Jack Whiteley (University of Minnesota School of Law), Property’s Climate, 111 Minn. L. Rev. (forthcoming 2026) on SSRN. Here is the abstract:
Over the past two centuries, property jurisprudence has encouraged climate change through decisions that were not required by private property rights. In disputes between landowners over coal and oil, courts crafted rules that spurred carbon emissions. And in disputes over land, courts developed doctrines that diminished forests. These doctrines, with names like the rule of capture, the dominant mineral estate, adverse possession, and waste, were common law choices that might have gone otherwise.
In this Article, I collect these doctrines and explore their lessons for property’s past and future. Scholars widely agree that property law has had a great influence on economic development, but these doctrines reveal that property law has contributed to specific aspects of the economy that are unsustainable. There were costs to the law’s past preferences. They also reveal how, just as the common law once changed to encourage certain kinds of development, property law should continue to evolve, taking account of what we know about the world, and what the judges of the past did not.
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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