The illusory right to abandon

Michigan Law Review

Volumn 109, Issue 2, 2010, Pages 191-220

  Peñalver, Eduardo M ^a  

^a MIT Sloan School of Management

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EID: 78149457434     PISSN: 00262234     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Note

References (147)

1. See A. James Casner et al., Cases and Text on Property 91 (5th ed. 2004)
2. Jesse Dukeminier et al., Property 106, 793-96 (6th ed. 2006)
3. Joseph William Singer, Property Law 92-97 (4th ed. 2006).
4. See James W. Simonton, Abandonment of Interests in Land, 25 Ill. L. Rev. 261 (1930)
5. Lior Jacob Strahilevitz, The Right to Abandon, 158 U. Pa. L. Rev. 355 (2010).
6. See Long v. Dilling Mech. Contractors, 705 N.E.2d 1022, 1025 (Ind. Ct. App. 1999) (discussed in Strahilevitz, supra note 2, at 392-94).
7. Libertarian and "classical liberal" property theorists in particular have frequently argued that the common law robustly protects negative liberty, particularly the right to exclude. See, e.g., Richard A. Epstein, Takings 57-62, 65 (1985)
8. ("[E]ach person can do with his own land what he pleases so long as he does not physically invade the land of another."). Epstein refers to himself as a "classical liberal," as opposed to libertarian, property theorist, because he thinks private property rights can be overcome in order to achieve Pareto superior outcomes, provided that the owner is fully compensated for the nonconsensual loss of his property rights. See Richard A. Epstein, Decentralized Responses to Good Fortune and Bad Luck, 9 Theoretical Inquiries L. 309, 316-19 (2008).
9. See Larissa Katz, Exclusion and Exclusivity in Property Law, 58 U. Toronto L.J. 275, 277 & nn.6-8 (2008) (describing the "boundary approach" understanding of ownership and collecting sources). Exclusion theories of property can rest on underpinnings that are either conceptual
10. see, e.g., J.E. Penner, The Idea of Property In Law (1997), or utilitarian
11. see, e.g., Thomas W. Merrill & Henry E. Smith, What Happened to Property in Law and Economics?, 111 Yale L.J. 357, 363 (2001)
12. Henry E. Smith, Property and Property Rules, 79 N.Y.U. L. Rev. 1719, 1719, 1753-90 (2004)
13. Exclusion theories constitute a somewhat broader category than the approaches to property I have grouped under the rubric of "property as exit," but the two categories share a great deal. See generally Eduardo M. Peñalver, Property as Entrance, 91 Va. L. Rev. 1889 (2005).
14. They also coincide with what Laura Underkuffler has called "property as protection." Laura S. Underkuffler, The Idea of Property 38 (2003).
15. See, e.g., Henry E. Smith, Exclusion and Property Rules in the Law of Nuisance, 90 Va.
16. L. Rev. 965, 970-71 (2004) (arguing both that "nuisance law rests on a foundation of exclusionary property rights" and that building nuisance law around such an exclusion logic is efficient because it economizes on information costs)
17. Thomas W. Merrill, Property and the Right to Exclude, 77 Neb. L. Rev. 730, 740-47 (1998).
18. Penner, supra note 5, at 79.(The Idea of Property In Law (1997), or utilitarian)
19. See Larissa Katz, Governing Through Owners 4-5 (unpublished manuscript, on file with author), available at http://law.anu.edu.au/news/Katz_Abstract.pdf (abstract only).
20. See, e.g., Trenolone v. Cook Exploration Co., 166 S.W.3d 495, 500-01 (Tex. App. 2005)
21. ("[A]bandonment means the relinquishment of the possession of a thing by the owner with the intention of terminating his ownership, but without vesting it in any one else. Abandoned personalty is no man's property until reduced to possession with intent to acquire title.") (internal quotation marks and citation omitted) (quoting Gregg v. Caldwell-Guadalupe Pick-Up Stations, 286 S.W. 1083, 1084 (Tex. Comm'n App. 1926))
22. Terry v. Lock, 37 S.W.3d 202, 206 (Ark. 2001)
23. Long v. Dilling Mech. Contractors, 705 N.E.2d 1022, 1025 (Ind. Ct. App. 1999) ("Abandonment of property divests the owner of his ownership, so as to bar him from further claim to it. Except that he, like anyone else, may appropriate it once it is abandoned if it has not already been appropriated by someone else.") (quoting Schuler v. Langdon, 433 N.E.2d 841, 842 n.1 (Ind. Ct. App. 1982).
