ABSTRACT
Property often lays idle, even in times of dire need. Property scholars have largely overlooked this enduring social problem. The oversight is surprising, since the same scholars often write that property’s purpose is to help people put things to use. Some even contend that the right to exclude is and ought to be property’s essential core because it helps serve this purpose. Yet the right to exclude empowers owners to leave resources idle, even during times of need. One influential theory suggests that conflicts over disuse should be addressed by a shift toward governance, in the form of doctrinal, legislative, and customary exceptions to the right to exclude. But when the right to exclude leads to disuse during a time of need, what actually happens in practice? This Article analyzes how people have repeatedly dealt with the problem of disuse in a major American city. This reveals a practice of brokering, which helps people in need by letting them use idle property. I call this practice the ‘use fix’ …
Ela, Nate, Property and the Problem of Disuse (February 26, 2022). Washington University Law Review, volume 100, forthcoming.
First posted 2022-04-01 11:00:39
Leave a Reply