The editors of the Harvard Law Review respectfully dedicate the March 2009 issue to Professor Oliver Oldman.
April 14, 2009
More from this Issue
Vol. 122 No. 5 This is a challenging moment for the law of discrimination. The state’s role in discrimination has largely shifted from requiring discrimination – through official policies such as segregation – to prohibiting discrimination – through federal laws covering areas such as employment, housing, education, and public accommodations. Yet the problem of discrimination persists, often in forms that are hard to regulate or even to recognize.
Vol. 122 No. 5 In recent years, the right to exclude has dominated property theory, relegating alienability – another of the standard incidents of ownership – to the scholarly shadows. Law and economics has also long neglected inalienability, despite its inclusion in Calabresi and Melamed’s Cathedral. In this Article, I explore inalienability rules as tools for achieving efficiency or other ends when applied to resources that society generally views as appropriate objects of market transactions. Specifically, I focus on inalienability's capacity to alter upstream decisions by would-be resellers about whether to acquire an entitlement in the first place. By influencing these acquisition decisions, inalienability rules can buttress or substitute for other adjustments to the property bundle in addressing resource dilemmas. Of particular interest is the possibility that limits on alienability could sidestep the holdout problems that have often spurred resort to liability rules, and could do so without interfering as profoundly with the owner's autonomy interests. While alienability limits carry well-known disadvantages, they might be structured in ways that would minimize those drawbacks. Recognizing the full potential of alienability limits in addressing resource dilemmas requires applying the same level of creativity to devising inalienability rules as has previously been applied to the design of liability rules.
Vol. 122 No. 5