The American law of property encourages people to create wealth by breaking up and recombining resources in novel ways. But fragmenting resources proves easier than putting them back together again. Property law responds by limiting the one-way ratchet of fragmentation. Hidden within the law is a boundary principle that keeps resources well-scaled for productive use. Recently, however, the Supreme Court has been labeling more and more fragments as private property, an approach that paradoxically undermines the usefulness of private property as an economic institution and Constitutional category. Identifying the boundary principle threads together disparate property law doctrines, clarifies strange asymmetries in property theory, and unknots some takings law puzzles.
An earlier version of this article was announced as University of Michigan Law School, Law and Economics Working Paper No. 99-010. The working paper can be downloaded from SSRN.
The Boundaries of Private Property,
Yale Law Journal, Vol. 108, p. 1163, 1999
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/1175