (discussing how informal rationing of welfare benefits might be accomplished through differential responses to various requirements and hurdles, as well as the possibility that such mechanisms would fail to select for need).
    • (2004) YALE L.J , vol.815 , pp. 825-832
    • of1    David, A.2    Super3
  • 283
    • 64949143685 scopus 로고    scopus 로고
    • A signal must be more costly for those who lack the desired underlying characteristic than for those who possess it. See, e.g, DOUGLAS G. BAIRD ET AL, GAME THEORY AND THE LAW 123 (1994, defining signaling, Requesting food always entails some up-front costs in time, effort, or dignity, but the food itself provides a larger offsetting benefit for those in dire need of a meal than it would for the well-fed. Thus, a soup kitchen featuring food that is difficult to transport or resell operates as a screening device
    • A signal must be more costly for those who lack the desired underlying characteristic than for those who possess it. See, e.g., DOUGLAS G. BAIRD ET AL., GAME THEORY AND THE LAW 123 (1994) (defining signaling). Requesting food always entails some up-front costs (in time, effort, or dignity), but the food itself provides a larger offsetting benefit for those in dire need of a meal than it would for the well-fed. Thus, a soup kitchen featuring food that is difficult to transport or resell operates as a screening device.
  • 284
    • 64949140799 scopus 로고    scopus 로고
    • See id, defining screening, See generally Super, supra note 161 similar analysis regarding design of welfare policy
    • See id. (defining screening). See generally Super, supra note 161 (similar analysis regarding design of welfare policy).
  • 286
    • 11144305243 scopus 로고    scopus 로고
    • See, e.g., Hovenkamp, supra note IIO; Glen O. Robinson, Personal Property Servitudes, 71 U. CHI. l. REV. 1449, 1505-08 (2004).
    • See, e.g., Hovenkamp, supra note IIO; Glen O. Robinson, Personal Property Servitudes, 71 U. CHI. l. REV. 1449, 1505-08 (2004).
  • 287
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    • The Private Production of Public Goods, 13
    • See
    • See Harold Demsetz, The Private Production of Public Goods, 13 J.L. & ECON. 293, 301-04 (1970).
    • (1970) J.L. & ECON , vol.293 , pp. 301-304
    • Demsetz, H.1
  • 289
    • 0034354977 scopus 로고    scopus 로고
    • see also James M. Buchanan & Yong J. Yoon, Symmetric Tragedies: Commons and Anticommons, 43 J.L. & ECON. 1 (2000). The anticommons idea originated in Frank Michelman's conception of a regulatory regime that would be the converse of a commons. See Michelman, supra note 124, at 6, 9;
    • see also James M. Buchanan & Yong J. Yoon, Symmetric Tragedies: Commons and Anticommons, 43 J.L. & ECON. 1 (2000). The anticommons idea originated in Frank Michelman's conception of a regulatory regime that would be the "converse" of a commons. See Michelman, supra note 124, at 6, 9;
  • 290
    • 64949097163 scopus 로고    scopus 로고
    • see also Frank Michelman, Remarks at Property Panel, Association of American Law Schools: Is the Tragedy of The Common Inevitable? 6-7 (Jan. 1985) (transcript on file with the Harvard Law School Library) (defining the anti-common).
    • see also Frank Michelman, Remarks at Property Panel, Association of American Law Schools: Is the Tragedy of The Common Inevitable? 6-7 (Jan. 1985) (transcript on file with the Harvard Law School Library) (defining the "anti-common").
  • 291
    • 64949085299 scopus 로고    scopus 로고
    • For an extended discussion of this point with cites to relevant literature, see Fennell, supra note 18, at 926-29, 946-52
    • For an extended discussion of this point with cites to relevant literature, see Fennell, supra note 18, at 926-29, 946-52.
  • 292
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    • Holdouts and Free Riders, 20
    • See, e.g
    • See, e.g., Lloyd Cohen, Holdouts and Free Riders, 20 J. LEGAL STUD. 351 (1991);
    • (1991) J. LEGAL STUD , vol.351
    • Cohen, L.1
  • 293
    • 64949188395 scopus 로고    scopus 로고
    • Fennell, supra note 18, at 926-29, 946-52
    • Fennell, supra note 18, at 926-29, 946-52.
  • 294
    • 64949191899 scopus 로고    scopus 로고
    • See Merrill, supra note 43, at 75-78
    • See Merrill, supra note 43, at 75-78.
  • 295
    • 84868922246 scopus 로고
    • Problems of "extortion," where a party seeks payment for refraining from doing something she has no independent interest in doing, boil down to monopoly power as well. See Harold Demsetz, When Does the Rule of Liability Matter?, I
    • Problems of "extortion," where a party seeks payment for refraining from doing something she has no independent interest in doing, boil down to monopoly power as well. See Harold Demsetz, When Does the Rule of Liability Matter?, I J. LEGAL STUD. 13, 22-25 (1972).
    • (1972) J. LEGAL STUD , vol.13 , pp. 22-25
  • 296
    • 64949144919 scopus 로고
    • Holdouts, Externalities, and the Single Owner: One More Salute to Ronald Coase, 36
    • explaining that in private necessity cases the bargaining range is so large that there is some risk that no deal will be struck as each side campaigns for the larger fraction of the contested domain
    • Cf. Richard A. Epstein, Holdouts, Externalities, and the Single Owner: One More Salute to Ronald Coase, 36 J.L. & ECON. 553, 577 (1993) (explaining that in private necessity cases "the bargaining range is so large that there is some risk that no deal will be struck as each side campaigns for the larger fraction of the contested domain").
    • (1993) J.L. & ECON , vol.553 , pp. 577
    • Cf1    Richard, A.2    Epstein3
  • 297
    • 64949096581 scopus 로고    scopus 로고
    • See, e.g., RICHARD A. EPSTEIN, CASES AND MATERIALS ON TORTS 706-07 (9th ed. 2008) (noting these risks in the context of injunctive relief).
    • See, e.g., RICHARD A. EPSTEIN, CASES AND MATERIALS ON TORTS 706-07 (9th ed. 2008) (noting these risks in the context of injunctive relief).
  • 298
    • 64949099685 scopus 로고    scopus 로고
    • The power to veto a transaction is the defining characteristic of property rules, which, true to their name, commonly protect property interests. See Calabresi & Melamed, supra note 1, at 1092
    • The power to veto a transaction is the defining characteristic of "property rules," which, true to their name, commonly protect property interests. See Calabresi & Melamed, supra note 1, at 1092.
  • 299
    • 84864074034 scopus 로고    scopus 로고
    • Justified Monopolies: Regulating Pharmaceuticals and Telecommunications, 56
    • See
    • See Richard A. Epstein, Justified Monopolies: Regulating Pharmaceuticals and Telecommunications, 56 CASE W. RES. l. REV. 103, 108-09 (2005).
    • (2005) CASE W. RES. l. REV , vol.103 , pp. 108-109
    • Epstein, R.A.1
  • 300
    • 64949130580 scopus 로고    scopus 로고
    • See id
    • See id.
  • 301
    • 64949085334 scopus 로고    scopus 로고
    • See Rose-Ackerman, supra note 2, at 955-50, 960-61 (discussing coerced use as a means of targeting benefits).
    • See Rose-Ackerman, supra note 2, at 955-50, 960-61 (discussing "coerced use" as a means of targeting benefits).
  • 302
    • 64949112615 scopus 로고    scopus 로고
    • See infra pp. 1453-54 (discussing self-selection induced by alienability limits). Inalienability thus serves as a screening mechanism. See BAIRD ET AL., supra note 162, at 122-23 (explaining how screening induces revelation of private, nonverifiable information).
    • See infra pp. 1453-54 (discussing self-selection induced by alienability limits). Inalienability thus serves as a screening mechanism. See BAIRD ET AL., supra note 162, at 122-23 (explaining how screening induces revelation of private, nonverifiable information).
  • 303
    • 64949107549 scopus 로고    scopus 로고
    • See, e.g., Ngai Pindell, Fear and Loathing: Combating Speculation in Local Communities, 39 U. MICH. J.L. REFORM 543 (2006) (urging a three-year holding period for initial purchasers of certain categories of residential property to discourage real-estate speculation).
    • See, e.g., Ngai Pindell, Fear and Loathing: Combating Speculation in Local Communities, 39 U. MICH. J.L. REFORM 543 (2006) (urging a three-year holding period for initial purchasers of certain categories of residential property to discourage real-estate speculation).
  • 304
    • 64949165916 scopus 로고    scopus 로고
    • This is not to suggest that high valuers or long-term holders are temperamentally disinclined to strategically squeeze surplus out of a deal when they can. The point is simply that fewer transactions (and hence fewer potentially problematic transactions) are necessary to move goods to their highest valuers if those who acquire in the first place are more likely to be high valuers themselves
    • This is not to suggest that high valuers or long-term holders are temperamentally disinclined to strategically squeeze surplus out of a deal when they can. The point is simply that fewer transactions (and hence fewer potentially problematic transactions) are necessary to move goods to their highest valuers if those who acquire in the first place are more likely to be high valuers themselves.
  • 305
    • 33846467857 scopus 로고    scopus 로고
    • Part III
    • See infra Part III.
    • See infra
  • 306
    • 64949177146 scopus 로고    scopus 로고
    • For a discussion of the relevance of output to questions of alienability, see Levmore, supra note 7, at 116-21
    • For a discussion of the relevance of output to questions of alienability, see Levmore, supra note 7, at 116-21.
  • 307
    • 64949092612 scopus 로고    scopus 로고
    • See infra section III.A.3.
    • See infra section III.A.3.
  • 308
    • 64949102760 scopus 로고    scopus 로고
    • This dichotomy appears frequently in the property literature, often building explicitly on KARL MArx, CAPITAL: A CRITICAL ANALYSIS OF CAPITALIST PRODUCTION Frederick Engels ed, Samuel Moore & Edward Aveling trans, George Allen & Unwin 1972, 1887, which defined and distinguished use-value and exchange value, id. at 2-8
    • This dichotomy appears frequently in the property literature, often building explicitly on KARL MArx, CAPITAL: A CRITICAL ANALYSIS OF CAPITALIST PRODUCTION (Frederick Engels ed., Samuel Moore & Edward Aveling trans., George Allen & Unwin 1972) (1887), which defined and distinguished "use-value" and "exchange value," id. at 2-8.