24. Each of the cases cited supra note 9 fits this pattern of parties using the law of abandonment to defend their own claim to superior rights of ownership rather than to successfully disclaim property.
25. See Strahilevitz, supra note 2, at 360 (discussing the importance of abandonment's unilateral nature). The Right to Abandon, 158 U. Pa. L. Rev. 355 (2010) 12. See infra Section I.B. For one (fairly trivial) exception to this, see infra note 53.
26. See Randy E. Barnett, Restoring the Lost Constitution 264-66 (2004)
27. Epstein, supra note 4, at 35-36
28. see also Lucas v. S.C. Coastal Council, 505 U.S. 1003 (1992).
29. John G. Sprankling, Understanding Property Law § 4.03[B][1] (2000).
30. See, e.g., Haslem v. Lockwood, 37 Conn. 500 (1871).
31. See, e.g., Lady v. Realty Assocs., 31 A.2d 875 (D.C. 1943). The Uniform Commercial Code provides some protection for downstream, good faith purchasers of property procured through fraud. See U.C.C. § 2-403 (2003).
32. Penner, supra note 5, at 79.
33. E.g., 11 Thompson on Real Property § 91.07 (David A. Thomas ed., 2d ed. 2002)
34. see also Routh Wrecker Serv. v. Wins, 847 S.W.2d 707, 709 (Ark. 1993). The intent to abandon must coincide with the physical separation, but the two do not need to begin simultaneously. See Thompson on Real Property, supra.
35. Cf. Savage Lateral Ditch Water Users Ass'n v. Pulley, 869 P.2d 554, 567 (Idaho 1993) ("Abandonment of any right is dependent upon a finding of an intent to abandon evidenced by a clear, unequivocal and decisive act of the alleged abandoning party.").
36. See Philip Mechem, The Requirement of Delivery in Gifts of Chattels and of Choses in Action Evidenced by Commercial Instruments, 21 Ill. L. Rev. 341, 348-49 (1926). The importance of the abandoner's intent derives from the need to keep abandonment conceptually distinct from other mechanisms of terminating ownership rights, such as forfeiture and conveyances. See infra Section II.B. E.g., Thompson on Real Property, supra note 18.
37. This is the insight behind the famous (or, depending on your point of view, infamous) doctrine of double effect. For a discussion of the doctrine by one of its leading supporters, see, for example, Joseph M. Boyle, Jr., Toward Understanding the Principle of Double Effect, 90 Ethics 527 (1980).
38. See Strahilevitz, supra note 2, at 360. The Right to Abandon, 158 U. Pa. L. Rev. 355 (2010)
39. Gruen v. Gruen, 496 N.E.2d 869, 872-74 (N.Y. 1986) Speelman v. Pascal, 178 N.E.2d 723, 726 (N.Y. 1961)
40. Irons v. Smallpiece, (1819) 106 Eng. Rep. 467, 469 (K.B.).
41. If the item has some value, this is usually not a difficult requirement to satisfy. Indeed, courts often presume it to be satisfied. See Scherer v. Hyland, 380 A.2d 698, 702 (N.J. 1977)
42. Gruen, 496 N.E.2d at 874-75. Donees might conceivably refuse even valuable gifts, however, in order to avoid taxes or frustrate their creditors. Sprankling, supra note 14, § 5.03[D] n.27. However easily satisfied, the requirement is crucial in distinguishing gifts, which are a conveyance, from abandonment, which is a unilateral act destroying the bonds of ownership.
43. For a concise overview of the law of civil and criminal forfeiture, see Singer, supra note 1, at 632-35. See Restatement of Property § 56 (1936).
44. See, e.g., Mahrenholz v. County Bd. of Sch. Trs., 417 N.E.2d 138, 140-41 (Ill. App. Ct. 1981).
45. Cf. Larissa Katz, A Powers-Based Approach to the Protection of Ideas, 23 Cardozo Arts & Ent. L.J. 687, 716-23 (2006) (discussing the concept of "powers" within the intellectual property context).
