Centralized Posting and the Right to Exclude in the Digital Age

Abstract

Many European nations recognize a right to hike, hunt or engage in other recreation on private land without the owner’s consent. Some American states once recognized variants of this right, but today all recognize the landowner’s right to exclude outdoor enthusiasts. Most states insist that landowners post signs or physically mark their property to exercise their right. This essay argues that states should allow landowners to “post” their property by checking a box when they pay their property taxes. States should then provide this information to the public in a form that can be accessed on the internet and stored on telephones or handheld GPS devices. This system would reduce the landowner’s cost of posting and improve the notice given to the public. This system could also enhance the government’s ability to serve as an intermediary between landowners and outdoor enthusiasts by negotiating for public access to private land. By playing the role of intermediary, the government substantially reduces bargaining costs and changes the analysis of the optimal allocation of property rights. Modern technology makes it much harder to argue for a general public right to access private land.