Article   |   Volume 160, Issue 7

Lumpy Property

By
Lee Anne Fennell

June 2012










A bridge stretching only three-quarters of the distance across a chasm is useless, while a bridge that is longer than necessary does no more good than one that just spans the gap. This standard, intuitive example of a lumpy, indivisible, or “step” good makes regular appearances in the literature on collective action. But it also illustrates a point about discontinuities and complementarities that has broad, and mostly unexplored, significance for property law. From land assemblies to takings doctrines to cotenant partitions to public housing to the numerus clausus principle, we see property delivering value—and being delivered to us—in certain identifiable, discontinuous chunks. This Article examines the implications of lumpiness for property theory and doctrine. While strains of this conceptual element run through some of the existing theoretical work on property, the ways in which lumpiness may explain, justify, and challenge features of property law have not been systematically analyzed.

Viewing property through the lens of lumpiness matters for at least three reasons. The first is descriptive accuracy. Property law is lumpy as a positive matter, filled with doctrines and approaches that deal with the world in discrete, hard-to-divide chunks. Understanding how property operates thus requires an appreciation of its lumpiness. Second, optimal property design requires evaluating the chunkiness that is built into property doctrines and asking whether and how it corresponds to underlying discontinuities in the production or consumption of property. Third, many of property law’s most important conflicts can be usefully framed as “lump versus lump.” For example, an exercise of eminent domain may achieve a valuable spatial aggregation by splitting up some other aggregation, such as lengthy temporal attachments to the land or a cohesive community that shares social capital. Recognizing the significance of nonlinearities in such stories can offer new traction on contemporary property debates.

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