  • 309
    • 64949185175 scopus 로고    scopus 로고
    • See, e.g., JOHN R. LOGAN & HARVEY L. MOLOTCH, URBAN FORTUNES: THE POLITICAL ECONOMY OF PLACE 1-2 (20th anniversary ed. 2007);
    • See, e.g., JOHN R. LOGAN & HARVEY L. MOLOTCH, URBAN FORTUNES: THE POLITICAL ECONOMY OF PLACE 1-2 (20th anniversary ed. 2007);
  • 310
    • 68949134356 scopus 로고    scopus 로고
    • Eduardo Peñalver, Land Virtues, 94 CORNELL L. REV. (forthcoming May 2009) (manuscript at 16-23), available at http://ssrn.com/abstracts=1138714 (invoking the use value and exchange value distinction in the context of homes);
    • Eduardo Peñalver, Land Virtues, 94 CORNELL L. REV. (forthcoming May 2009) (manuscript at 16-23), available at http://ssrn.com/abstracts=1138714 (invoking the "use value" and "exchange value" distinction in the context of homes);
  • 311
    • 64949115205 scopus 로고    scopus 로고
    • see also JOHN CHRISTMAN, THE MYTH OF PROPERTY 128 (1994) (distinguishing control ownership from income ownership);
    • see also JOHN CHRISTMAN, THE MYTH OF PROPERTY 128 (1994) (distinguishing "control ownership" from "income ownership");
  • 312
    • 64949165258 scopus 로고    scopus 로고
    • J.W. HARRIS, PROPERTY AND JUSTICE 26-27 (1996) (distinguishing the use of things from the allocation of items of social wealth);
    • J.W. HARRIS, PROPERTY AND JUSTICE 26-27 (1996) (distinguishing "the use of things" from "the allocation of items of social wealth");
  • 313
    • 21144480929 scopus 로고
    • The Structure of Entitlements, 78
    • distinguishing in-kind enjoyment from monetary compensation
    • Madeline Morris, The Structure of Entitlements, 78 CORNELL L. REV. 822, 837-38 (1993) (distinguishing "in-kind enjoyment" from "monetary compensation").
    • (1993) CORNELL L. REV , vol.822 , pp. 837-838
    • Morris, M.1
  • 314
    • 64949102763 scopus 로고    scopus 로고
    • See, e.g, Ayres & Madison, supra note 2, at 85-86
    • See, e.g., Ayres & Madison, supra note 2, at 85-86.
  • 315
    • 64949093897 scopus 로고    scopus 로고
    • See, e.g., Calabresi & Melamed, supra note 1, at 1093 (describing inalienability rules as quite different from property and liability rules in that they not only 'protect' the entitlement but may also be viewed as limiting or regulating the grant of the entitlement itself);
    • See, e.g., Calabresi & Melamed, supra note 1, at 1093 (describing "inalienability rules" as "quite different from property and liability rules" in that they "not only 'protect' the entitlement" but "may also be viewed as limiting or regulating the grant of the entitlement itself);
  • 316
    • 0346581482 scopus 로고    scopus 로고
    • Louis Kaplow & Steven Shavell, Property Rules Versus Liability Rules: An Economic Analysis, 109 HARV. L. REV. 713, 715 n.1 (1996).
    • Louis Kaplow & Steven Shavell, Property Rules Versus Liability Rules: An Economic Analysis, 109 HARV. L. REV. 713, 715 n.1 (1996).
  • 317
    • 64949200119 scopus 로고    scopus 로고
    • My focus on control here echoes in part and diverges in part from Christman's characterization of control rights as distinct from income rights. See CHRISTMAN, supra note 183, at 127-31.
    • My focus on "control" here echoes in part and diverges in part from Christman's characterization of "control rights" as distinct from "income rights." See CHRISTMAN, supra note 183, at 127-31.
  • 318
    • 84868917563 scopus 로고    scopus 로고
    • It is not clear whether inalienability is a cause or a consequence of the item's uncertain property status in these cases. Compare HONORÉ, supra note 5, at 181 (When the legislature or courts think that an interest should be alienable and transmissible, they reify it and say that it can be owned.), with J.E. PENNER, THE IDEA OF PROPERTY IN LAW 129-30 (1997) (saying of choses in action: It is not because they are alienable that they are things. Rather it is because they are things that they are alienable. (emphasis omitted)).
    • It is not clear whether inalienability is a cause or a consequence of the item's uncertain property status in these cases. Compare HONORÉ, supra note 5, at 181 ("When the legislature or courts think that an interest should be alienable and transmissible, they reify it and say that it can be owned."), with J.E. PENNER, THE IDEA OF PROPERTY IN LAW 129-30 (1997) (saying of choses in action: "It is not because they are alienable that they are things. Rather it is because they are things that they are alienable." (emphasis omitted)).
  • 319
    • 64949095115 scopus 로고    scopus 로고
    • Owners are often in the role of sellers and nonowners in the role of buyers, although a number of other owner/nonowner pairings are possible, such as donor and donee, mortgagor and mortgagee, takee and taker, or defendant and plaintiff
    • Owners are often in the role of "sellers" and nonowners in the role of "buyers," although a number of other owner/nonowner pairings are possible, such as donor and donee, mortgagor and mortgagee, takee and taker, or defendant and plaintiff.
  • 320
    • 84868914229 scopus 로고    scopus 로고
    • A recent working paper by Matteo Rizzolli includes a figure that similarly sets out three columns for put-option liability rule, property rule, and call-option liability rule. Rizzolli, supra note 2, § 3.1, fig.3-1. Rizzolli's schematic, however, is used to illustrate the Hohfeldian equivalents that each party holds under each type of rule and to make observations about the effects of call options and put options, respectively, on the ownership package.
    • A recent working paper by Matteo Rizzolli includes a figure that similarly sets out three columns for "put-option liability rule," "property rule," and "call-option liability rule." Rizzolli, supra note 2, § 3.1, fig.3-1. Rizzolli's schematic, however, is used to illustrate the Hohfeldian equivalents that each party holds under each type of rule and to make observations about the effects of call options and put options, respectively, on the ownership package.
  • 321
    • 84868914230 scopus 로고    scopus 로고
    • See id. § 3.1 (citing Wesley Newcomb Hohfeld, Fundamental Legal Conceptions As Applied in Judicial Reasoning, 26 YALE L.J. 710 (1917)). My depiction differs in that it breaks apart the two elements of transfer control represented by the two rows in Figure 2, This approach yields a refinement in conclusions. Rizzolli indicates that [t]he bundle of rights is 'enriched' under put-option liability rules, id., but my analysis shows a more complex picture: a put option grants more control over the fact of the transfer but withdraws control from the owner over the price at which the transfer occurs. For further discussion of the operation of put options, see, for example, Ayres, supra note 96, at 803-12.
    • See id. § 3.1 (citing Wesley Newcomb Hohfeld, Fundamental Legal Conceptions As Applied in Judicial Reasoning, 26 YALE L.J. 710 (1917)). My depiction differs in that it breaks apart the two elements of transfer control represented by the two rows in Figure 2, This approach yields a refinement in conclusions. Rizzolli indicates that "[t]he bundle of rights is 'enriched' under put-option liability rules," id., but my analysis shows a more complex picture: a put option grants more control over the fact of the transfer but withdraws control from the owner over the price at which the transfer occurs. For further discussion of the operation of put options, see, for example, Ayres, supra note 96, at 803-12.
  • 322
    • 64949136887 scopus 로고    scopus 로고
    • Transfer control could be broken down further. See Morris, supra note 183, 833-37, 843 (discussing initiation choice and veto power, both of which involve control over whether a transfer occurs and which collectively amount to transfer control or a transfer autonomy element).
    • Transfer control could be broken down further. See Morris, supra note 183, 833-37, 843 (discussing "initiation choice" and "veto power," both of which involve control over whether a transfer occurs and which collectively amount to "transfer control" or "a transfer autonomy element").
  • 323
    • 64949196989 scopus 로고    scopus 로고
    • See, e.g., id. at 851-56 (describing the liability rule, or call option, and the Reverse Liability rule, or put option).
    • See, e.g., id. at 851-56 (describing the liability rule, or call option, and the "Reverse Liability rule," or put option).
  • 324
    • 64949133917 scopus 로고    scopus 로고
    • See id.; see also Ian Ayres & Paul M. Goldbart, Optimal Delegation and Decoupling in the Design of Liability Rules, 100 MICH. L. REV. 1, 5-6 (2001). Scholars have identified numerous ways to structure and combine calls and puts in order to achieve particular objectives. For a recent treatment with discussions of other relevant literature, see IAN AYRES, OPTIONAL LAW: THE STRUCTURE OF LEGAL ENTITLEMENTS (2005). These complex alternatives are not reflected in Figure 2, but could play a role in designing real-world inalienability rules.
    • See id.; see also Ian Ayres & Paul M. Goldbart, Optimal Delegation and Decoupling in the Design of Liability Rules, 100 MICH. L. REV. 1, 5-6 (2001). Scholars have identified numerous ways to structure and combine calls and puts in order to achieve particular objectives. For a recent treatment with discussions of other relevant literature, see IAN AYRES, OPTIONAL LAW: THE STRUCTURE OF LEGAL ENTITLEMENTS (2005). These complex alternatives are not reflected in Figure 2, but could play a role in designing real-world inalienability rules.
  • 325
    • 17044371584 scopus 로고    scopus 로고
    • Revealing Options, 118
    • See, e.g
    • See, e.g., Lee Anne Fennell, Revealing Options, 118 HARV. L. REV. 1399, 1406, 1416-17 (2005).
    • (2005) HARV. L. REV , vol.1399 , Issue.1406 , pp. 1416-1417
    • Anne Fennell, L.1
  • 326
    • 64949133282 scopus 로고    scopus 로고
    • Calabresi & Melamed, supra note 1, at 1093
    • Calabresi & Melamed, supra note 1, at 1093.
  • 327
    • 64949168461 scopus 로고    scopus 로고
    • See id
    • See id.
