Aziz Huq, ‘Property Against Legality: Takings after Cedar Point’, 109 Virginia Law Review (forthcoming 2023), available at SSRN. There is a nearly universal assumption in contemporary property theory that clearly defining property rights in terms of exclusion enhances rule of law virtues of clarity, stability and predictability. And there is a corresponding assumption that a rival account, according to which property is a malleable bundle of rights, undermines those same values. Judicial discretion is the main target of this prevailing view: a bundle of rights approach invites courts to configure the content of the ‘bundle’ of rights in socially optimal ways. While there is much to be said for engineering property rights to advance social goals, this can be said against it: it leaves participants in the legal order – litigants, potential trespassers or buyers, even judges – in the dark about what the relevant rights and duties are … (more)
[Larissa Katz, JOTWELL, 16 Nov 2022]
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