Property Law

This Article greatly benefited from comments and criticisms by Ben Depoorter, Lee Anne Fennell, Mark Fenster, Sonia Katyal, Jim Krier, Tom Merrill, Adam Mossoff, Dan Richman, Ed Rock, Carol Rose, Chris Serkin, Peter Siegelman, Henry Smith, Phil Weiser, and participants in the 2007 Property Works in Progress Conference at the University of Colorado Law School.

Many people helped me think through the problems addressed in this article. I am especially grateful to Larry Alexander, Randy Barnett, David Bernstein, Julie Cohen, Lee Anne Fennell, Martin Lederman, Gary Peller, Adam Samaha, Geoffrey Stone, Mark Tushnet, and Rebecca Tushnet, and to participants at workshops at The University of Chicago Law School, Georgetown University Law Center, and Loyola University Law School. I received excellent research assistance from James Banda and Richard Harris.

This Article greatly benefited from comments and criticisms by Jonathan Barnett, Omri Ben-Shahar, Philip Blumberg, Lloyd Cohen, Bob Ellickson, Assaf Hamdani, Henry Hansmann, Christine Jolls, Sonia Katyal, Greg Keating, Dan Kelly, Dan Klerman, Yair Listokin, Tom Merrill, Gideon Parchomovsky, J.J. Prescott, Bob Rasmussen, Roberta Romano, Carol Rose, Alan Schwartz, Peter Siegelman, Henry Smith, Chris Stone, Bill Treanor, Mark Weinstein, and Ben Zipursky; and participants in the Law, Economics, and Organization Workshop at Yale University and the law and economics seminars and workshops at University of Michigan Law School, University of Southern California Gould School of Law, the Bar Ilan University Faculty of Law, and the Tel Aviv University Faculty of Law; and participants in faculty seminars at Fordham University Law School, Brooklyn Law School, University of Connecticut Law School, University of San Diego Law School, Washington University School of Law, University of Illinois Law School and George Mason University Law School. For the central ideas, I am indebted to Fred Schauer and Steven Shavell, without whom this Article would not have been possible. I am also grateful for the financial support of the John M. Olin Center for Law, Economics, and Business at Harvard Law School. All errors, of course, are mine.

This Article has benefited from comments of participants at The Univeristy of Chicago Law School’s Symposium, Rethinking the State and Local Government Toolkit, and from a faculty workshop at Wisconsin Law School. Many thanks to Bob Ellickson for reading and commenting on an earlier version of this Article and to Erin Brantley Webb for outstanding research assistance.

We thank Amnon Lehavi, Lior Strahilevitz, participants in The University of Chicago Law School’s Symposium, Reassessing the State and Local Government Toolkit, and participants in the 2009 Property Works in Progress conference held at the University of Colorado School of Law for helpful comments and questions on this project. Prisca Kim and Eric Singer provided excellent research assistance.

In the interests of full disclosure, I advised ProLogis on some of the legal and economic issues connected with its brief. The opinions expressed here are of course my own.

Many thanks to Lee Fennell, Susan Koniak, Adam Levitin, Claire Priest, Julie Roin, and Jacob Sagi.

I am grateful to Lee Fennell, Saul Levmore, Ariel Porat, David Schwartz, and participants at two workshops in Chicago for helpful discussions.