  • 328
    • 84868917559 scopus 로고    scopus 로고
    • Although procedures vary, a protracted failure to pay past-due taxes can result in a transfer of the property to the government. See, e.g, MICH. COMP. LAWS SERV. § 211. 78g (LexisNexis 2006, More generally, we might treat any abandonment right as a put option good against the world, at a strike price of zero. Cf. Peter H. Huang, Lawsuit Abandonment Options in Possibly Frivolous Litigation Games, 23 REV. LlTIG. 47 (2004, analyzing the plaintiff's option to abandon a lawsuit, If proper disposal is required (as for hazardous wastes, the put option may carry a negative price or the transfer may require the consent of the transferee. For a discussion of the limits that the law places on abandonment, including a general prohibition on the abandonment of land, see Lior Jacob Strahilevitz, The Right to Abandon Oct. 23, 2008, unpublished manuscript, on file with the Harvard Law School Library
    • Although procedures vary, a protracted failure to pay past-due taxes can result in a transfer of the property to the government. See, e.g., MICH. COMP. LAWS SERV. § 211. 78g (LexisNexis 2006). More generally, we might treat any abandonment right as a put option good against the world, at a strike price of zero. Cf. Peter H. Huang, Lawsuit Abandonment Options in Possibly Frivolous Litigation Games, 23 REV. LlTIG. 47 (2004) (analyzing the plaintiff's option to abandon a lawsuit). If proper disposal is required (as for hazardous wastes), the put option may carry a negative price or the transfer may require the consent of the transferee. For a discussion of the limits that the law places on abandonment, including a general prohibition on the abandonment of land, see Lior Jacob Strahilevitz, The Right to Abandon (Oct. 23, 2008) (unpublished manuscript, on file with the Harvard Law School Library).
  • 329
    • 64949092194 scopus 로고    scopus 로고
    • Todd J. Zywicki & Joseph D. Adamson, The Law & Economics of Subprime Lending, 80 U. COLO. L. REV. (forthcoming Feb. 2009) (manuscript at 26-35), available at http://ssrn.com/abstracts 1106907 (examining support for an option model of foreclosure decisions).
    • Todd J. Zywicki & Joseph D. Adamson, The Law & Economics of Subprime Lending, 80 U. COLO. L. REV. (forthcoming Feb. 2009) (manuscript at 26-35), available at http://ssrn.com/abstracts 1106907 (examining support for an "option model" of foreclosure decisions).
  • 330
    • 64949170696 scopus 로고    scopus 로고
    • For example, the possibility of taxing the transfer of financial instruments in order to curb speculative activity has recently received renewed attention. See Joseph J. Thorndike, Speculation and Taxation: Time for a Transaction Tax?, 119 TAX NOTES 1367 (2008) (surveying implemented and proposed transfer taxes, including one proposed by economist Dean Baker);
    • For example, the possibility of taxing the transfer of financial instruments in order to curb speculative activity has recently received renewed attention. See Joseph J. Thorndike, Speculation and Taxation: Time for a Transaction Tax?, 119 TAX NOTES 1367 (2008) (surveying implemented and proposed transfer taxes, including one proposed by economist Dean Baker);
  • 331
    • 84868930069 scopus 로고    scopus 로고
    • Stephen Mihm, The 8th Annual Year in Ideas: The Stock Transfer Tax, N.Y. TIMES, Dec. 14, 2008, § 6 (Magazine), at 74, 74-76 (discussing Baker's proposal and its antecedents);
    • Stephen Mihm, The 8th Annual Year in Ideas: The Stock Transfer Tax, N.Y. TIMES, Dec. 14, 2008, § 6 (Magazine), at 74, 74-76 (discussing Baker's proposal and its antecedents);
  • 333
    • 64949177774 scopus 로고    scopus 로고
    • Such restrictions might set minimum or maximum quantities or require that goods be sold in particular configurations. See supra note 119. Legal doctrines that specify what particular sorts of transfers must convey, such as the patent exhaustion doctrine and the first-sale doctrine in copyright, fall into this category. See Richard A. Epstein, The Disintegration of Intellectual Property 28-49 (Univ. of Chi. Law Sch., John M. Olin Law & Econ. Working Paper No. 423, 2008), available at http://ssrn.com/ abstract-1236273 (discussing these and other intellectual property doctrines from the perspective of alienability);
    • Such restrictions might set minimum or maximum quantities or require that goods be sold in particular configurations. See supra note 119. Legal doctrines that specify what particular sorts of transfers must convey, such as the patent exhaustion doctrine and the first-sale doctrine in copyright, fall into this category. See Richard A. Epstein, The Disintegration of Intellectual Property 28-49 (Univ. of Chi. Law Sch., John M. Olin Law & Econ. Working Paper No. 423, 2008), available at http://ssrn.com/ abstract-1236273 (discussing these and other intellectual property doctrines
  • 334
    • 0347080151 scopus 로고    scopus 로고
    • David J. Franklyn, Owning Words in Cyberspace: The Accidental Trademark Regime, 2001 WIS. L. REV. 1251, 1272-73 (discussing trademark law's ban on transferring a mark without also transferring goodwill). Not only may the law require that transfers contain certain minimum packages of rights rather than a subset thereof, it may mandate that certain rights be held back from packages that are conveyed. See, e.g., JULIE E. COHEN ET AL., COPYRIGHT IN A GLOBAL INFORMATION ECONOMY 177-80 (2d ed. 2006) (citing 17 U.S.C. & § 203, 304(c), 304(d) (2006)) (describing nonwaivable rights to terminate certain copyright grants at specified times under copyright law);
    • David J. Franklyn, Owning Words in Cyberspace: The Accidental Trademark Regime, 2001 WIS. L. REV. 1251, 1272-73 (discussing trademark law's ban on transferring a mark without also transferring goodwill). Not only may the law require that transfers contain certain minimum packages of rights rather than a subset thereof, it may mandate that certain rights be held back from packages that are conveyed. See, e.g., JULIE E. COHEN ET AL., COPYRIGHT IN A GLOBAL INFORMATION ECONOMY 177-80 (2d ed. 2006) (citing 17 U.S.C. & § 203, 304(c), 304(d) (2006)) (describing nonwaivable rights to terminate certain copyright grants at specified times under copyright law);
  • 335
    • 33748117350 scopus 로고    scopus 로고
    • Michael Rushton, The Law and Economics of Artists' Inalienable Rights, 25 J. CULTURAL ECON. 243, 249-50 (2001) (discussing droit de suite, under which artists retain inalienable rights to a percentage of the proceeds from resale of their work).
    • Michael Rushton, The Law and Economics of Artists' Inalienable Rights, 25 J. CULTURAL ECON. 243, 249-50 (2001) (discussing droit de suite, under which artists retain inalienable rights to a percentage of the proceeds from resale of their work).
  • 336
    • 64949090275 scopus 로고    scopus 로고
    • See, e.g., DUKEMINIER ET AL., supra note 59, at 195-96 (noting the law's general disfavor of alienability restrictions on estates in land, as well as some limited exceptions).
    • See, e.g., DUKEMINIER ET AL., supra note 59, at 195-96 (noting the law's general disfavor of alienability restrictions on estates in land, as well as some limited exceptions).
  • 337
    • 0004575044 scopus 로고    scopus 로고
    • See Joseph William Singer, No Right To Exclude: Public Accommodations and Private Property, 90 Nw. U. L. REV. 1283, 1457-58 (1996). Similar issues of bundled access arise in a variety of other contexts, including debates over network neutrality.
    • See Joseph William Singer, No Right To Exclude: Public Accommodations and Private Property, 90 Nw. U. L. REV. 1283, 1457-58 (1996). Similar issues of bundled access arise in a variety of other contexts, including debates over "network neutrality."
  • 338
    • 18944389038 scopus 로고    scopus 로고
    • An Economic Theory of Infrastructure and Commons Management, 89
    • See
    • See Brett M. Frischmann, An Economic Theory of Infrastructure and Commons Management, 89 MINN. L. REV. 917, 925-33, 1008-22 (2005).
    • (2005) MINN. L. REV , vol.917 , Issue.925-933 , pp. 1008-1022
    • Frischmann, B.M.1
  • 339
    • 84868919624 scopus 로고    scopus 로고
    • Something that is market-inalienable is not to be sold. ⋯, at
    • Radin, Market-Inalienability, supra note 8, at 1850 ("Something that is market-inalienable is not to be sold. ⋯").
    • Market-Inalienability, supra note , vol.8 , pp. 1850
    • Radin1
  • 340
    • 64949181908 scopus 로고    scopus 로고
    • See Ayres & Madison, supra note 2, at 103-05 (citing and discussing RICHARD A. EPSTEIN, BARGAINING WITH THE STATE 57 (1993)).
    • See Ayres & Madison, supra note 2, at 103-05 (citing and discussing RICHARD A. EPSTEIN, BARGAINING WITH THE STATE 57 (1993)).
  • 341
    • 64949095119 scopus 로고    scopus 로고
    • A sale through a no reserve auction would also involve relinquishing control over the fact of the transfer, while setting a reserve would preserve a veto over the transaction if the price falls below a certain level. For a discussion of the potential role of auctions in addressing holdout problems, see infra section III.C.z.
    • A sale through a "no reserve" auction would also involve relinquishing control over the fact of the transfer, while setting a reserve would preserve a veto over the transaction if the price falls below a certain level. For a discussion of the potential role of auctions in addressing holdout problems, see infra section III.C.z.
  • 342
    • 64949171288 scopus 로고    scopus 로고
    • See, e.g., Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 127 S. Ct. 2705, 2710 (2007) (holding that vertical price restraints are not per se violations of the Sherman Act but rather are to be judged by the rule of reason).
    • See, e.g., Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 127 S. Ct. 2705, 2710 (2007) (holding that vertical price restraints are not per se violations of the Sherman Act but rather "are to be judged by the rule of reason").
  • 343
    • 64949103961 scopus 로고    scopus 로고
    • Such arrangements are an example of what Abraham Bell and Gideon Parchomovsky have termed pliability rules. See Abraham Bell & Gideon Parchomovsky, Pliability Rules, 101 MICH. L. REV. 1, 5 (2002) (discussing contingent rules that provide an entitlement owner with property rule or liability rule protection as long as some specified condition obtains; however, once the relevant condition changes, a different rule protects the entitlement).
