Lee Anne Fennell, ‘Lumpy Property’

A bridge that only spans three-quarters of the distance across a chasm is useless, although far from costless. This standard, intuitive example of a lumpy or step good illustrates a point about discontinuities and complementarities that has broad, and mostly unexplored, significance for property law. In this essay, I explain how, why, and when property might be regarded as lumpy, and examine the implications of that lumpiness for doctrine and theory. Viewing property through the lens of lumpiness matters for several reasons. The first is descriptive accuracy. Property law is lumpy as a positive matter, filled with doctrines and approaches that deal with the world in discrete, hard-to-divide chunks. Second, an appreciation of lumpiness can inform optimal entitlement design. In evaluating the chunkiness that is built into property doctrines, we must ask whether and how it corresponds to – or contributes to – underlying discontinuities in the production or consumption of property. A third reason for attending to lumpiness is that many of property law’s most important conflicts can be usefully framed as “lump versus lump.” For example, an exercise of eminent domain may achieve a valuable spatial aggregation by splitting up some other aggregation, such as lengthy temporal attachments to the land, or a cohesive community that shares social capital. Recognizing the work that nonlinearities do in such stories can offer new traction on contested property issues. Lumpiness also informs ongoing theoretical debates that turn out to have a similar “lump versus lump” structure, including the usefulness of the “bundle of sticks” metaphor and the tension between exclusion and social obligation.

Fennell, Lee Anne, Lumpy Property (December 29, 2011).

First posted 2011-12-31 10:34:02

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