The Yale Law Journal



The Illusory Promise of General Property Law

Maureen E. Brady

This Essay criticizes using “general” or federal property law to define constitutional rights, including protections against unlawful search and seizure. Federal property law is an ahistorical and indeterminate concept. Its ascendance in Takings Clause opinions illustrates its flaws and the risks it…


The History Wars and Property Law: Conquest and Slavery as Foundational to the Field

K-Sue Park

The version of American history we adopt matters for our understanding of law. In property law, we overlook how the land system underpinning the American real estate market developed, and how that market grew through racial inequality, if we do not examine conquest and slavery as foundational to the…


Dismantling the Master’s House: Reparations on the American Plantation

Jordan Brewington

In southeastern Louisiana, plantations still line the Mississippi River, surrounded by Black communities who experience these estates as sites of racialized harm. This Note explores the use of eminent domain to achieve land-based reparations for these descendants and draws lessons for reparations at…


Retroactive Adjudication

Samuel Beswick

This Article defends the inherent retroactivity of judicial lawmaking. It argues that there is no principled foundation for the Supreme Court’s non-retroactivity doctrine, and it provides an alternative framework: courts should always apply “new law” to old cases, and constrain its effects instead t…


Condemning Worship: Religious Liberty Protections and Church Takings

Patrick E. Reidy, c.s.c.

This Note explores how courts interpret religious liberty protections when the government seeks to condemn property owned by faith communities (“church takings”), revealing how judges discriminate between types of religious property. While protecting houses of worship, courts allow condemning author…


Public Rights of First Refusal

Peter Damrosch

This Note provides the first study of public rights of first refusal, an underappreciated land-use power that governments use to acquire property. It argues that these rights can, under certain conditions, provide a means of balancing individual and collective needs that is superior to both eminent …


The Forgotten History of Metes and Bounds

Maureen E. Brady

Property scholarship has long derided metes and bounds systems of land demarcation, largely accepting that standardized boundaries best facilitate economic growth. Through a case study of colonial New Haven, Connecticut, this Article suggests that metes and bounds descriptions actually provided earl…


What’s Wrong with Intentionalism? Transformative Use, Copyright Law, and Authorship

Ben Picozzi

Copyright law’s experiment with transformative use is failing. So argue a growing number of scholars who contend that the standard conflicts with the goals of art. In their view, transformative use goes astray by conflating the accused work’s meaning with the defendan…


Reimagining Finality in Parallel Patent Proceedings

Ben Picozzi

Parties may challenge the validity of issued patents in federal courts and before the Patent and Trademark Office (PTO) and its administrative tribunal, the Patent Trial and Appeal Board (PTAB). Recently, the Court of Appeals for the Federal Circuit, which has exclusive appellate jurisdict…


The Constitutionality of Civil Forfeiture

Caleb Nelson

Many state and federal statutes provide that when property is used in certain prohibited ways, ownership of the property passes to the government. Often, the statutes allow these forfeitures to be declared in civil proceedings against the property itself, without the normal safe…


The State’s Right to Property Under International Law

Peter Tzeng

introduction On December 3, 2013, agents of the Australian Secret Intelligence Service seized privileged documents belonging to Timor-Leste on the premises of one of Timor-Leste’s legal advisers in Australia.1 The documents concerned an ongoing arbitration between the two states over…


Toward an Efficient Licensing and Rate-Setting Regime: Reconstructing § 114(i) of the Copyright Act

Joseph Pomianowski

Why is Sony/ATV Music Publishing, the world’s largest music publisher,1 unhappy about its massive hit single “Happy”?2 According to CEO and Chairman Martin Bandier, the answer comes down to the math behind digital streaming revenues. In the first three months of 2014, the Internet ra…


The Lost “Effects” of the Fourth Amendment: Giving Personal Property Due Protection

Maureen E. Brady

In addition to “persons, houses, [and] papers,” the Constitution protects individuals against unreasonable searches and seizures of “effects.” However, “effects” have received considerably less attention than the rest of the categories in the Fourth Amendment. Rec…