    • Such arrangements are an example of what Abraham Bell and Gideon Parchomovsky have termed "pliability rules." See Abraham Bell & Gideon Parchomovsky, Pliability Rules, 101 MICH. L. REV. 1, 5 (2002) (discussing "contingent rules that provide an entitlement owner with property rule or liability rule protection as long as some specified condition obtains; however, once the relevant condition changes, a different rule protects the entitlement").
  • 344
    • 84868935066 scopus 로고    scopus 로고
    • See, rovides that if the grantee attempts to transfer his interest, it is forfeited to another person. ⋯
    • See DUKEMINIER ET AL., supra note 59, at 195 ("A forfeiture restraint rovides that if the grantee attempts to transfer his interest, it is forfeited to another person. ⋯").
    • supra note 59, at 195 (A forfeiture restraint
    • ET AL, D.1
  • 345
    • 64949142382 scopus 로고
    • The Utilitarian Logic of Liberalism, 97
    • Russell Hardin, The Utilitarian Logic of Liberalism, 97 ETHICS 47, 58-62 (1986);
    • (1986) ETHICS , vol.47 , pp. 58-62
    • Hardin, R.1
  • 346
    • 64949108558 scopus 로고    scopus 로고
    • see also THOMAS C. SCHELLING, THE STRATEGY OF CONFLICT 22 (paperback ed. 1980) (noting that, in bargaining, weakness is often strength, freedom may be freedom to capitulate);
    • see also THOMAS C. SCHELLING, THE STRATEGY OF CONFLICT 22 (paperback ed. 1980) (noting "that, in bargaining, weakness is often strength, freedom may be freedom to capitulate");
  • 347
    • 64949189011 scopus 로고
    • The Utilitarian Logic of Inalienable Rights, 97
    • explaining that while making the right to divorce inalienable may keep some prospective couples away from the altar, it also removes a bargaining chip from the table that could introduce imbalances into many marriages that would occur in any case
    • Arthur Kuflick, The Utilitarian Logic of Inalienable Rights, 97 ETHICS 75, 86-87 (1986) (explaining that while making the right to divorce inalienable may keep some prospective couples away from the altar, it also removes a bargaining chip from the table that could introduce imbalances into many marriages that would occur in any case).
    • (1986) ETHICS , vol.75 , pp. 86-87
    • Kuflick, A.1
  • 348
    • 64949157691 scopus 로고    scopus 로고
    • Cf. Hardin, supra note 208, at 61 (observing that a ban on selling oneself into slavery prevents the destitute from making deals they might prefer, but ensures that the next group up the economic ladder will be free workers rather than slaves).
    • Cf. Hardin, supra note 208, at 61 (observing that a ban on selling oneself into slavery prevents the destitute from making deals they might prefer, but ensures that the next group up the economic ladder will be free workers rather than slaves).
  • 349
    • 64949169700 scopus 로고    scopus 로고
    • See id. at 58-62 (discussing the nine-hour work day and other examples). This line of reasoning seems to explain the position taken by tenant farmers in Barlow v. Collins, 397 U.S. 159 (1970).
    • See id. at 58-62 (discussing the nine-hour work day and other examples). This line of reasoning seems to explain the position taken by tenant farmers in Barlow v. Collins, 397 U.S. 159 (1970).
  • 350
    • 64949161294 scopus 로고    scopus 로고
    • supra note 2, at 959 n.79. The farmers sought to maintain a key restriction on agricultural payments they received to avoid being compelled by their landlords to assign their benefits in exchange for the right to work the land
    • See
    • See Rose-Ackerman, supra note 2, at 959 n.79. The farmers sought to maintain a key restriction on agricultural payments they received to avoid being compelled by their landlords to assign their benefits in exchange for the right to work the land. See id.;
    • See id
    • Rose-Ackerman1
  • 351
    • 64949118494 scopus 로고    scopus 로고
    • see also Hardin, supra note 208, at 62 (We may not be able to know what were the views of the workers, women, tenant farmers, and children protected by various pieces of supposedly paternalistic legislation over the decades, but it is plausible that, had they been able to express a collective will by voting rather than by individually entering their separate contracts, many of the groups would overwhelmingly have chosen to restrict themselves as the legislation eventually did.).
    • see also Hardin, supra note 208, at 62 ("We may not be able to know what were the views of the workers, women, tenant farmers, and children protected by various pieces of supposedly paternalistic legislation over the decades, but it is plausible that, had they been able to express a collective will by voting rather than by individually entering their separate contracts, many of the groups would overwhelmingly have chosen to restrict themselves as the legislation eventually did.").
  • 352
    • 64949161867 scopus 로고    scopus 로고
    • See, e.g., Lewinsohn-Zamir, supra note 12 (exploring a variety of roperty law settings in which more is not deemed better than less);
    • See, e.g., Lewinsohn-Zamir, supra note 12 (exploring a variety of roperty law settings in which "more" is not deemed better than "less");
  • 353
    • 64949091531 scopus 로고    scopus 로고
    • see also EPSTEIN, supra note 203, at 183-84 (explaining how a nexus requirement for land use exactions could leave owners better off, based on the empirical prediction that the government would not deny the owner's requested permit if it were unable to use its denial power to leverage unrelated concessions);
    • see also EPSTEIN, supra note 203, at 183-84 (explaining how a nexus requirement for land use exactions could leave owners better off, based on the empirical prediction that the government would not deny the owner's requested permit if it were unable to use its denial power to leverage unrelated concessions);
  • 354
    • 64949156162 scopus 로고    scopus 로고
    • W. Stephen Westermann, Strong Versus Standard Property Entitlements: Toward a New Theory of Legal Entitlements (Oct. 23, 2007) (unpublished manuscript), available at http://papers.ssrn.com/s0l3/papers.cfm? abstract-id=1o24o81 (arguing that strong property entitlements, which come with built-in limitations on what they may be traded for, offer more autonomy to owners because they enhance the owners' ability to resist trades).
    • W. Stephen Westermann, Strong Versus Standard Property Entitlements: Toward a New Theory of Legal Entitlements (Oct. 23, 2007) (unpublished manuscript), available at http://papers.ssrn.com/s0l3/papers.cfm? abstract-id=1o24o81 (arguing that "strong" property entitlements, which come with built-in limitations on what they may be traded for, offer more autonomy to owners because they enhance the owners' ability to resist trades).
  • 355
    • 64949138829 scopus 로고    scopus 로고
    • In roadway Chicken, two cars head toward each other on a collision course, each hoping to force the other to swerve. For a description of the Chicken Game and strategies within it, see, for example, BAIRD ET AL., supra note 162, at 43-45. The idea of tearing out one's own steering wheel as a precommitment device in a game of Chicken is often attributed to Thomas Schelling; a discussion of this strategy and related moves appears in HERMAN KAHN, ON ESCALATION: METAPHORS AND SCENARIOS II (1965).
    • In roadway "Chicken," two cars head toward each other on a collision course, each hoping to force the other to swerve. For a description of the Chicken Game and strategies within it, see, for example, BAIRD ET AL., supra note 162, at 43-45. The idea of tearing out one's own steering wheel as a precommitment device in a game of Chicken is often attributed to Thomas Schelling; a discussion of this strategy and related moves appears in HERMAN KAHN, ON ESCALATION: METAPHORS AND SCENARIOS II (1965).
  • 356
    • 64949167813 scopus 로고    scopus 로고
    • see also T.C. Schelling, Uncertainty, Brinksmanship, and the Game of Chicken, in STRATEGIC INTERACTION AND CONFLICT 74, 83-83 (Kathleen Archibald ed., 1966) (explaining how an unresponsive or inaccessible steering mechanism could provide a strategic advantage).
    • see also T.C. Schelling, Uncertainty, Brinksmanship, and the Game of "Chicken," in STRATEGIC INTERACTION AND CONFLICT 74, 83-83 (Kathleen Archibald ed., 1966) (explaining how an unresponsive or inaccessible steering mechanism could provide a strategic advantage).
  • 357
    • 64949198968 scopus 로고    scopus 로고
    • See, e.g., Ian Ayres & Eric Talley, Solomonic Bargaining: Dividing a Legal Entitlement To Facilitate Coasean Trade, 104 YALE L.J. 1027, 1049 n.74 (1995) (noting the bargaining advantage conferred by allowing one party to make a take-it-or-leave-it offer).
    • See, e.g., Ian Ayres & Eric Talley, Solomonic Bargaining: Dividing a Legal Entitlement To Facilitate Coasean Trade, 104 YALE L.J. 1027, 1049 n.74 (1995) (noting the bargaining advantage conferred by allowing one party to make a take-it-or-leave-it offer).
  • 358
    • 64949133250 scopus 로고    scopus 로고
    • Laws that mandate the bundling of alienability can also have ex ante effects, both on the initial choice to acquire an entitlement and on the decision to initiate its transfer. Hence, one effect of civil rights laws may be to induce those bent on discrimination to select out of certain markets. This effect could further the mission of antidiscrimination laws by reducing enforcement burdens
    • Laws that mandate the bundling of alienability can also have ex ante effects - both on the initial choice to acquire an entitlement and on the decision to initiate its transfer. Hence, one effect of civil rights laws may be to induce those bent on discrimination to select out of certain markets. This effect could further the mission of antidiscrimination laws by reducing enforcement burdens.
  • 359
    • 64949180787 scopus 로고    scopus 로고
    • See infra p. 1455.
    • See infra , pp. 1455
  • 360
    • 64949171927 scopus 로고    scopus 로고
    • I thank Omri Ben-Shahar for comments on this point
    • I thank Omri Ben-Shahar for comments on this point.
  • 361
    • 64949119754 scopus 로고    scopus 로고
    • See Ayres & Madison, supra note 2
    • See Ayres & Madison, supra note 2.
  • 362
    • 64949169095 scopus 로고    scopus 로고
    • See id. at 79-81.
    • See id. at 79-81.
