Document Type

Article

Publication Title

California Western Law Review

Abstract

In this article, therefore, I address two major questions. In part one I shall examine what a general theory of property rights has to say about the anticipated shape and variety of property rights in different forms of resources. In particular, I look at two features that I think account for the importance of property rights, their universality and their utility, and show how these relate to the traditional rules of property-acquisition, protection and transfer. Part two then continues this inquiry by asking how the same set of general considerations leads to a wide range of different solutions to the property rights problem as we move away from land and chattels to other natural resources or intangibles, such as information. Part three examines two discrete and important areas of public regulation-land use planning and government regulation of employment markets-in order to show how they are inconsistent with the basic system of property rights (with all its own internal diversity) developed in the first portion of the article. One conclusion comes clear. Many of the naive theories about the absolute nature of property rights are falsified by common social practices and legal rules in dealing with property rights both for land, and especially after the transition to natural resources, such as water and oil and gas, and intellectual property. But none of the sensible legal adaptations of the standard rules of property come close to offering any justification for the extensive forms of government regulation that are routinely adopted and defended with respect to both land use planning and labor markets. The ideal state may not be as small as some defenders of the nightwatchman state envision, but it is far smaller than the advocates of central government planning propose.

First Page

187

Volume

29

Publication Date

1992

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