46. Cristofani v. Bd. of Educ., 632 A.2d 447, 450 (Md. Ct. Spec. App. 1993)
47. Waldrop v. Whittington, 57 So.2d 298, 300 (Miss. 1952); 2 American Law of Property § 8.98, at 304 (A. James Casner ed., 1952).
48. At least one commentator has argued that the common law does not in fact restrict the abandonment of possessory interests in land. James Kerr's 1895 work, A Treatise on the Law of Real Property, asserts that "[i]t is a well-known principle of law that every owner of property, whether personal or real, may abandon it."
49. James M. Kerr, A Treatise on the Law of Real Property § 2276, at 2303 (1895). There appears to be no basis for Kerr's unorthodox characterization of the law, and the consensus of courts and commentators is directly to the contrary.
50. See Simonton, supra note 2, at 263. (Abandonment of Interests in Land, 25 Ill. L. Rev. 261 (1930))
51. But see Sharpp v. Stodghill, 86 S.W.2d 934, 935-36 (Ark. 1935).
52. See Sprankling, supra note 14, at 286. (Understanding Property Law)
53. See Restatement (Third) of Prop.: Servitudes § 7.4 (2000).
54. Strahilevitz goes even further and argues that it is not abandonment at all. Strahilevitz, supra note 2, at 399 n.186.
55. Emory Washburn, A Treatise on the American Law of Real Property 317 (John Wurts ed., 6th ed. 1902).
56. There is no "efficient breach" in the law of servitudes, and traditionally, doctrines like "changed conditions," which permit courts to modify or terminate some servitudes that outlive their usefulness, have not applied to many types of servitudes, most importantly easements. E.g., AKG Real Estate, L.L.C. v. Kosterman, 717 N.W.2d 835 (Wis. 2006)
57. See also Richard A. Epstein, Notice and Freedom of Contract in the Law of Servitudes, 55 S. Cal. L. Rev. 1353, 1364-68 (1982)
58. Stewart E. Sterk, Freedom from Freedom of Contract: The Enduring Value of Servitude Restrictions, 70 Iowa L. Rev. 615, 652-54 (1985).
59. Dukeminier et al., supra note 1, at 34-35. Property 106, 793-96 (6th ed. 2006)
60. Samuel C. Wiel, Water Rights in the Western States § 861 (3d ed. 1911). The abandonment of water is actually complicated by rules governing the release of surface waters across property lines, rules that vary a great deal from jurisdiction to jurisdiction.
61. See Singer, supra note 1, at 128-31 (discussing the doctrines of "natural flow," "common enemy," and "reasonable use").
62. Utt v. Frey, 39 P. 807, 809 (Cal. 1895), quoted in 2 Wells A. Hutchins, Water Rights Laws in the Nineteen Western States 258 (1974).
63. Simonton, supra note 2, at 272-75.
64. See 2 William Blackstone, Commentaries *9-10.
65. Simonton, supra note 2, at 262., American Law of Property, supra note 31
66. Restatement (Third) of Prop.: Servitudes § 7.4 cmt. a (2000).
67. James C. Roberton, Recent Development, Abandonment of Mineral Rights
68. Stan. L. Rev. 1227, 1228 n.13 (1969)
69. Strahilevitz, supra note 2, at 399.
70. Strahilevitz, supra note 2, at 412-19.
71. E.g., Thomas W. Merrill & Henry E. Smith, Property: Principles and Policies 521-22 (2007) (characterizing the prohibition of abandonment of land as "a little odd" and assessing various possible justifications for it).
72. It is of course possible that land might be owned by someone who is not aware that he is the owner, perhaps as a consequence of the operation of intestacy statutes. In such cases, the doctrine of adverse possession helps, over time, to bring formal title into line with the actual people on hand to make use of (and care for) the land.
