Center for Law and Economic Studies
Property concerns conflicts - both conflicts between individuals and conflicts of interest. Conflicts between individuals have long been the paradigmatic property focus. According to this view, property debates circle around issues of autonomy and productive competition. But this is an impoverished view. In this Article, we shift attention to conflicts of interest. By helping people manage conflicts of interest, a well-governed property system balances interdependence with autonomy and productive cooperation with productive competition. We identify three mechanisms woven throughout property law that help manage conflicts of interest: (1) internalization of externalities; (2) democratization of management; and (3) de-escalation of transactions. We show that property law predictably selects among these mechanisms depending on the ratio of economic to social benefits that people seek from a group resource. When economic concerns predominate, property law typically uses contribution-based allocations of rights and responsibilities mediated by formal, foreground procedures, while at the social end of the spectrum we tend to see more egalitarian substantive rules operating as an informal, background safety net.
Hanoch Dagan & Michael A. Heller,
Conflicts in Property,
Theoretical Inq. L.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/291