Property Rights: Long and Skinny

Richard A Epstein

doi:10.5334/ijc.993

Abstract

This paper explores the relationship between private and common property. It starts with the state of nature, works its way through Roman law, and finishes with a discussion of the application of these principles in a modern context. It explains how the intensification of property use often leads to the need for a public trust doctrine for common pool assets, and explains why long and skinny assets have single dedicated uses, chiefly for communication and transportation which enable them to link together productive property sites used for residence, manufacture, and farming. These long and skinny assets have a large perimeter relative to area, which makes them difficult to defend on the one side, and often exposes them to multiple legal regimes with inconsistent commands. It deals with such specific issues as the distinction between alluvion and avulsion, and offers a detailed analysis of the difficulty of permitting oil and gas pipelines in the United States.

Highlights

In this essay I shall extend that approach to deal with the longstanding differences between common and private property, all in the effort to isolate some of the key features of common property that are easy to lose sight of in the close analysis of particular cases
I shall talk about the relationship between the commons and private property in the state of nature
I shall apply my theoretical framework in a detailed analysis of present-day permitting for pipelines, long and skinny assets, that are uniquely vulnerable to duplicative and inconsistent regulations and procedures

Summary

Introduction

The purpose of this paper is to expand an inquiry that has occupied me for many years, which is to explain the intellectual, physical and economic unity behind the various branches of law across all legal systems. In this essay I shall extend that approach to deal with the longstanding differences between common and private property, all in the effort to isolate some of the key features of common property that are easy to lose sight of in the close analysis of particular cases. The state will typically be subject to correlative duties to help ensure that it does not misfire in its management of these resources, which is why the term “public trust” is often used to impose a set of duties on the government that parallel the duties imposed on private trustees, most notably duties of care and loyalty in the handling of these assets At this point, it is helpful to distinguish the subject of this paper from the important work that Henry Smith (2000) has done on the “semicommon,” which bears a superficial resemblance to the types of arrangements that are discussed below. It is necessary to figure out how property rights in such resources evolved in early times, and to develop arguments for how best to govern modern infrastructure

Objectives

Conclusion