73. This abandonment scenario does not raise the same question addressed under the rubric of "constructive possession" by courts when there is a conflict between the finder of a chattel and the owner of the premises where the chattel is found. E.g., Parker v. British Airways Bd., (1982) 1 Q.B. 1004
74. Bridges v. Hawkesworth, (1851) 21 L.J. Rep. 75 (Q.B.); South Staffordshire Water Co.
75. v. Sharman, (1896) 2 Q.B. 44.
76. An exception to this generalization would be wild animals indigenous to the area that the landowner had previously captured. As long as it was not in the habit of voluntarily remaining on (or returning to) the landowner's land, such an animal would remain the landowner's property only so long as it was in his possession. If the landowner were to release such a wild animal on his own land, the animal would be free to roam off the landowner's property and would become unowned property subject to appropriation by another person. See, e.g., E.A. Stephens & Co. v. Albers, 256 P. 15 (Colo. 1927). I am grateful to Rachel Moran for bringing this exception to my attention.
77. See, e.g., Breiggar Props., L.C. v. H.E. Davis & Sons, Inc., 52 P.3d 1133, 1135-36 (2002), See, e.g., Eno v. Christ, 54 N.Y.S. 400, 401 (N.Y. Sup. Ct. 1898).
78. See, e.g., Delaware State Parks Carry In-Carry Out Rules, http://www.destateparks.com/rules/cico.asp (last visited May 24, 2010)
79. New Jersey Department of Environmental Protection, http://www.state.nj.us/dep/parksandforests/parks/index.html (last visited May 13, 2010)
80. Wisconsin Department of Natural Resources, http://www.dnr.state.wi.us/org/LAND/parks/picnic/carryout.htm (last visited May 13, 2010)
81. News Release, Florida Fish and Wildlife Commission, FWC removes junked, abandoned vessels from state's waters (Apr. 8, 2009), http://myfwc.com/newsroom/09/statewide/News_09_X_Derelict.htm. Owners who fail to remove their vessel can be charged with a criminal violation and required to pay the cost of the vessel's removal. Id.
82. see also Fla. Stat. § 823.11(4) (2008) (making it illegal to deposit a derelict vessel in state waters without state authorization or on private property without the consent of the private landowner); cf. Or. Rev. Stat. § 830.909(1) (2009) ("A person commits the offense of abandoning a boat, floating home or boathouse if the person leaves a boat, floating home or boathouse on the waters of this state or upon any public or private property except with the permission of the property owner....").
83. For the full policy, see Ann Arbor PTO Thrift Shop, http://a2ptothriftshop.org/donate.php (last visited May 13, 2010).
84. The solid waste facility serving Tompkins County, New York, for example, will only accept limited quantities of pesticides, and by appointment only. Other items, such as computers, are not permitted to be disposed of with normal household solid waste, but must be recycled. For more information on the intricate nature of the county's permission to dispose of unwanted chattels at its solid waste facility, see Tompkins County Recycling and Solid Waste, http:// www.recycletompkins.org/products/ (last visited May 13, 2010).
85. In Sweden, for example, landowners' right to exclude is limited by the so-called alle-mansrätt, or "everyman's right" to roam over the countryside in ways that do not damage the land, intrude on privacy, or interfere with the uses to which the owner has chosen to put her land. See Ariane Sains, Mushroom Mania Tests the Bounds of Allemansrätt, Europe, June 2002, at 44 (discussing how the allemansrätt permits people to enter private property for recreational purposes but not to leave behind piles of garbage).
86. This substantial qualification of owners' power to exclude is consistent with exactly the same limitations on the permanent deposit of chattels on land belonging to another necessary to support my claims concerning the limited scope of the power to abandon chattels. 272 U.S. 365 (1926).
87. See, e.g., Brainard v. Town of W. Hartford, 103 A.2d 135, 136 (Conn. 1954). Contemporary land-use regulations impose even further restrictions on willing landowners' ability to accept abandoned personal property. These include zoning ordinances, solid waste permit requirements, and countless laws concerning the proper handling and disposal of hazardous waste. These public laws governing landowner conduct further (though indirectly) limit the options available to someone wishing to abandon an item of personal property.
88. Again, I am not focusing here on the existence of property that is, de facto, abandoned or derelict. Depositing unwanted personal property on a piece of land whose owner is derelict remains unlawful, though it is unlikely to yield any penalties against the person who engages in it. This is an important phenomenon, and one of which the law of abandonment (or, perhaps, the state's policies towards abandonment) should take cognizance.
