J.B. Ruhl (Vanderbilt University Law School) and James E. Salzman (University of California, Santa Barbara & UCLA School of Law), Property Law for Positive Externalities: Carving New Sticks for the Bundle, 67 Wm. & Mary L. Rev. 803 (2026) on SSRN. Here is the abstract:
Property law has long confronted a troubling puzzle: Why does doctrine focus so much on eliminating harms flowing as negative externalities from uses of property—curbing pollution, nuisances, and other harmful land uses—while largely ignoring the potential to encourage positive externalities? Why such a strong focus on preventing bads instead of promoting goods? Using a case of a natural capital resource and the ecosystem services of flood control, water purification, and pollination it provides, this Article explains how and why existing doctrine fails to recognize these benefits as distinct property interests, leading to systematic underinvestment in conservation and service provision. We propose two doctrinal innovations: the Natural Capital Servitude, modeled on the profit à prendre, and the severable Natural Capital Estate, which enables landowners to sever and transfer rights to natural capital the same way a mineral estate is severed. Our proposals have implications beyond environmental protection, providing practical and new models to promote the positive externalities of historic preservation, urban infrastructure, and other land uses. This Article thus provides a foundation for rethinking property law’s role in fostering beneficial land uses, bridging the gap between traditional doctrines and twenty-first century challenges.
Highly Recommended!
Readers interested in this paper may also be interested in a new Lexicon entry: Legal Theory Lexicon 113: Property Theory.
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