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Restraint on alienation

About: Restraint on alienation is a(n) research topic. Over the lifetime, 46 publication(s) have been published within this topic receiving 360 citation(s).
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Journal ArticleDOI
Abstract: In her informative article, Inalienability and the Theory of Property Rights,' Susan Rose-Ackerman raises anew one persistent question that has worked itself into the fabric of our general law: Why should there be any restraints on the alienation of property? As stated the question is an extremely broad one. The right of alienation, as part of the bundle of property rights, is set in opposition to the rights of possession and use. The types of property to which it can extend are real and personal, tangible and intangible. Each type of property may be alienated in a number of different ways, such as by sale, hire, mortgage, lease, bail, or pledge. These various forms of alienation in turn may be restrained in many ways. The restraints may be whole or partial; they may be by common law rule or by public regulation; alienation may be subject to an absolute prohibition, or it may be exercisable only upon the payment of money. As the possible range of restraints on alienation is very broad, it is important to order the inquiry so as to exhibit its essential features. This Article first seeks to explain why the right of alienation is a normal incident of private ownership. Thereafter it seeks to examine the principled reasons for limiting the right. These justifications in turn fall into two main groups. The first set is concerned with the practical control of externalities. These may take the form of aggression against third parties, the overexploitation of the common pool, or the exploitation of infants and insane persons. Alternatively, restraints on alienation may be used to redress some asserted distributional weakness within the present allocation of rights. My central thesis is that the first justification is sound, but that the second is not. The proper office for restraints on alienation is to provide indirect control over external harms when direct means of control are ineffective to the task. In working through this analysis I start from the assumption that the core function of the law is to protect all persons and their property against the force and fraud of another. There is no doubt in my view that this simple view of entitlements between persons lies at the heart of most of our legal system, both as it developed at common law, and as it has come to be modified by statute. It is simply inconceivable to ac-

66 citations

Journal ArticleDOI
Abstract: One of the major controversies in modern intellectual property law is the extent to which property rights conceptions, developed in connection with land or other forms of tangible property, can be carried over to different forms of property, such as rights in the spectrum or in patents and copyrights. This article defends the thesis that, once the differences in the optimal duration of patents and copyrights are taken into account, the carryover of basic property conceptions from tangible to intangible property should be much encouraged. In some instances, the property rights concepts applicable to land often work even better for intangible property because some of the difficulties in designing land-based systems disappear. The short life of patents, for example, obviates the need to create rules dealing with restraints on alienation over time. This article also critiques the recent development in eBay v. MercExchange that has limited the availability of injunctions in protecting exclusive rights of patent use. In a similar fashion, the article also notes that the limitations on rights of alienation in the spectrum create major social losses, as does the use of the patent exhaustion rule in the licensing of intellectual property, as applied by the Supreme Court in Quanta v. LG Electronics.

48 citations

Journal ArticleDOI
Abstract: This article discusses a basic paradox at the core of liberal property law.' Individual freedom to dispose of consolidated bundles of rights cannot simultaneously be allowed and fully maintained. If the donor of a property interest tries to restrict the donee's freedom to dispose of that interest, the legal system, in deciding whether to enforce or void that restriction, must resolve whose freedom it will protect, that of the donor or that of the donee.

29 citations

Journal ArticleDOI

26 citations

Journal ArticleDOI
Abstract: Of all areas of law, it is property, particularly as it relates to housing and home, which affects people most consistently and directly Yet, while people are intensely interested in property, the laws, doctrines, and policies that govern the acquisition, accumulation, management, and transfer of resources variously operate to conceal their effects on (some types of) property subjects This article explores how the traditional methodologies of property law scholarship, centred on the status quo of established rights, obligations, and duties, and invoking the ‘property values’ of certainty, autonomy, and efficiency, have been applied in English law to prioritize the claims of ‘more propertied’ parties and marginalize the claims of ‘less-propertied’ parties The article raises questions concerning the role of both property law and property scholarship: is it to understand and make the best out of the available material, to achieve or support change in a progressive (or progressive but incremental) way, or to contribute to, or at least not prevent, progress towards greater substantive equality between property’s ‘insiders’ and ‘outsiders’? In exploring these questions, I reflect on the hidden politics of English property discourse and its effect on the (in)visibility of the property outsider within legal analyses, arguments, and decision-making Finally, this analysis is related to a series of ‘property problems’ in which more and less-propertied parties compete for ownership or access to resources, with the aims of considering an approach to problem-based property scholarship that spotlights the ‘property outsider’ and reflecting on the implications of this approach for normative arguments invoking ‘property’s values’

18 citations

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No. of papers in the topic in previous years