89. This contention does not, of course, apply to chattels deposited or lost at sea. See, e.g., R.M.S. Titanic v. The Wrecked and Abandoned Vessel, 435 F.3d 521, 532 (4th Cir. 2006) (discussing the abandonment of personal property lost at sea)
90. Hener v. United States, 525 F. Supp. 350 (S.D.N.Y. 1981) (same). But, for most owners, I do not take it to be a significant qualification of my contention that the power to abandon chattels is largely illusory to admit that one has to go offshore in order to exercise it. The difficulty of hauling unwanted property offshore is not a universal deterrent, however. And in fact, in the late 19th century, ocean dumping was a favorite way for New York City to dispose of solid waste.
91. See Martin V. Melosi, Garbage in the Cities 34-35 (rev'd ed. 2005).
92. See, e.g., California v. Greenwood, 486 U.S. 35, 49 n.2 (1988) (Brennan, J., dissenting). As in the "ownership" cases discussed below, the Fourth Amendment cases invariably involve situations in which the original owner seeks to retain ownership of the chattel. Thus, like those ownership cases, these "privacy" cases do not clearly concern the prospective "power" of owners to abandon unwanted chattels.
93. See, e.g., Chance v. Certain Artifacts Found and Salvaged from the Nashville, 606 F. Supp. 801 (S.D. Ga. 1984) (dispute between finder of shipwreck and owner of land in which wreck was embedded)
94. Terry v. Lock, 37 S.W.3d 202 (Ark. 2001) (dispute between finder and hotel owner over found stash of money).
95. See Comment, Lost, Mislaid, and Abandoned Property, 8 Fordham L. Rev. 222, 224-28 (1939).
96. See supra note 57 and accompanying text. Even in civil law countries, where the abandonment of land is said to be freely permitted, abandonment often does not necessarily result in the land being declared terra nullius, but rather in the state's ownership of the land. In Québec, the Civil Code makes the state the owner of abandoned land. Civil Code du Québec [C.C.Q.] art. 936 (Can.). The same rule holds in Argentina and Chile. Código Civil [Cód. Civ.] art. 2376 (Arg.), translated in The Argentine Civil Code (Frank L. Joannini trans., 1917) ("All lands which, being situated within the territorial limits of the Republic, have no other owner [are the private property of the general State or of the individual States]."); Código Civil [Cód. Civ.] art. 590 ("Son bienes del Estado todas las tierras que, estando situadas dentro de los límites territoriales, carecen de otro dueño.") (Chile), translated in Civil Code of Chile (Julio Romañach, Jr. trans., 2008) ("Lands located within the territorial limits of the country having no other owner are state assets."). In German law, although the state does not automatically become the owner of abandoned land, it has the right to step in and take possession before others do so. Bürgerliches Gesetzbuch [BGB] [Civil Code] Aug. 15, 1896, 174 § 928, translated in The German Civil Code (Simon L. Goren trans., 1994).
97. See generally 1 Water and Water Rights § 6.03(b)(2), at 6-183 to -189
98. (Robert E. Beck & Amy K. Kelley eds., 3d ed. 2009) (providing background information on the law of accretion)
99. Am. Jur. 2d Waters § 315 (2002) (same). The exception is in cases of so-called "avulsion," where there is a sudden and dramatic shift in the shoreline due to large erosion or accretion events. In those cases, the boundary remains at its prior location and new land created by a large, avulsive accretion event is deemed to be property of the sovereign. 73 Am. Jur. Proof of Facts 3d 167, § 3 (2003)
100. see also 2 William Blackstone, Commentaries 261-62. In no cases, however, does the law treat the newly created land as unowned.
101. Walton County v. Stop the Beach Renourishment, Inc., 998 So. 2d 1102, 1114 (Fla. 2008)
102. see also Frank E. Maloney et al., Water Law and Administration § 126.1, at 386 (1968).
103. Carol M. Rose, Possession as the Origin of Property, 52 U. Chi. L. Rev. 73 (1985).
104. Id. at 79.
105. Id. at 81.
106. See Strahilevitz, supra note 2, at 415-19 (comparing abandonment with adverse possession to demonstrate why law might prohibit abandonment, but permit transfer via adverse possession).