The First Patent Litigation Explosion

Christopher Beauchamp

The twenty-first century “patent litigation explosion” is not unprecedented. In fact, the nineteenth century saw an even bigger surge of patent cases. During that era, the most prolific patent enforcers brought hundreds or even thousands of suits, dwarfing the efforts of toda…


Looking Back Ten Years After Kelo

Dana Berliner

Dana Berliner is the Litigation Director of the Institute for Justice. Along with her colleague Scott Bullock, she represented the homeowners in Kelo v. City of New London from the inception of the case to its conclusion at the Supreme Court. This year marks the tenth anniversary of the Supreme …


"We Don't Follow, We Lead": How New York City Will Save Mortgage Loans by Condemning Them

Robert Hockett

Introduction1 Many cities across the nation have begun to consider exercising their eminent domain authority to purchase, then write-down principal on, otherwise unmodifiable home mortgage loans facing foreclosure.2 I and several others have advocated this method and cognate uses of gover…


Garcia v. Google and a "Related Rights" Alternative to Copyright in Acting Performances

Jacob M. Victor

A recent Ninth Circuit case, Garcia v. Google, held that an actor can maintain a copyright interest in her acting performance in a film—independent of the copyright held by the filmmaker—and that this copyright can sometimes be sufficiently powerful to allow the actor to prevent public di…


Abuse of Property Right Without Political Foundations: A Response to Katz

Mitchell N. Berman

Suppose that Oliver owns Blackacre, a parcel adjacent to Whiteacre, owned by Teresa. Oliver erects a large sculpture on Blackacre along the shared property line. The sculpture conforms to zoning regulations. But Oliver erects it in order to block Teresa’s access to light. Is he legally ent…


The Unconvincing Case for Resale Royalties

Guy A. Rub

Introduction Here we go again. In late February 2014 a group of congresspersons introduced a bill—The American Royalties Too Act of 2014 (known for its catchy abbreviation: the ART Act),1 which, if passed, will grant visual artists2 a right to collect royalties when their artworks are r…


Rethinking the Federal Eminent Domain Power

William Baude

122 Yale L.J. 1738 (2013).

It is black-letter law that the federal government has the power to take land through eminent domain. This modern understanding, however, is a complete departure from the Constitution’s historical meaning.

From the Founding until the Civil War, the federal government was t…


Spite and Extortion: A Jurisdictional Principle of Abuse of Property Right

Larissa Katz

122 Yale L.J. 1444 (2013).

This Essay puts forward the conceptual and normative underpinnings of a principle of abuse of property right. Owners abuse their right, I argue, when their decisions about a thing are designed just to produce harm. This is so whether that harm is an end in itself (spite) or…


The New Judicial Takings Construct

Timothy M. Mulvaney

[To] halt the law's evolution... would be to sever property's link to the culture it serves. In time, a static property regime would inevitably become an anachronism and would gradually be perceived as an obstacle to progressIn Stop the Beach Renourishment, Inc. v. Florida Department of Environmenta…


Rethinking the Facial Takings Claim

David Zhou

120 Yale L.J. 967 (2011). 


Unbundling Homeownership: Regional Reforms from the Inside Out

Nicole Stelle Garnett

119 Yale L.J. 1904 (2010). 


Eminent Domain Due Process

D. Zachary Hudson

119 Yale L.J. 1280 (2010). 

This Note analyzes the apparent disconnect between eminent domain doctrine and due process doctrine. Following Kelo, numerous states have reformed their eminent domain laws in an effort to ensure that the takings power is not abused. Whatever one makes of these legislati…


In Defense of Property

Kristen A. Carpenter, Sonia K. Katyal, & Angela R. Riley

118 Yale L.J. 1022 (2009).


This Article responds to an emerging view, in scholarship and popular society, that it is normatively undesirable to employ property law as a means of protecting indigenous cultural heritage. Recent critiques suggest that propertizing culture impedes the free flow of i…


