Brian Lee, ‘Average Reciprocity of Advantage’

The concept of ‘average reciprocity of advantage’, or ‘in-kind compensation’, is often invoked in property theory but rarely analyzed. The concept’s most familiar application is in defenses of the government’s imposing certain burdens on property owners without paying monetary compensation for the owners’ resulting loss. The government’s action is said to be justified on the grounds that each burdened owner simultaneously benefits from other owners’ bearing the same burden, and this reciprocity makes the burdened owners whole. This paper argues that the classic paradigm of average reciprocity of advantage is best understood as arising from a regulation’s having solved a coordination problem — reaching a result that all parties objectively should have favored but was unattainable through private ordering because of impediments to bargaining — thereby leaving all affected parties better off by their own lights. However, the conditions necessary for such a situation to arise are quite stringent, and when they not satisfied, as is likely often to be the case, the diversity of property owners’ interests and risk tolerances makes it unlikely that the restriction’s reciprocal benefits will dependably make burdened owners whole. Thus, appeals to reciprocal advantage or in-kind compensation will not reliably be able to do the justificatory work asked of them. Nevertheless, this paper argues, it does not follow that in-kind compensation is irrelevant to justifying property regulations. Such a conclusion would itself be inconsistent with broadly and deeply held convictions about regulations’ legitimate scope. Instead, the presence of reciprocal advantages derives its importance not from an illusory potential to make burdened property owners whole, but rather from reciprocity’s role in preserving the respect due to civic equals. The extent to which reciprocal advantages are conferred upon the burdened party can serve as a proxy for the risk of exploitation in the imposition of that burden, and thus can help determine whether those burdens are properly understood as participation in a shared project of civic governance or merely as a naked imposition of power for the benefit of others.

Lee, Brian A, Average Reciprocity of Advantage (May 4, 2015). The Philosophical Foundations of Property Law, 2013; Brooklyn Law School, Legal Studies Paper No 410.

First posted 2015-05-07 06:31:57

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