107. Indeed, as Strahilevitz reports, some confused courts even find evidence of an owner's intent to abandon his land as blocking the "adversity" (i.e., nonpermissiveness) necessary for the adverse possession clock to even begin ticking. Id. at 415 n.232.
108. This differential treatment may reflect assumptions about the low probability that a land-owner will actually intend to permanently walk away from landownership. It may also reflect outdated beliefs about the difficulty of monitoring and defending possession of real property. See Eduardo Moisés Peñalver & Sonia K. Katyal, Property Outlaws 150-51 (2010).
109. Strahilevitz, supra note 2, at 412-13.
110. See Restatement (Second) of Prop.: Landlord & Tenant § 12.1 cmt. i (1977) ("Abandonment of [real] property is an invitation to vandalism....")
111. cf. Roslyn Corenzwit Lieb et al., Student Project, Abandonment of Residential Property in an Urban Context
112. DePaul L. Rev. 1186, 1188 (1974) ("Once a building becomes unoccupied, it is often stripped of all but its outer shell, leaving behind the final product of the abandonment cycle-an open, vacant and structurally dangerous building."); id. at 1216 (noting that a dwelling whose rehabilitation was economically viable upon abandonment may deteriorate to such an extent over a period of two years that it is no longer cost effective to restore it to habitability).
113. See Susan Saulny, In Foreclosure Crisis, a Rise in Banks Walking Away, N.Y. Times, Mar. 30, 2009, at A20.
114. See generally Carol M. Rose, Servitudes (Sept. 2008) (unpublished manuscript, on file with author) (discussing impacts on third parties as a recurring concern within servitudes law).
115. See Eduardo M. Peñalver, Land Virtues, 94 Cornell L. Rev. 821 (2009).
116. See Gregory S. Alexander, The Social-Obligation Norm in American Property Law, 94 Cornell L. Rev. 745, 748 (2009).
117. See Alexander, supra note 84; see also Joseph William Singer, How Property Norms Construct the Externalities of Ownership, in Property and Community 57, 59-60 (Gregory S. Alexander & Eduardo M. Peñalver eds., 2010).
118. Cf. Frank I. Michelman, Political Markets and Community Self-Determination: Competing Judicial Models of Local Government Legitimacy, 53 Ind. L.J. 145, 152-53 (1977-78) (contrasting "individualist and subjectivist" conceptions of value and freedom that predominate in contemporary economic analysis of law with conceptions-rooted in the Aristotelian tradition-that view both value and freedom as "communal and objective").
119. See Gregory S. Alexander & Eduardo M. Peñalver, Properties of Community, 10 Theoretical Inquiries L. 127, 138-45 (2009).
120. See Roberton, supra note 48, at 1228.
121. Those who lived during the Great Depression formed habits of frugality that they retained throughout their lives. See, e.g., Charles D. Schewe et al., Defining Moments: Segmenting by Cohorts, 9 Mktg. Mgmt. 48, 50-51 (2000).
122. These habits were reflected in the popular culture of that period. Laura Ingalls Wilder's images of frugality and self-sufficiency on the American frontier, which were written at the height of the Great Depression, "reinforced and promoted the consumption patterns that many families [at the time] were compelled to practice."
123. Ann Romines, Constructing the Little House 113-14 (1997), quoted in Samantha MacBride, The Immorality of Waste: Depression-Era Perspectives in the Digital Age, SubStance, 2008, at 71, 72-73.
124. To use a favorite example of disposable culture from The Onion. See Chinese Factory Worker Can't Believe the Shit He Makes for Americans, The Onion, June 15, 2005, http:// www.theonion.com/content/node/31049.
125. Susan Strasser, Waste and Want: A Social History of Trash 12-13 (1999). Strasser's claim that garbage was not a problem before the twentieth century may be a bit over-stated. For a complementary, though less rosy, view of the garbage situation in urban areas prior to the twentieth century
126. see Melosi, supra note 64, at 17-18; see also Ann E. Carlson, Recycling Norms, 89 Cal. L. Rev. 1231, 1254-59 (2001).