  • 363
    • 64949146459 scopus 로고    scopus 로고
    • See id. at 80 (explaining that, counterintuitively, the defendant is made better off by asking the court to increase the potential damages it must pay and describing the resulting strategic interaction);
    • See id. at 80 (explaining that, counterintuitively, "the defendant is made better off by asking the court to increase the potential damages it must pay" and describing the resulting strategic interaction);
  • 364
    • 64949139512 scopus 로고    scopus 로고
    • Hugh Ward, The Risks of a Reputation for Toughness: Strategy in Public Goods Provision Problems Modelled by Chicken Supergames, 17 BRIT. J. POL. Sci. 33, 39 (1987) (discussing a game of Chicken in which [tjhe steering wheel can be set at various angles, increasing or decreasing the amount that the other party will have to swerve).
    • Hugh Ward, The Risks of a Reputation for Toughness: Strategy in Public Goods Provision Problems Modelled by Chicken Supergames, 17 BRIT. J. POL. Sci. 33, 39 (1987) (discussing a game of Chicken in which "[tjhe steering wheel can be set at various angles," increasing or decreasing the amount that the other party will have to swerve).
  • 365
    • 64949191278 scopus 로고
    • Auctions and Bidding, 25
    • See, e.g
    • See, e.g., R. Preston McAfee & John McMillan, Auctions and Bidding, 25 J. ECON. LIT. 699, 703 (1987).
    • (1987) J. ECON. LIT , vol.699 , pp. 703
    • Preston McAfee, R.1    McMillan, J.2
  • 366
    • 64949085961 scopus 로고    scopus 로고
    • If serious problems rarely emerge under status quo arrangements, the costs of any intervention may exceed the benefits. Of course, there is often disagreement about the frequency and severity of particular dilemmas. For example, compare Brief of Various Law & Economics Professors As Amici Curiae in Support of Respondent at 15-16, eBay, Inc. v. MercExchange, L.L.C., 126 S. Ct. 1837 (2006) (No. 05-130), 2006 WL 639164 (suggesting lack of empirical support for pervasive holdup problems), with Brief Amici Curiae of 52 Intellectual Property Professors in Support of Petitioners at 6, eBay, 126 S. Ct. 1837 (No. 05-130), 2006 WL 1785363 (stating that inappropriate 'holdups' occur on a regular basis under the Federal Circuit's mandatory-injunction standard).
    • If serious problems rarely emerge under status quo arrangements, the costs of any intervention may exceed the benefits. Of course, there is often disagreement about the frequency and severity of particular dilemmas. For example, compare Brief of Various Law & Economics Professors As Amici Curiae in Support of Respondent at 15-16, eBay, Inc. v. MercExchange, L.L.C., 126 S. Ct. 1837 (2006) (No. 05-130), 2006 WL 639164 (suggesting lack of empirical support for pervasive holdup problems), with Brief Amici Curiae of 52 Intellectual Property Professors in Support of Petitioners at 6, eBay, 126 S. Ct. 1837 (No. 05-130), 2006 WL 1785363 (stating that "inappropriate 'holdups' occur on a regular basis under the Federal Circuit's mandatory-injunction standard").
  • 367
    • 84888467546 scopus 로고    scopus 로고
    • notes 228-235 and accompanying text
    • See infra notes 228-235 and accompanying text.
    • See infra
  • 368
    • 0041669218 scopus 로고    scopus 로고
    • Cf. Henry E. Smith, Exclusion Versus Governance: Two Strategies for Delineating Property Rights, 31 J. LEGAL STUD. S453 (2002) (noting the lower informational burdens of exclusion as compared with governance).
    • Cf. Henry E. Smith, Exclusion Versus Governance: Two Strategies for Delineating Property Rights, 31 J. LEGAL STUD. S453 (2002) (noting the lower informational burdens of exclusion as compared with governance).
  • 369
    • 64949181909 scopus 로고    scopus 로고
    • See, e.g, Robinson, supra note 164;
    • See, e.g., Robinson, supra note 164;
  • 371
    • 64949181942 scopus 로고    scopus 로고
    • while it is hard to imagine a law school granting a dispensation to sell one's seat to, say, anyone who possesses a particular LSAT score and undergraduate GPA, this approach could work reasonably well in other settings, such as transmitting one's unused leasehold to a person with a certain credit rating and income level.
    • while it is hard to imagine a law school granting a dispensation to sell one's seat to, say, anyone who possesses a particular LSAT score and undergraduate GPA, this approach could work reasonably well in other settings, such as transmitting one's unused leasehold to a person with a certain credit rating and income level.
  • 372
    • 64949117847 scopus 로고    scopus 로고
    • An extensive literature addresses underground or informal market activity. See, e.g, SUDHIR ALLADI VENKATESH, OFF THE BOOKS: THE UNDERGROUND ECONOMY OF THE URBAN POOR (2006);
    • An extensive literature addresses underground or informal market activity. See, e.g., SUDHIR ALLADI VENKATESH, OFF THE BOOKS: THE UNDERGROUND ECONOMY OF THE URBAN POOR (2006);
  • 373
    • 64949160168 scopus 로고    scopus 로고
    • Symposium, The Informal Economy, 103 YALE L.J. 2119 (1994). Only a subset of underground activity involves goods that cannot legally be sold, and only a subset of that subset involves goods that are the subject of stand-alone alienability limits; many goods that cannot legally be sold (such as illegal drugs) are also illegal to possess or use.
    • Symposium, The Informal Economy, 103 YALE L.J. 2119 (1994). Only a subset of underground activity involves goods that cannot legally be sold, and only a subset of that subset involves goods that are the subject of stand-alone alienability limits; many goods that cannot legally be sold (such as illegal drugs) are also illegal to possess or use.
  • 374
    • 64949127443 scopus 로고    scopus 로고
    • notes 264-66
    • See infra notes 264-66.
    • See infra
  • 375
    • 64949099684 scopus 로고    scopus 로고
    • See Rose-Ackerman, supra note 2, at 939, 946-48
    • See Rose-Ackerman, supra note 2, at 939, 946-48.
  • 376
    • 64949097781 scopus 로고    scopus 로고
    • Id. at 939-40, 946-48;
    • Id. at 939-40, 946-48;
  • 377
    • 64949117169 scopus 로고    scopus 로고
    • cf. Strahilevitz, supra note 140, at 1869-75 (discussing the self- selection induced by exclusionary vibes and exclusionary amenities as alternatives to direct exclusion by a gatekeeper, where potential entrants possess private information that is costly for the gatekeeper to obtain).
    • cf. Strahilevitz, supra note 140, at 1869-75 (discussing the self- selection induced by "exclusionary vibes" and "exclusionary amenities" as alternatives to direct exclusion by a gatekeeper, where potential entrants possess private information that is costly for the gatekeeper to obtain).
  • 378
    • 64949106275 scopus 로고    scopus 로고
    • Ayres & Madison, supra note 2
    • Ayres & Madison, supra note 2.
  • 379
    • 64949121004 scopus 로고    scopus 로고
    • Social norms, rather than legal prohibitions, seem to be doing the work in examples like this one. Not only may people intuitively appreciate the strategic risks of paying a neighbor to stop doing something, offering cash to one's neighbor to stop playing an instrument couples a direct insult with the interjection of money into a setting where it is likely to seem inappropriate. As this example suggests, de facto limits on alienability may already produce some ex ante selection benefits.
    • Social norms, rather than legal prohibitions, seem to be doing the work in examples like this one. Not only may people intuitively appreciate the strategic risks of paying a neighbor to stop doing something, offering cash to one's neighbor to stop playing an instrument couples a direct insult with the interjection of money into a setting where it is likely to seem inappropriate. As this example suggests, de facto limits on alienability may already produce some ex ante selection benefits.
  • 380
    • 64949086237 scopus 로고    scopus 로고
    • To be sure, we could imagine variations on the entitlement regime, such as a learner's permit that allows the poor playing of a musical instrument to continue for only a certain period of time before it becomes enjoinable. Such a regime would be administratively costly, however, and would require difficult qualitative judgments.
    • To be sure, we could imagine variations on the entitlement regime, such as a "learner's permit" that allows the poor playing of a musical instrument to continue for only a certain period of time before it becomes enjoinable. Such a regime would be administratively costly, however, and would require difficult qualitative judgments.
  • 381
    • 84868917556 scopus 로고    scopus 로고
    • See, e.g., Spite Fences, in 9 POWELL ON REAL PROPERTY § 62.05, (Michael Allan Wolf ed., 2008) (noting divided authority on the point, but suggesting that [t]he trend of modern decisions appears to favor the view that a spite fence that serves no useful or beneficial purpose is unlawful);
    • See, e.g., Spite Fences, in 9 POWELL ON REAL PROPERTY § 62.05, (Michael Allan Wolf ed., 2008) (noting divided authority on the point, but suggesting that "[t]he trend of modern decisions appears to favor the view that a spite fence that serves no useful or beneficial purpose is unlawful");
  • 382
    • 0036335875 scopus 로고    scopus 로고
    • The Economics of Enmity, 69
    • noting the varying treatment of spite fences
    • Ward Farnsworth, The Economics of Enmity, 69 U. CHI. l. REV. 211, 234-35 (2002) (noting the varying treatment of spite fences);
    • (2002) U. CHI. l. REV , vol.211 , pp. 234-235
    • Farnsworth, W.1
  • 383
    • 64949112614 scopus 로고    scopus 로고
    • Kelly, supra note 63, at 11-14
    • Kelly, supra note 63, at 11-14.
  • 384
    • 64949196988 scopus 로고    scopus 로고
    • See Farnsworth, supra note 233, at 235 (noting the administrative cost of identifying true spite fences and separating them from the look-alikes).
    • See Farnsworth, supra note 233, at 235 (noting "the administrative cost of identifying true spite fences and separating them from the look-alikes").
  • 385
    • 64949155509 scopus 로고    scopus 로고
    • 23s For an extended treatment of this idea in the blackmail context, see Berman, supra note 64. The same evidentiary argument would explain the Anticybersquatting Consumer Protection Act's inclusion of an offer to sell a domain name among the factors relevant to the bad faith inquiry. See Ned Snow, The Constitutional Failing of the Anticybersquatting Act, 41 WILLAMETTE l. REV. 1, 70 & n.477 (2005) (citing S. REP. NO. 106-140, at 15 (1999)).
