Private Law Theory

Christopher Serkin, Passive Takings: The State’s Affirmative Duty to Protect Property, 113 Michigan Law Review 345 (2014); Nadav Shoked, The Duty to Maintain, 64 Duke Law Journal 437 (2014). Property often seems like a force field, a socially protected clearing in which an owner can act (within specified bounds) or do nothing at all. On this account, property is institutionalized noninterference. Trouble arises, we are given to understand, only when someone – an owner, an outsider, or the government – does something that impinges on someone else’s entitlements. The pervasive language of exclusion and encroachment, of boundaries defended and breached, cultivates the perception that property law operates to constrain action, not to compel it … (more)

[Lee Anne Fennell, JOTWELL, 20 June]

First posted 2016-06-20 12:23:11