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ADJUSTING
ALIENABILITY
by Lee Anne Fennell [ Full Text
] |
| 122 Harv. L.
Rev. 1403 (2009) |
| In recent
years, the right to exclude has dominated property theory, relegating alienability
— another of the standard incidents of ownership — to the scholarly shadows.
Law and economics has also long neglected inalienability, despite its inclusion in
Calabresi and Melamed’s Cathedral. In this Article, I explore inalienability
rules as tools for achieving efficiency or other ends when applied to resources that
society generally views as appropriate objects of market transactions. Specifically, I
focus on inalienability's capacity to alter upstream decisions by would-be resellers
about whether to acquire an entitlement in the first place. By influencing these
acquisition decisions, inalienability rules can buttress or substitute for other
adjustments to the property bundle in addressing resource dilemmas. Of particular
interest is the possibility that limits on alienability could sidestep the holdout
problems that have often spurred resort to liability rules, and could do so without
interfering as profoundly with the owner's autonomy interests. While alienability limits
carry well-known disadvantages, they might be structured in ways that would minimize
those drawbacks. Recognizing the full potential of alienability limits in addressing
resource dilemmas requires applying the same level of creativity to devising
inalienability rules as has previously been applied to the design of liability rules
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