Why the IRS Has Not Taxed Income from Virtual World Transactions . . . Yet

Zachery Jones

Virtual world transactions (VWT) involve the sale or exchange of goods and services that are used exclusively within a virtual world. As participation in virtual worlds increases, both in volume and in character, the boundary between VWT and real world transactions becomes unclear. Consequently, man…


Reputation as Property in Virtual Economies

Joseph Blocher

Economists and legal theorists have long argued that real-world economies cannot function effectively without well-defined property rights. More recently, scholars have also begun to analyze at least three kinds of “virtual” economies: the online economies exemplified by eBay and other trade-fac…


Virtual World Feudalism

James Grimmelmann

Second Life is a feudal society. No, not metaphorically. Literally. Two problems have preoccupied scholars of virtual world law: What is the political relationship between developers and users? And: Should we treat in-world objects as property? We can make progress on both questions by recognizing …


The Ideology of Authorship Revisited: Authors, Markets, and Liberal Values in Early American Copyright

Oren Bracha

118 Yale L.J. 186 (2008).

The concept of the author is deemed to be central to copyright law. An important strand of copyright scholarship explores how the development of modern copyright law was intertwined with the rise of a new ideology of authorship as an individualist act of creation ex nihilo…


Intellectual Property as Property: Delineating Entitlements in Information

Henry E. Smith

This Article proposes that intellectual property’s close relationship to property stems from the role that information costs play in the delineation and enforcement of exclusion rights. As theorists have emphasized, the nonrivalness of information causes exclusive rights to be more costly in terms o…


Reluctant Nationalists: Federal Administration and Administrative Law in the Republican Era, 1801-1829

Jerry L. Mashaw

In 1801 the Jeffersonian Republicans took charge of Congress, the presidency, and the national administration, determined to roll back the state-building excesses of their Federalist predecessors. In this effort they were partially successful. But the tide of history and the demands of a growing nat…


Property and Half-Torts

Lee Anne Fennell

116 Yale L.J. 1400 (2007)

The idea that a tort can be split analytically into two parts—risk and harm—underlies a great deal of torts scholarship. Yet the notion has been all but ignored by property scholars employing Calabresi and Melamed’s famous entitlement framework. Thus, in discussing an “ent…


Searching for Balance in the Aftermath of the 2006 Takings Initiatives

Hannah Jacobs

116 Yale L.J. 1518 (2007)

The partial regulatory takings movement seeks to compensate private landowners when regulations diminish their land values. This movement has grown in recent years, particularly at the state level. Scholars have focused thus far on the cost of compensation and its effect …


Unpacking the Household: Informal Property Rights Around the Hearth

Robert C. Ellickson

Lawyers and legal scholars understandably tend to focus on domains of life where law is central. There is much to be learned, however, from domains where people deliberately structure their affairs to minimize formalities such as written contracts and legal entanglements. Just as studying conditions…


Tenant Screening Thirty Years Later: A Statutory Proposal To Protect Public Records

Rudy Kleysteuber

116 Yale L.J. 1344 (2007)

Most consumers learn about tenant-screening reports only when a landlord points to an item on such a report as the reason for rejecting an application and provides the tenant with a copy of that report as required by law. Legal scholars have criticized these reports for mo…


Bargaining Around the Hearth

Robert A. Pollak

In Unpacking the Household: Informal Property Rights Around the Hearth, Robert Ellickson argues that as long as members of a household expect their relationship to continue, norms, rather than law, will determine allocations among them. More specifically, Ellickson argues that in “midgame” house…


Repack the Household: A Response to Robert Ellickson’s Unpacking the Household

Shoshana Grossbard

In the United States and many other industrialized countries, there is much concern that younger generations fail to invest the amount of household production time that is needed for society to reproduce itself and for children to receive the education that will make them into productive citizens. I…


Living History: How Homeowners in a New Local Historic District Negotiate Their Legal Obligations

Tad Heuer

116 Yale L.J. 768 (2007)

American historic preservationists are increasingly emphasizing the need to preserve not only prominent landmarks, but also the vernacular architectural culture of "ordinary neighborhoods." Preserving such neighborhoods often requires convincing homeowners to agree to legal r…


Save the Cities, Stop the Suburbs?