    • 23s For an extended treatment of this idea in the blackmail context, see Berman, supra note 64. The same evidentiary argument would explain the Anticybersquatting Consumer Protection Act's inclusion of an offer to sell a domain name among the factors relevant to the bad faith inquiry. See Ned Snow, The Constitutional Failing of the Anticybersquatting Act, 41 WILLAMETTE l. REV. 1, 70 & n.477 (2005) (citing S. REP. NO. 106-140, at 15 (1999)).
  • 386
    • 64949172600 scopus 로고    scopus 로고
    • U.S. 825 (1987). Nollan requires an essential nexus between the purpose of the original restriction and the concession that the landowner provides in exchange for lifting it. Id. at 837-
    • U.S. 825 (1987). Nollan requires an "essential nexus" between the purpose of the original restriction and the concession that the landowner provides in exchange for lifting it. Id. at 837-
  • 387
    • 64949166551 scopus 로고    scopus 로고
    • U.S. 374 (1994). Dolan requires rough proportionality between the landowner's concession and the harms that were addressed by the lifted land use regulation. Id. at 391.
    • U.S. 374 (1994). Dolan requires "rough proportionality" between the landowner's concession and the harms that were addressed by the lifted land use regulation. Id. at 391.
  • 388
    • 0034555479 scopus 로고    scopus 로고
    • See generally, e.g., Lee Anne Fennell, Hard Bargains and Real Steals: Land Use Exactions Revisited, 86 IOWA L. REV. 1 (2000);
    • See generally, e.g., Lee Anne Fennell, Hard Bargains and Real Steals: Land Use Exactions Revisited, 86 IOWA L. REV. 1 (2000);
  • 389
    • 64949099683 scopus 로고    scopus 로고
    • William A. Fischel, The Economics of Land Use Exactions: A Property Rights Analysis, LAW AND CONTEMP. PROBS., Winter 1987, at 101.
    • William A. Fischel, The Economics of Land Use Exactions: A Property Rights Analysis, LAW AND CONTEMP. PROBS., Winter 1987, at 101.
  • 390
    • 64949091532 scopus 로고    scopus 로고
    • For a discussion and critique of this argument, see, for example, Fischel, supra note 238, at 107-08.
    • For a discussion and critique of this argument, see, for example, Fischel, supra note 238, at 107-08.
  • 391
    • 64949156826 scopus 로고    scopus 로고
    • See, e.g., David A. Dana, Land Use Regulation in an Age of Heightened Scrutiny, 75 N.C. L. REV. 1243, 1286-1302 (1997) (discussing circumvention of the Nollan and Dolan bargaining limits).
    • See, e.g., David A. Dana, Land Use Regulation in an Age of Heightened Scrutiny, 75 N.C. L. REV. 1243, 1286-1302 (1997) (discussing circumvention of the Nollan and Dolan bargaining limits).
  • 392
    • 64949105635 scopus 로고    scopus 로고
    • See, e.g, Fennell, supra note 238, at 4-5
    • See, e.g., Fennell, supra note 238, at 4-5.
  • 393
    • 64949153274 scopus 로고    scopus 로고
    • See, e.g, Epstein, supra note 98, at 2093 discussing the risk of undercompensation associated with liability rules
    • See, e.g., Epstein, supra note 98, at 2093 (discussing the risk of undercompensation associated with liability rules).
  • 394
    • 84925977763 scopus 로고
    • Self-Assessed Valuation Systems for Tort and Other Law, 68
    • See, e.g
    • See, e.g., Saul Levmore, Self-Assessed Valuation Systems for Tort and Other Law, 68 VA. L. REV. 771 (1982);
    • (1982) VA. L. REV , vol.771
    • Levmore, S.1
  • 395
    • 64949177116 scopus 로고    scopus 로고
    • see also Michael Abramowicz, The Law-and-Markets Movement, 49 AM. U. L. REV. 327, 364-73, 389, 392-93 (1999);
    • see also Michael Abramowicz, The Law-and-Markets Movement, 49 AM. U. L. REV. 327, 364-73, 389, 392-93 (1999);
  • 396
    • 34147145292 scopus 로고    scopus 로고
    • supra note 193. It would also be possible to use alienability limits as part of a mechanism designed to elicit truthful valuations. See Abraham Bell & Gideon Parchomovsky, Taking Compensation Private, 59
    • combining self-assessed valuation for purposes of eminent domain compensation with restrictions on selling below the self-assessed amount if the government chooses not to go forward with the taking
    • Fennell, supra note 193. It would also be possible to use alienability limits as part of a mechanism designed to elicit truthful valuations. See Abraham Bell & Gideon Parchomovsky, Taking Compensation Private, 59 STAN. L. REV. 871 (2007) (combining self-assessed valuation for purposes of eminent domain compensation with restrictions on selling below the self-assessed amount if the government chooses not to go forward with the taking);
    • (2007) STAN. L. REV , vol.871
    • Fennell1
  • 397
    • 64949084036 scopus 로고    scopus 로고
    • note 47, at, proposing an auction mechanism for allocating contested domain names followed by a two-year period of inalienability
    • Parchomovsky, supra note 47, at 232-36 (proposing an auction mechanism for allocating contested domain names followed by a two-year period of inalienability).
    • supra , pp. 232-236
    • Parchomovsky1
  • 398
    • 64949160170 scopus 로고    scopus 로고
    • See, e.g, Morris, supra note 183, at 842;
    • See, e.g., Morris, supra note 183, at 842;
  • 399
    • 64949150381 scopus 로고    scopus 로고
    • see also CHRISTMAN, supra note 183, at 167 (associating liability rules with a lack of control and explaining that control rights serve autonomy interests).
    • see also CHRISTMAN, supra note 183, at 167 (associating liability rules with a lack of control and explaining that "control rights serve autonomy interests").
  • 400
    • 64949118493 scopus 로고    scopus 로고
    • See Morris, supra note 183, at 842
    • See Morris, supra note 183, at 842.
  • 401
    • 64949093895 scopus 로고    scopus 로고
    • By usual degree of choice I mean the voluntary transfer column in Figure 2, in which the owner and the nonowner must both agree to the transfer. Put options, which permit an owner to force a transfer, represent another alternative and will be discussed below. See infra section III.C.I.
    • By "usual" degree of choice" I mean the "voluntary transfer" column in Figure 2, in which the owner and the nonowner must both agree to the transfer. Put options, which permit an owner to force a transfer, represent another alternative and will be discussed below. See infra section III.C.I.
  • 402
    • 64949089633 scopus 로고    scopus 로고
    • For a discussion of the impact of price caps and similar restrictions on bargaining, see, for example, EPSTEIN, supra note 203, at 57-58; Ayres & Madison, supra note 2, at 103-05.
    • For a discussion of the impact of price caps and similar restrictions on bargaining, see, for example, EPSTEIN, supra note 203, at 57-58; Ayres & Madison, supra note 2, at 103-05.
  • 403
    • 33745962625 scopus 로고    scopus 로고
    • See, e.g., Morris, supra note 183, at 854-56 (discussing put options). Put options may be explicit, as in financial markets, or they may be embedded in background legal rules or contractual arrangements. See, e.g., George S. Geis, An Embedded Options Theory of Indefinite Contracts, 90 MINN. L. REV. 1664 (2006).
    • See, e.g., Morris, supra note 183, at 854-56 (discussing put options). Put options may be explicit, as in financial markets, or they may be embedded in background legal rules or contractual arrangements. See, e.g., George S. Geis, An Embedded Options Theory of Indefinite Contracts, 90 MINN. L. REV. 1664 (2006).
  • 404
    • 0042195345 scopus 로고    scopus 로고
    • In relatively narrow circumstances, persons benefited by the actions of others can be required to compensate the actor. Such a legal rule would grant the actor an embedded put option. Cf. Abraham Bell & Gideon Parchomovsky, Givings, 111
    • explaining how a landowner's liability to the government for favorable governmental actions would effectively grant the government a put option with a nonzero exercise price
    • In relatively narrow circumstances, persons benefited by the actions of others can be required to compensate the actor. Such a legal rule would grant the actor an embedded put option. Cf. Abraham Bell & Gideon Parchomovsky, Givings, 111 YALE L.J. 547, 556-57, 602-03 (2001) (explaining how a landowner's liability to the government for favorable governmental actions would effectively grant the government a put option with a nonzero exercise price).
    • (2001) YALE L.J , vol.547 , Issue.556-557 , pp. 602-603
  • 405
    • 64949183855 scopus 로고    scopus 로고
    • Even gifts require acceptance, although this element may be readily implied. See, e.g., Gruen v. Gruen, 496 N.E. 2d 869, 874-75 (N.Y. 1986) (Acceptance by the donee is essential to the validity of an inter vivos gift, but when a gift is of value to the donee, as it is here, the law will presume an acceptance on his part.). Christman, however, uses the example of gifts to argue that alienation is unilateral and distinguishes it from exchange, which he describes as a contingent and conditional act. CHRISTMAN, supra note 183, at 129. Presumably, this analysis is based on the fact that the overwhelming majority of donees do accept the gifts they are given, although the law does not require them to do so.
    • Even gifts require acceptance, although this element may be readily implied. See, e.g., Gruen v. Gruen, 496 N.E. 2d 869, 874-75 (N.Y. 1986) ("Acceptance by the donee is essential to the validity of an inter vivos gift, but when a gift is of value to the donee, as it is here, the law will presume an acceptance on his part."). Christman, however, uses the example of gifts to argue that "alienation is unilateral" and distinguishes it from "exchange," which he describes as "a contingent and conditional act." CHRISTMAN, supra note 183, at 129. Presumably, this analysis is based on the fact that the overwhelming majority of donees do accept the gifts they are given, although the law does not require them to do so.
  • 406
    • 53849117466 scopus 로고    scopus 로고
    • see also, note 187, at, extrapolating from abandonment to find a unilateral right to transfer property
    • see also PENNER, supra note 187, at 80-87 (extrapolating from abandonment to find a unilateral right to transfer property).
