Robert Ellickson, ‘The Affirmative Duties of Property Owners’

As a result of his ownership of property, Rip Van Winkle might have incurred a variety of criminal and civil liabilities during the course of his twenty-year sleep. Possibilities are a conviction for neglecting care of his livestock, civil liability to a neighbor for having failed to contribute to the costs of a fence along a common boundary, and forfeiture of his lands for having failed to pay local property taxes. This essay investigates the nature of these affirmative obligations of owners. Concerns about curbing information costs, a central theme in Thomas Merrill’s scholarly works, underlie the structure of many of these duties, and help explain their relative paucity. The analysis illuminates several recent strands of property theory, including Larissa Katz’s notion that a state may choose to “govern through owners”. It reveals major defects in Gregory Alexander’s argument that owners should bear a generalized obligation to share their wealth. Alexander’s proposed duty would greatly increase the information costs that individuals would bear in navigating daily life, and would embroil adjudicators in tasks far better handled by drafters of tax and welfare legislation.

Ellickson, Robert C, The Affirmative Duties of Property Owners (July 10, 2014).

First posted 2014-07-11 15:40:18

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