Nicole Stelle Garnett

The fact that the word “sprawl” is uttered by curling the upper lip into a snarl captures some of the emotion generated by the current debate over American land use policy. Two recent books—Robert Bruegmann’s defense of sprawl and Joel Kotkin’s ambitious but short history of great cities p…


Save the Cities, Stop the Suburbs?

Nicole Stelle Garnett

116 Yale L.J. 598 (2006)

Sprawl: A Compact History

The City: A Global History


Unpacking the Household: Informal Property Rights Around the Hearth

Robert C. Ellickson

As Aristotle recognized in The Politics, the household is an indispensable building block of social, economic, and political life. A liberal society grants its citizens far wider berth to arrange their households than to choose their familial and marital relationships. Legal commentators, however, h…


Of Property and Federalism

Abraham Bell & Gideon Parchomovsky


A Private Idaho in Greenwich Village?

Robert C. Ellickson

Should a landlord and tenant negotiating the lease of an apartment in Greenwich Village be entitled to spurn New York law and instead agree that their relationship is to be governed by the law of Idaho? Bell and Parchomovsky (B&P) apparently would answer yes. Their potentially revolutionary proposal…


Property Rules Without Borders

Stephen F. Williams

First, the good news: Bell and Parchomovsky (B&P) see federalism’s potential to foster benign competition in the production of legal rules. This vision takes federalism beyond the traditional view of states as laboratories for experiment. It looks to federal structures that create a market for leg…


Evolution and Chaos in Property Rights Systems: The Third World Tragedy of Contested Access

Daniel Fitzpatrick

115 Yale L.J. 996 (2006)

According to conventional law-and-economics theory, private property rights tend to evolve as resource values rise. This optimistic assessment fails to explain the development of open access in many Third World property systems. Indeed, while the evolution of property has bee…


Jurisdictional Competition for Trust Funds: An Empirical Analysis of Perpetuities and Taxes

Robert H. Sitkoff & Max M. Schanzenbach

115 Yale L.J. 356 (2005)

This Article presents the first empirical study of the domestic jurisdictional competition for trust funds. To allow donors to exploit a loophole in the federal estate tax, since 1986 a host of states have abolished the Rule Against Perpetuities as applied to interests in tru…


Of Property and Federalism

Abraham Bell & Gideon Parchomovsky

115 Yale L.J. 72 (2005)

This Essay proposes a mechanism for expanding competition in state property law, while sketching out the limitations necessary to protect third parties. The fact that property law is produced by the states creates a unique opportunity for experimentation with such property and…


The Creation of Homeownership: How New Deal Changes in Banking Regulation Simultaneously Made Homeownership Accessible to Whites and Out of Reach for Blacks

Adam Gordon

115 Yale L.J. 186 (2005)

The Federal Government, in creating the section 203(b) mortgage insurance program during the New Deal, transformed homeownership in America into the main way that middle-class households build wealth. In the first three decades of the program's existence, however, this wealth…


A Walk Along Willard: A Revised Look at Land Use Coordination in Pre-Zoning New Haven

Stephen Clowney

115 Yale L.J. 116 (2005)

This Note seeks to forge a richer understanding of the costs and benefits of zoning. To accomplish its goal, this Note assesses and critiques Andrew Cappel's A Walk Along Willow. This Note asks and answers three questions: (1) Are Cappel's findings about land use patterns rep…


Property in All the Wrong Places?