    • supra , pp. 80-87
    • PENNER1
  • 407
    • 84868917557 scopus 로고    scopus 로고
    • I use the term right here in the Hohfeldian sense. See Wesley Newcomb Hohfeld, Some Fundamental Legal Conceptions As Applied in Judicial Reasoning, 23 YALE L.J. 16, 30-36 (1913). Others have made the same point. See, e.g., Rizzolli, supra note 2, at § 3.1 (noting that from a Hohfeldian perspective, under a property rule, the owner does not have the right to sell as there is no corresponding duty of others to buy the entitlement);
    • I use the term "right" here in the Hohfeldian sense. See Wesley Newcomb Hohfeld, Some Fundamental Legal Conceptions As Applied in Judicial Reasoning, 23 YALE L.J. 16, 30-36 (1913). Others have made the same point. See, e.g., Rizzolli, supra note 2, at § 3.1 (noting that from a Hohfeldian perspective, "under a property rule, the owner does not have the right to sell as there is no corresponding duty of others to buy the entitlement");
  • 408
    • 84868930067 scopus 로고    scopus 로고
    • see also HONOŔ, supra note 5, at 173 (In deference to the view that the exercise of a right must depend on the choice of the holder, I have refrained from calling transmissibility a right. (footnote omitted)).
    • see also HONOŔ, supra note 5, at 173 ("In deference to the view that the exercise of a right must depend on the choice of the holder, I have refrained from calling transmissibility a right." (footnote omitted)).
  • 409
    • 64949114565 scopus 로고    scopus 로고
    • See, e.g., PENNER, supra note 187, at 79-80 (discussing the owner's right to cede possession but noting limits on that right, such as those attending the disposal of hazardous wastes);
    • See, e.g., PENNER, supra note 187, at 79-80 (discussing the owner's right to cede possession but noting limits on that right, such as those attending the disposal of hazardous wastes);
  • 410
    • 64349112487 scopus 로고    scopus 로고
    • note 196 examining the right to abandon and limits on it
    • Strahilevitz, supra note 196 (examining the right to abandon and limits on it);
    • supra
    • Strahilevitz1
  • 411
    • 22744444533 scopus 로고    scopus 로고
    • cf. Lior Jacob Strahilev- itz, The Right to Destroy, 114 YALE L.J. 781 (2005) (examining the common law right to destroy and limits on it).
    • cf. Lior Jacob Strahilev- itz, The Right to Destroy, 114 YALE L.J. 781 (2005) (examining the common law right to destroy and limits on it).
  • 412
    • 64949148476 scopus 로고    scopus 로고
    • See, e.g., Abandoned Newborn Infant Protection Act, 325 ILL. COMP. STAT. 2/1-2/70 (2006) (establishing procedures for relinquishing newborn infants, and stating that relinquishment in accordance with the Act creates a rebuttable presumption that the parent consents to termination of parental rights as to that infant).
    • See, e.g., Abandoned Newborn Infant Protection Act, 325 ILL. COMP. STAT. 2/1-2/70 (2006) (establishing procedures for relinquishing newborn infants, and stating that relinquishment in accordance with the Act creates a rebuttable presumption that the parent consents to termination of parental rights as to that infant).
  • 413
    • 64949117196 scopus 로고    scopus 로고
    • See, e.g., Lewinsohn-Zamir, supra note 22, at 650-60, 681-83 (discussing use it or lose it provisions and the inertia to which they respond).
    • See, e.g., Lewinsohn-Zamir, supra note 22, at 650-60, 681-83 (discussing "use it or lose it" provisions and the inertia to which they respond).
  • 414
    • 64949132383 scopus 로고    scopus 로고
    • Explicit put options may also be useful in reducing deadweight losses in settings where serious impediments to marketability exist. For example, consider the practice of offering a household going through foreclosure a lump sum if they leave the home behind in good condition
    • Explicit put options may also be useful in reducing deadweight losses in settings where serious impediments to marketability exist. For example, consider the practice of offering a household going through foreclosure a lump sum if they leave the home behind in good condition.
  • 415
    • 64949115202 scopus 로고    scopus 로고
    • See Michael M. Phillips, Buyers' Revenge: Trash the House After Foreclosure, WALL ST. J., Mar. 28, 2008, at Ai (discussing the cash for keys approach, in which homeowners are paid hundreds or even thousands of dollars to put their anger in escrow and leave quietly).
    • See Michael M. Phillips, Buyers' Revenge: Trash the House After Foreclosure, WALL ST. J., Mar. 28, 2008, at Ai (discussing the "cash for keys" approach, in which homeowners are paid "hundreds or even thousands of dollars to put their anger in escrow and leave quietly").
  • 416
    • 64949194027 scopus 로고    scopus 로고
    • See Franklyn, supra note 199, at 1277-78
    • See Franklyn, supra note 199, at 1277-78.
  • 418
    • 64949178393 scopus 로고    scopus 로고
    • Cf. L.S. PARSONS, MANAGEMENT OF MARINE FISHERIES IN CANADA 191 (1993) (discussing the use of fishing license buyback programs to address overcapacity problems).
    • Cf. L.S. PARSONS, MANAGEMENT OF MARINE FISHERIES IN CANADA 191 (1993) (discussing the use of fishing license buyback programs to address overcapacity problems).
  • 419
    • 64949130578 scopus 로고    scopus 로고
    • See, e.g., Richard A. Epstein, Commentary, Protecting Property Rights with Legal Remedies: A Common Sense Reply to Professor Ayres, 32 VAL. U. L. REV. 833, 844 (1998) (discussing the perverse incentive to pollute that would exist under a put option regime in which parties are paid to stop polluting).
    • See, e.g., Richard A. Epstein, Commentary, Protecting Property Rights with Legal Remedies: A Common Sense Reply to Professor Ayres, 32 VAL. U. L. REV. 833, 844 (1998) (discussing the perverse incentive to pollute that would exist under a put option regime in which parties are paid to stop polluting).
  • 420
    • 64949096579 scopus 로고    scopus 로고
    • For example, some states and localities have begun experimenting with buybacks of environmentally harmful older cars, although careful design is necessary to make sure people do not resurrect dinosaurs from junkyards just to claim the payment. See Alan S. Blinder, A Modest Proposal: Eco-Friendly Stimulus, N.Y. TIMES, July 27, 2008, at 5 (explaining that a Cash for Clunkers program might specify that only vehicles that had been registered and driven for, say, the past year would be eligible).
    • For example, some states and localities have begun experimenting with buybacks of environmentally harmful older cars, although careful design is necessary to make sure people do not resurrect dinosaurs from junkyards just to claim the payment. See Alan S. Blinder, A Modest Proposal: Eco-Friendly Stimulus, N.Y. TIMES, July 27, 2008, at 5 (explaining that a "Cash for Clunkers" program might specify that "only vehicles that had been registered and driven for, say, the past year would be eligible").
  • 421
    • 64949117170 scopus 로고    scopus 로고
    • See Ayres, supra note 96, at 808 ([Ujnder a call option, the fate of the initial entitlement's holder is decided by the other side, but under a put option, the initial entitlement holder decides her own fate ).
    • See Ayres, supra note 96, at 808 ("[Ujnder a call option, the fate of the initial entitlement's holder is decided by the other side, but under a put option, the initial entitlement holder decides her own fate ").
  • 422
    • 84980096808 scopus 로고
    • Counterspeculation, Auctions, and Competitive Sealed Tenders, 16
    • See
    • See William Vickrey, Counterspeculation, Auctions, and Competitive Sealed Tenders, 16 J. FIN. 8, 20-21 (1961).
    • (1961) J. FIN , vol.8 , pp. 20-21
    • Vickrey, W.1
  • 423
    • 64949143036 scopus 로고    scopus 로고
    • See id. at 20
    • See id. at 20.
  • 424
    • 84868930064 scopus 로고    scopus 로고
    • See id. at 20-21 (observing that, in the absence of collusion, the optimal strategy for each bidder. will obviously be to make his bid equal to the full value of the article or contract to himself and explaining why higher or lower bids would not be rational). But see, e.g., John h. Kagel, Auctions: A Survey of Experimental Research, in THE HANDBOOK OF EXPERIMENTAL ECONOMICS 501, 508-11, 513 (John h. Kagel & Alvin e. Roth eds., 1995) (discussing experimental results showing bids above the dominant strategy price in second-price auctions, but finding that a larger proportion of second-price than first-price sealed bids are within $.05 of true valuations);
    • See id. at 20-21 (observing that, in the absence of collusion, "the optimal strategy for each bidder. will obviously be to make his bid equal to the full value of the article or contract to himself and explaining why higher or lower bids would not be rational). But see, e.g., John h. Kagel, Auctions: A Survey of Experimental Research, in THE HANDBOOK OF EXPERIMENTAL ECONOMICS 501, 508-11, 513 (John h. Kagel & Alvin e. Roth eds., 1995) (discussing experimental results showing bids above the "dominant strategy price" in second-price auctions, but finding that a larger proportion of second-price than first-price sealed bids are within $.05 of true valuations);
  • 425
    • 64949100257 scopus 로고    scopus 로고
    • Jack L. Knetsch et al., The Endowment Effect and Repeated Market Trials: Is the Vickrey Auction Demand Revealing?, 4 EXPERIMENTAL ECON. 257 (2001) (questioning, based on experiments with second- and ninth-price auctions, the demand-revealing properties of Vickrey auctions). For a discussion of second-price auctions and similar mechanisms, see, for example, Parchomovsky, supra note 47.
    • Jack L. Knetsch et al., The Endowment Effect and Repeated Market Trials: Is the Vickrey Auction Demand Revealing?, 4 EXPERIMENTAL ECON. 257 (2001) (questioning, based on experiments with second- and ninth-price auctions, the demand-revealing properties of Vickrey auctions). For a discussion of second-price auctions and similar mechanisms, see, for example, Parchomovsky, supra note 47.
  • 426
    • 64949204310 scopus 로고    scopus 로고
    • See Vickrey, supra note 262, at 28;
    • See Vickrey, supra note 262, at 28;
  • 427
    • 64949106886 scopus 로고    scopus 로고
    • see also McAfee & McMillan, supra note 220, at 707-11 (discussing the Revenue-Equivalence Theorem and its dependence on certain benchmark assumptions).
