The Affirmative Duties of Property Owners: An Essay for Tom Merrill

Robert C. Ellickson

As a result of his ownership of property, Rip Van Winkle might have incurred a variety of criminal and civil liabilities during the course of this twenty-year sleep. Possibilities are a conviction for neglecting care of his livestock, civil liability to a neighbor for having failed to contribute to the costs of a fence along a common boundary, and forfeiture of his lands for having failed to pay local property taxes. This essay investigates the nature of these affirmative obligations of owners. Concerns about curbing information costs, a central theme in Tom Merrill's scholarly works, underlie the structure of many of these duties, and help explain their relative paucity. The analysis illuminates several recent strands of property theory, including Larissa Katz's notion that a state may choose to "govern through owners."

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3 BRIGHAM-KANNER PROPERTY RIGHTS CONF. J. 43 (2014)