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Slices and LumpsDivision and Aggregation in Law and Life$
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Lee Anne Fennell

Print publication date: 2019

Print ISBN-13: 9780226650265

Published to Chicago Scholarship Online: May 2020

DOI: 10.7208/chicago/9780226650432.001.0001

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PRINTED FROM CHICAGO SCHOLARSHIP ONLINE (www.chicago.universitypressscholarship.com). (c) Copyright University of Chicago Press, 2022. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in CHSO for personal use.date: 25 June 2022

Assembly and Division

Assembly and Division

(p.27) Two Assembly and Division
Slices and Lumps

Lee Anne Fennell

University of Chicago Press

This chapter examines the assembly and division of property entitlements. It starts with eminent domain, a forcible land assembly mechanism that has been employed to avoid holdout or “anticommons” problems, but has also produced outrage, as seen following the 2005 Supreme Court case of Kelo v. City of New London. Similar controversies arise in intellectual property contexts, as where patent licenses must be assembled. The law must determine whether the initial rights-holder will be protected against an involuntary transfer (property rule protection), or whether she can be forced to relinquish her claim upon compensation (a liability rule solution). The chapter also examines settings where co-owned land or other assets must be split up among claimants, as through judicial partition. These two types of problems—assembly and division—are not distinct, nor is one inherently harder to solve than the other. Instead, they share a common structure: each requires both assembly (of consent by the affected stakeholders, or an overriding of their lack of consent) and division (of the surplus that is thereby created). After examining factors that influence the difficulty of reconfiguration efforts, the chapter weighs various approaches, including explicit options, to address configuration challenges.

Keywords:   land assembly, eminent domain, holdout, anticommons, Kelo, property rule, liability rule, partition, patents, options

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