127. see also Ann E. Carlson, Recycling Norms, 89 Cal. L. Rev. 1231, 1254-59 (2001).
128. Strasser, supra note 91, at 16.
129. Id. at 15.
130. See Peñalver, supra note 83, at 828-32.
131. See Robert C. Ellickson, Property in Land, 102 Yale L.J. 1315, 1317 (1993) ("Because human beings are fated to live mostly on the surface of the earth, the pattern of entitlements to use land is a central issue in social organization.")
132. see also John R. Logan & Harvey L. Molotch, Urban Fortunes: The Political Economy of Place 17 (2007) ("[P]lace is indispensable; all human activity must occur somewhere.").
133. Karl Polanyi, The Great Transformation 178 (1944).
134. In addition, as Larissa Katz argues, landowners' unique visibility and vulnerability to the state also makes the indirect regulation of behavior on the land through the regulation of landowners an effective strategy. See Katz, supra note 8, at 38-44
135. See Felix S. Cohen, Dialogue on Private Property, 9 Rutgers L. Rev. 357, 360-61 (1954) (illustrating the idea that interests in land do not depend on the physical tangibility and concontinuation of the property)
136. Lior Jacob Strahilevitz, The Right To Destroy, 114 Yale L.J. 781, 795
137. (2005) ("[L]and is the only inherently perpetual form of property."). See Peñalver, supra note 83, at 833.
138. This would not be the case if the property in question consumed more services than it contributed in property taxes. Presumably, however, the temptation to abandon would be strongest when the opposite is true.
139. E.g., Maureen Milford, Foreclosures become forgotten burdens in neighborhoods, USA Today, June 10, 2008, at 5A, available at http://www.usatoday.com/money/economy/housing/2008-06-09-Foreclosure-upk eep_N.htm?loc=interstitialskip.
140. See, e.g., Michael Hill, Rural residents oppose burn ban, Albany Times Union, Aug. 12, 2008, at A3, available at http://www.timesunion.com/AspStories/story.asp?newsdate=11/17/2009&navig ation=nextprior&category=STATE&storyID=711074. In the past, waste disposal facilities have often burned garbage as well.
141. See, e.g., Kellogg v. Vill. of Viola, 227 N.W.2d 55 (Wis. 1975). e.g., Kellogg, 227 N.W.2d 55. See generally Strahilevitz, supra note 98.
142. See N.Y. Comp. Codes R. & Regs. tit. 6, § 215.2 (2007).
143. See Strasser, supra note 91, at 284-85 (discussing how solid waste companies have been able to disseminate an ethic of recycling).
144. This admittedly speculative suggestion finds some support in Daryl Bem's "self-perception" theory, which posits that people draw conclusions about the nature of their own beliefs and attitudes in part by observing their own behavior, just as we make inferences about others' attitudes by observing their conduct.
145. See Daryl J. Bem, Self-Perception Theory, in 6 Advances in Experimental Social Psychology 2 (Leonard Berkowitz ed. 1972). The idea is that being convinced to engage in recycling behavior might lead recyclers to come to see themselves as an "environmentalists," at least in some sense or to a greater degree than before having engaged in that behavior. And, having formed this self-perception, the person enters a "virtuous escalator" whereby she becomes more likely to support other environmental initiatives.
146. See John Thøgersen & Tom Crompton, Simple and Painless? The Limitations of Spillover in Environmental Campaigning, 32 J. Consum. Pol'y. 141, 147 (2009) ("[I]f an individual recycles their refuse, this action in itself may lead them to think of themselves as the kind of person 'who cares for the environment.' They may therefore be left more positively predisposed to other pro-environmental behaviors.")
147. see also All Things Considered: How Consumers Can Affect Climate Change, (NPR radio broadcast Dec. 8, 2009), available at http://www.npr.org/templates/story/story.php?storyId=121216180 (transcript) (Professor Michael Vandenbergh stated in the interview, "[T]he little bit of research that's available suggests that people, when they do something good for the environment, don't do less other good things. And, in fact, there are a number of psychological phenomena that suggests that we might actually induce more support for behavior change. When someone becomes committed to a certain behavior, they're more likely to follow through in other areas as well.").