Dana and Shoked, ‘Property’s Edge’

Property law thinking normally assumes that the protection afforded an owner does not vary in intensity across the owned asset. Property rights’ legal potency can differ between different assets, but not within a given asset. This Article argues that this assumption is wrong – and that when lawmakers pretend that it is not, detrimental results ensue. This Article demonstrates that, in fact, property law distinguishes the edges of an asset from its core. For good normative reasons, the law recognizes much weaker ownership rights in the edges of an asset – the areas lying close to the private property boundary line – than at its core. The law conceives the edges of any private property as a space where private and public interests inevitably interact and where both must somehow be accommodated. But, because this doctrinal and normative reality has heretofore gone largely unacknowledged, lawmakers are prone to ignore it, particularly when new technologies or geophysical phenomena introduce new activities into the edges of a property or when advances in science improve society’s grasp of the effects of existing activities there. As judges, legislators, and regulators instinctively resort to a misleading notion of unitary private property protections across the relevant asset, they hamper attempts at effectively accommodating new challenges materializing at the asset’s edges, such as those presented by lead water pipes, drones, rising sea levels, and the digital revolution. Moving past the unitary vision of property, and drawing instead on its novel theoretical analysis, this Article suggests specific edges solutions to such problems. The Article’s introduction of a new framework for understanding property law protections – the property edges theory – thus not only contributes to existing scholarly discourse, but also aids in tackling daunting real-world property law puzzles.

David A Dana and Nadav Shoked, Property’s Edge, Boston College Law Review volume 60:753 (2019).

First posted 2019-04-02 13:01:04

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