Document Type

Article

Publication Date

1999

Abstract

If your house and fields are worth more separately, divide them; if you want to leave a ring to your child now and grandchild later, split the ownership in a trust. The American law of property encourages owners to subdivide resources freely. Hidden within the law, however, is a boundary principle that limits the right to subdivide private property into wasteful fragments. While people often create wealth when they break up and recombine property in novel ways, owners may make mistakes, or their self-interest may clash with social welfare. Property law responds with diverse doctrines that prevent and abolish excessive fragmentation and keep resources well-scaled for productive use. Recently, however, the Supreme Court has begun assigning a private property label to an increasing range of fragments. By protecting too many fragments, the Court paradoxically undermines the usefulness of private property as an economic institution and constitutional category.


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