FORCINGS

Eminent domain receives enormous amounts of scholarly and popular attention, and for good reason—it is a powerful form of government coercion that cuts to the heart of ownership. But a mirror-image form of government coercion has been almost entirely ignored: forced ownership, or “forcings.” While legal compulsion to begin or continue ownership is neither entirely unstudied as an academic matter nor entirely unprecedented as a doctrinal matter, the category lacks a unified treatment. Because coercively imposed ownership can substitute for other forms of government coercion, forcings deserve attention, even if they will rarely dominate other alternatives. Attending to forcings as a conceptual possibility reveals their kinship with existing features of law and highlights one of ownership’s most essential moves: delivering actual outcomes, and not just their expected value equivalents. Unpacking the considerations that might prompt law to impose ownership on unwilling parties points the way to alternatives short of full-strength compelled ownership. The analysis also suggests an additional domain of government action—“relievings”—for unburdening owners of unwanted property.

* Max Pam Professor of Law, University of Chicago Law School. I am grateful to Gani Aldashev, Kenneth Ayotte, Shawn Bayern, Vicki Been, Hanoch Dagan, Giuseppe Dari-Mattiacci, Dhammika Dharmapala, Christopher Fennell, Andrew Gold, Bernard Harcourt, David Hasen, Adam Hirsch, Shi-Ling Hsu, Aziz Huq, Larissa Katz, Daniel Kelly, Jake Linford, Anup Malani, Jonathan Nash, Eduardo Peñalver, James Penner, Ariel Porat, Margaret Schilt, Henry Smith, Lior Strahilevitz, Hannah Wiseman, Katrina Wyman, two anonymous reviewers, and participants in faculty workshops at Chicago-Kent College of Law, Florida State University College of Law, Tulane University Law School, the University of Chicago Law School, the University of Colorado Law School, the University of Virginia School of Law, the 2013 NYU Property Theory Workshop, the Institutions of Property Rights Workshop at the Free University of Bozen, and the 2014 Annual Meeting of the American Law and Economics Association for helpful comments and conversations on earlier drafts. I thank Kristin Czubkowski for excellent research assistance. Research support from the Stuart C. and JoAnn Nathan Faculty Fund, the Harold J. Green Faculty Fund, and the Lynde and Harry Bradley Foundation is also gratefully acknowledged.

Article

Lee Anne Fennell*