Public Law & Legal Theory
The common law prohibits the abandonment of real property. Perhaps it is surprising, therefore, that the following are true: (1) The common law generally permits the abandonment of chattel property; (2) The common law promotes the transfer of real property via adverse possession; and (3) the civil law permits the abandonment of real property. Because the literature on abandonment is disappointingly sparse, these three contrasts have escaped sustained scholarly analysis and criticism. This paper aims to provide a comprehensive analysis of the law of abandonment. After engaging in such an analysis, the paper finds that the common law’s flat prohibition on the abandonment of corporeal interests in real property is misguided. Legal rules prohibiting abandonment ought to be replaced with more a more permissive regime where what matters is the value of the underlying resource and the steps that the abandoning owner takes to ensure that would-be claimants are alerted to the resource’s availability. Furthermore, the law of abandonment ought to be harmonized for real property and chattels. Finally, the paper criticizes the law’s preference for adverse possession over abandonment as a means of transferring title in cases where the mechanisms might function as substitutes. In the course of analyzing the law of abandonment and offering a qualified defense of the practice, the paper provides the first workable definition of resource abandonment, develops a taxonomy of existing regimes, suggests that the abandonment of positive-value real and intellectual property is surprisingly widespread, and analyzes the costs and benefits associated with abandonment. The paper explores at some length the factors that will determine whether an owner opts for abandonment or other means for extinguishing his rights to a resource, as well as the considerations that should drive the law's receptivity to these efforts. The latter include the decision costs, transaction costs, decay costs, confusion costs, lawless race costs, and sustainability issues associated with abandonment. In addition, readers who make it through the paper will be exposed to pertinent tidbits concerning the social norms of geocaching, the anthropology of “making it rain,” the unfortunate decline of municipal bulky trash pickup, Mississippi's misguided livestock laws, and the dubious parenting choices of Jean-Jacques Rousseau.
Lior Strahilevitz, "The Right to Abandon," University of Chicago Public Law & Legal Theory Working Paper, No. 260 (2009).