Our legal regimes are crafted in a way that asserts control over a certain physical three-dimensional space. Some property regimes assert dominion over a vertical three-dimensional column, such as ownership of land that includes certain resources that are vertically related to it above and below the ground. Other property regimes, however, control resources on the horizontal axis. For example, legal control over a footpath exerts a kind of horizontal dominion over the space of and around the footpath. This article offers a conceptual framework for unpacking the spatial geometry of our property regimes and underscores its significance for policy and institutional design. It shows, importantly, that the compatibility between the space over which a regime holds control, and the space that is occupied by a particular resource, has profound implications. A misalignment between the two – for example, when a vertical regime is applied to a horizontal resource – implicates how well the regime functions. After laying out the conceptual framework, the article illustrates its application to a contemporary problem of extracting wind energy.
The geometry of property
For helpful comments and conversations at various stages of this project I am grateful to Tanya Aplin, Karen Bradshaw, Richard Briffault, Richard Brooks, Michael Burger, Hanoch Dagan, Lee Anne Fennell, Daniel Francis, Michael Gerard, Victor Goldberg, Jeff S Gordon, Zohar Goshen, Michael Heller, Madhav Khosla, Lewis Kornhauser, Thomas Merrill, Hari Osofsky, Richard Revesz, Irit Samet-Porat, David Schorr, Henry Smith, and Katrina Wyman. I am also grateful to participants of the American Law and Economics Association annual meeting, Property Works in Progress Workshop at Northeastern University Law School, Association for Law, Property, and Society annual meeting at University of Michigan, Sabin Colloquium on Innovative Environmental Law Scholarship at Columbia Law School, Environmental Scholars Workshop at University of Washington, Mismatched Property Rights conference at New York University School of Law, and the Associates’ and Fellows’ Workshop at Columbia Law School. Sophie Janus provided excellent research assistance.