    • see also McAfee & McMillan, supra note 220, at 707-11 (discussing the "Revenue-Equivalence Theorem" and its dependence on certain "benchmark" assumptions).
  • 428
    • 64949190670 scopus 로고    scopus 로고
    • See Vickrey, supra note 262, at 28 (suggesting that switching to the first-rejected-bid pricing of a second-price auction could achieve gains from the greater certainty of obtaining a Pareto-optimal result and from the reduction in non-productive expenditure devoted to the sizing- up of the market by the bidders). Measures would be necessary to control the risk of false second bids by those colluding with the seller.
    • See Vickrey, supra note 262, at 28 (suggesting that switching to the "first-rejected-bid" pricing of a second-price auction could achieve gains from "the greater certainty of obtaining a Pareto-optimal result and from the reduction in non-productive expenditure devoted to the sizing- up of the market by the bidders"). Measures would be necessary to control the risk of false "second bids" by those colluding with the seller.
  • 429
    • 64949136885 scopus 로고    scopus 로고
    • See id. at 22 (To prevent the use of a 'shill' to jack the price up by putting in a late bid just under the top bid, it would probably be desirable to have all bids delivered to and certified by a trustworthy holder, who would then deliver all bids simultaneously to the seller.).
    • See id. at 22 ("To prevent the use of a 'shill' to jack the price up by putting in a late bid just under the top bid, it would probably be desirable to have all bids delivered to and certified by a trustworthy holder, who would then deliver all bids simultaneously to the seller.").
  • 430
    • 64949128121 scopus 로고    scopus 로고
    • See, e.g., Berman, supra note 64, at 857 (describing market price blackmail as one of the most complex riddles within the blackmail puzzle);
    • See, e.g., Berman, supra note 64, at 857 (describing "market price blackmail" as "one of the most complex riddles within the blackmail puzzle");
  • 432
    • 64949180935 scopus 로고    scopus 로고
    • See Hardin, supra note 101, at 1806
    • See Hardin, supra note 101, at 1806.
  • 433
    • 64949103351 scopus 로고    scopus 로고
    • For a detailed argument that such blackmail fits within the framework of mutual advantage, see id. at 1803-09.
    • For a detailed argument that such blackmail fits within the framework of mutual advantage, see id. at 1803-09.
  • 434
    • 85050788622 scopus 로고
    • Blackmailers, Bribe Takers, and the Second Paradox, 141
    • See, e.g
    • See, e.g., Sidney W. DeLong, Blackmailers, Bribe Takers, and the Second Paradox, 141 U. PA. L. REV. 1663, 1675-77 (1993);
    • (1993) U. PA. L. REV , vol.1663 , pp. 1675-1677
    • DeLong, S.W.1
  • 435
    • 64949095392 scopus 로고    scopus 로고
    • Hardin, supra note 101, at 1806
    • Hardin, supra note 101, at 1806.
  • 436
    • 64949124412 scopus 로고    scopus 로고
    • nozick, supra note 62, at 85-86
    • nozick, supra note 62, at 85-86.
  • 437
    • 64949186413 scopus 로고    scopus 로고
    • See, e.g., DeLong, supra note 270, at 1675-76. Some difficulties, such as the problem of defining what the parties are bidding on without giving away the information itself, would remain.
    • See, e.g., DeLong, supra note 270, at 1675-76. Some difficulties, such as the problem of defining what the parties are bidding on without giving away the information itself, would remain.
  • 438
    • 0346617986 scopus 로고    scopus 로고
    • See, e.g, id, Richard H. McAdams, Group Norms, Gossip, and Blackmail, 144 U. PA. L. REV. 2237, 2272-77 1996, In addition, such an auction would only offer a workable solution in instances in which the information is fully controlled by a single blackmailer; otherwise, it would not be within the power of the blackmailer to convey the information to the high-bidding blackmailee in a way that would truly take it off the market. I thank Stephanie Stern for this point. Because the blackmailer's ability to deliver an exclusive to a tabloid is likely the source of any significant market potential for the information in the first place, however, the second-price solution could work well in many market price blackmail situations
    • See, e.g., id.; Richard H. McAdams, Group Norms, Gossip, and Blackmail, 144 U. PA. L. REV. 2237, 2272-77 (1996). In addition, such an auction would only offer a workable solution in instances in which the information is fully controlled by a single blackmailer; otherwise, it would not be within the power of the blackmailer to "convey" the information to the high-bidding blackmailee in a way that would truly take it off the market. I thank Stephanie Stern for this point. Because the blackmailer's ability to deliver an "exclusive" to a tabloid is likely the source of any significant market potential for the information in the first place, however, the second-price solution could work well in many "market price blackmail" situations.
  • 439
    • 64949127529 scopus 로고    scopus 로고
    • The domain name vw.net was at issue in Virtual Works, Inc. v. Volkswagen of America, Inc., 238 F. 3d 264 (4th Cir. 2001).
    • The domain name "vw.net" was at issue in Virtual Works, Inc. v. Volkswagen of America, Inc., 238 F. 3d 264 (4th Cir. 2001).
  • 440
    • 64949159566 scopus 로고    scopus 로고
    • Gideon Parchomovsky has also proposed using an auction mechanism to resolve disputes over domain names. Parchomovsky, supra note 47, at 229-40. Significantly, his proposal would allow a trademark holder to force a domain name owner to participate in a process which could involuntarily divest the owner of the entitlement (with compensation at the level bid by the owner). Id. at 232-33. His proposal (which also differs from mine in a number of other respects) thus represents a type of contingent liability rule in which control over the fact of the transfer itself depends on who turns out to be the high bidder. The idea of using auctions to assign domain names in the first instance has also been explored.
    • Gideon Parchomovsky has also proposed using an auction mechanism to resolve disputes over domain names. Parchomovsky, supra note 47, at 229-40. Significantly, his proposal would allow a trademark holder to force a domain name owner to participate in a process which could involuntarily divest the owner of the entitlement (with compensation at the level bid by the owner). Id. at 232-33. His proposal (which also differs from mine in a number of other respects) thus represents a type of contingent liability rule in which control over the fact of the transfer itself depends on who turns out to be the high bidder. The idea of using auctions to assign domain names in the first instance has also been explored.
  • 441
    • 64949170695 scopus 로고    scopus 로고
    • See Karl M. Manheim & Lawrence B. Solum, An Economic Analysis of Domain Name Policy, 25 HASTINGS COMM. & ENT. L.J. 359, 459-86 (2003).
    • See Karl M. Manheim & Lawrence B. Solum, An Economic Analysis of Domain Name Policy, 25 HASTINGS COMM. & ENT. L.J. 359, 459-86 (2003).
  • 442
    • 64949122260 scopus 로고    scopus 로고
    • See Stephen E. SACHS, Saving Toby: Extortion, Blackmail, and the Right To Destroy, 24 YALE L. & POL'Y REV. 251 (2006).
    • See Stephen E. SACHS, Saving Toby: Extortion, Blackmail, and the Right To Destroy, 24 YALE L. & POL'Y REV. 251 (2006).
  • 443
    • 11844298425 scopus 로고    scopus 로고
    • See Ronen Avraham, Modular Liability Rules, 24 INT'L REV. L. & ECON. 269 (2004) (describing modular liability rules);
    • See Ronen Avraham, Modular Liability Rules, 24 INT'L REV. L. & ECON. 269 (2004) (describing "modular liability rules");
  • 444
    • 64949184483 scopus 로고    scopus 로고
    • Ayres & Goldbart, supra note 192, at 9-10, 34-37 (describing dual-chooser rules). These authors introduce rules constructed from call and put options that give both parties a say in whether a particular remedy will apply. Although consistently described as liability rules, the resulting arrangements are the functional equivalent of granting one party an entitlement that may be voluntarily transferred, subject to an alienability limit in the form of a mandatory, nonnegotiable price. For example, the defendant-presumption variety of dual-chooser rule specifies that the defendant receives the entitlement (say, to continue operating her factory) unless both parties agree that it should be transferred to the plaintiff upon payment of an amount specified by the court.
    • Ayres & Goldbart, supra note 192, at 9-10, 34-37 (describing "dual-chooser rules"). These authors introduce rules constructed from call and put options that give both parties a say in whether a particular remedy will apply. Although consistently described as "liability rules," the resulting arrangements are the functional equivalent of granting one party an entitlement that may be voluntarily transferred, subject to an alienability limit in the form of a mandatory, nonnegotiable price. For example, the "defendant-presumption" variety of "dual-chooser rule" specifies that the defendant receives the entitlement (say, to continue operating her factory) unless both parties agree that it should be transferred to the plaintiff upon payment of an amount specified by the court.
  • 445
    • 64949195272 scopus 로고    scopus 로고
    • See Ayres & Goldbart, supra note 192, at 34. A converse rule would presumptively grant the entitlement to the plaintiff (say, to have the factory shut down) but would specify that if both parties agree, the entitlement will be transferred to the defendant at the preset damages price selected by the court.
    • See Ayres & Goldbart, supra note 192, at 34. A converse rule would presumptively grant the entitlement to the plaintiff (say, to have the factory shut down) but would specify that if both parties agree, the entitlement will be transferred to the defendant at the preset damages price selected by the court.
  • 446
    • 64949153302 scopus 로고    scopus 로고
    • See Avraham, supra, at 297 (providing an example of how a court's instructions to the parties might be formulated under such a rule).
    • See Avraham, supra, at 297 (providing an example of how a court's instructions to the parties might be formulated under such a rule).
  • 447
    • 0346511083 scopus 로고    scopus 로고
    • Again, the analogy to liability rules is instructive. In addition to examining liability rules as mandatory legal rules, scholars have explored the potential of opt-in regimes featuring such rules. See, e.g., Robert R Merges, Contracting into Liability Rules: Intellectual Property Rights and Collective Rights Organizations, 84 CAL. L. REV. 1293 (1996).
    • Again, the analogy to liability rules is instructive. In addition to examining liability rules as mandatory legal rules, scholars have explored the potential of opt-in regimes featuring such rules. See, e.g., Robert R Merges, Contracting into Liability Rules: Intellectual Property Rights and Collective Rights Organizations, 84 CAL. L. REV. 1293 (1996).


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