The Yale Law Journal

January 2020

Public Rights of First Refusal

PropertyLand Use

abstract. Public authorities, at all levels of government, have been using a little-known land- use power to acquire property. This power, known as a right of first refusal, enables the government to acquire private property as long as it matches the price of any third-party offer. In this Note, I show how governments use rights of first refusal in areas as diverse as transportation, conservation, and affordable housing. I argue that public rights of first refusal can, under certain conditions, provide a means of balancing individual and collective needs that is superior to both eminent domain and regular purchasing.

author. Yale Law School, J.D. 2020; Massachusetts Institute of Technology, M.C.P. 2020. I am deeply grateful to Claire Priest and Taisu Zhang for their thoughtful advice and encouragement throughout this project. I would also like to thank Bob Ellickson, Zachary Liscow, David Schleicher, Justin Steil, Cara Reichard, Noah Kazis, Joshua Macey, Joseph Schottenfeld, Jamie Durling, Patrick Hulin, and members of Yale Law School’s Urban Ideas Workshop for comments and reactions that enriched this Note. Finally, Danielle Zucker, Thomas Hopson, Daniel Strunk, and their colleagues at the Yale Law Journal provided excellent feedback.