Private Law Theory

ABSTRACT
Advocates for private property rights tend to atomize real property, dividing land into individual parcels and, legally, ‘bundles of sticks’. Only a few common-law doctrines, such as nuisance, acknowledge the potential for activities on one real estate parcel to affect either other discrete parcels or the community as a whole. In the US Supreme Court, the increasing atomization of private property rights has come about through the Court’s increasing emphasis on the right to exclude and its development of regulatory takings law in derogation of the traditional police power. In the states, in contrast, the pervasive negative reactions to the Court’s eminent domain decision in Kelo v City of New London similarly privilege individual property rights over legislative determinations of what uses of land best promote the public interest and welfare. However, real estate is never atomistic and discrete because the land itself both harbors and participates in complex adaptive systems operating at multiple scales. The result is that activity on any parcel of land has the potential to affect both other parcels and societies more generally; moreover, combination and/or cumulative alterations have the potential to induce systemic risk to entire social-ecological systems. Only in water law does the law pervasively acknowledge the connectivity of and larger public interests in land, by creating special rules for riparian properties, particularly when they involve navigable waters, to preserve and protect public rights and interests. This chapter posits that riparian law could thus serve as one model for reviving the public interest in land-as-system, providing three other examples of how land is more than a collection of real estate parcels. In particular, it argues that individual landowners-not just the general public-benefit from rules and regulations that preserve larger system function and that a benefitsensitive analysis should help to tip the balance back in favor of the public interest.

Craig, Robin Kundis, Just Add Water: The Muddy World of Private Property Rights in a Panarchal Reality (August 24, 2024) in Private Property and the Police Power (Jan Laitos ed) (forthcoming 2025).