Carol M. Rose

114 Yale L.J. 991 (2005)

In Who Owns Native Culture? and Public Lands and Political Meaning, an anthropologist and a historian document an ever-increasing deployment of property categories in two quite different domains: native people's recent cultural claims in the first book and the longer story o…


The Right To Destroy

Lior Jacob Strahilevitz

114 Yale L.J. 781 (2005)

Do you have the right to destroy that which is yours? This Article addresses that fundamental question. In contested cases, courts are becoming increasingly hostile to owners' efforts to destroy their own valuable property. This sentiment has been echoed in the legal academy,…


The Federalist Dimension of Regulatory Takings Jurisprudence

Stewart E. Sterk

114 Yale L.J. 203 (2004)

Federalism concerns, underappreciated in the takings literature, play an important role in shaping the Supreme Court's takings jurisprudence. The Takings Clause does not guarantee any particular property rights; instead, the Clause protects primarily against change in backgro…


Appurtenancy Reconceptualized: Managing Water in an Era of Scarcity

Olivia S. Choe

113 Yale L.J. 1909 (2004)


Until recently, the eastern United States has been blessed with an abundance of water; unlike the arid West, shortages in the East have historically been "rare and short-lived." During the past few decades, however, water has i…


Property Rights and Sacred Sites: Federal Regulatory Responses to American Indian Religious Claims on Public Land

Marcia Yablon

113 Yale L.J. 1623 (2004)

The courts and Congress have left sacred sites protection in the hands of land management agencies, and although many feared this decision would be disastrous, land agencies have actually embraced their role and sought to accommodate Indian religions and protect their sacred…


Limiting Locke: A Natural Law Justification for the Fair Use Doctrine

Benjamin G. Damstedt

112 Yale L.J. 1179 (2003)

Focusing a discussion of intellectual property on a 300-year-old text may seem unusual, but John Locke's Two Treatises of Government has an uncommon place in American intellectual property theory. Historically, Lockean natural rights informed the Framers' understanding of i…


Why Tax the Rich? Efficiency, Equity, and Progressive Taxation

Reuven S. Avi-Yonah

111 Yale L.J. 1391 (2002)

In Greek mythology, Atlas was a giant who carried the world on his shoulders. In Ayn Rand's 1957 novel Atlas Shrugged, Atlas represents the "prime movers"--the talented few who bear the weight of the world's economy. In the novel, the prime movers go on strike against the o…


Architecture as Crime Control

Neal Kumar Kaytal

111 Yale L.J. 1039 (2002)

Building on work in architectural theory, Professor Katyal demonstrates how attention to cities, neighborhoods, and individual buildings can reduce criminal activity. The field of cyberlaw has been transformed by the insight that architecture can regulate behavior in cybersp…



Abraham Bell & Gideon Parchomovsky

111 Yale L.J. 547 (2001)

Givings-government acts that enhance property value-are omnipresent. Yet they have received scant scholarly attention and no consistent doctrinal or theoretical treatment. Although givings and takings are mirror images of one another and are of equal practical and theoretical…


The Copyright Law

Robert Kry

111 Yale L.J. 761 (2001)


What Happened to Property in Law and Economics?

Thomas W. Merrill & Henry E. Smith

111 Yale L.J. 357 (2001)

Property has fallen out of fashion. Although people are as concerned as ever with acquiring and defending their material possessions, in the academic world there is little interest in understanding property. To some extent, this indifference reflects a more general skepticism…


The Liberal Commons

Hanoch Dagan & Michael A. Heller

110 Yale L.J. 549 (2001)

Must we choose between the benefits of cooperative use of scarce resources and our liberal commitments to autonomy and exit? No. Well-tailored law can mediate between community and liberty, between commons and private property. Our theory of the liberal commons provides a fra…


Optimal Standardization in the Law of Property: The Numerus Clausus Principle

Thomas W. Merrill & Henry E. Smith

110 Yale L.J. 1 (2000)

In all postfeudal legal systems, the basic ways of owning property are limited in number and standardized, in the sense that courts will enforce as property only interests that are built from a list of recognized forms. In the common law, this principle has no name and is invok…