Property law focuses predominantly on spatial conflicts of interest between neighbors but neglects temporal conflicts between generations. This lack of attention to the temporal dimension leads to a troubling mismatch in property law: while property rights last forever, the corresponding duties that require property holders to respect the interests of others are remarkably short lived. The result is that property law currently does not adequately protect the rights of future generations. In this Article, we offer a blueprint for correcting this anomaly. We advocate a change in the current conception of property and propose that property law focus more on intertemporal conflicts of interest. This new conceptualization provides greater consideration to intertemporal externalities and the problems of overconsumption and overuse by current property holders, so that property law can better protect the rights of future generations. This type of protection is needed now more than ever, with the growing recognition that the climate crisis represents a catastrophic failure on our part to respect the interests of those who will come after us. We discuss the implementation of our proposal, demonstrate its benefits, and explain its origins within the existing structure of property law.
Introduction
Property scholarship and theory focus overwhelmingly on the spatial aspect of property.1 Property law delineates physical boundaries between assets,2 divides resources into areas of control and ownership,3 regulates spillovers from one place to another, and sanctions unauthorized crossings of boundaries. Household concepts such as trespass,4 easement,5 and nuisance6 primarily regulate spatial conflicts of interest. Trespass occurs when an owner’s boundary is breached by another;7 easements describe situations when an owner’s boundary may be crossed;8 and nuisance concerns instances in which noise, odors, and other harmful effects cross over from one place to another.9 Such doctrines typically balance the rights and duties of contemporary neighbors across spatial boundaries.
This Article explores another dimension of property law: its largely neglected temporal aspect. The temporal dimension of property illuminates spillovers across time, rather than across spatial boundaries, and conflicts between generations of right holders, rather than between contemporary neighbors. This conceptual shift raises an urgent question: whether, and to what extent, current property holders have obligations toward future generations—i.e., others who are not yet here and will come into play in the (distant) future. Our goal is to consider the need to expand and develop the obligations of property holders to such future owners and third parties. This inquiry is particularly pressing. As evidence of impending environmental catastrophes continues to accumulate,10 it is becoming clear that existing legal institutions are failing future generations. At a time when policymakers are being called upon to respond to the climate crisis, we offer a new way to address this challenge.11
We begin our analysis by showing that existing property law doctrine fails to adequately address the interests of future generations.12 The traditional view of property, shared by property theorists and policymakers, is that property rights induce current right holders to look far into the future and consider the interests of future stakeholders because property rights continue indefinitely.13 Since the right of current owners lasts forever, they should want to maximize the value of their assets and resources for all eternity and avoid overconsumption and overuse.14 Property theorists regard this claim as one of the fundamental justifications for the existence of property rights.15
We show that this classic argument is unconvincing. The value of their assets hundreds or thousands of years in the future is of little concern to rational, present-day property holders, and the fact that one theoretically owns Greenacre indefinitely provides no true incentive to avoid overconsumption. Market forces may induce owners to preserve the value of their assets decades into the future, but not centuries. Moreover, cognitive biases that cause owners to focus on the present make it even harder for them to consider the value of their assets far into the future.
We also show that doctrinal limitations on the power of property holders or their duties toward others fail to adequately protect the interests of future generations. This is because these doctrinal elements focus predominantly on spatial, rather than temporal, conflicts of interest. Indeed, property law doctrine is designed to compel right holders to respect the interests of their current neighbors but does not limit their power in ways that are required to protect the interests of future generations. The doctrine of nuisance, for example, places some limit on the power of property owners and forces them to use their property in a way that does not harm the owners of adjacent properties.16 Nuisance, however, does not require an owner to act in a way that respects the interests of future right holders.17 Zoning and planning law, which could take the interests of future generations into account, also largely fails to do so. Based on empirical research we conducted into zoning laws of several municipalities in the United States, we show that the law focuses primarily on the here and now, and does little to protect the interests of future generations.18 This general phenomenon leads to a temporal mismatch in property law: while property rights are granted forever, the corresponding duties that are supposed to require property holders to respect the interests of others are largely limited to the present or near future.
Based on this analysis, this Article proposes reforms designed to enable property law to better serve the interests of future generations.19 We propose to do this by addressing the temporal mismatch described above. We propose that existing doctrines that impose duties on property right holders vis-à-vis their current neighbors be stretched over time so that they provide similar protections to future stakeholders. A key example is the doctrine of waste,20 a longstanding and now rarely used element of property law21 that prohibits property holders from using their assets in ways that leave nothing for the next holder (under certain conditions).22 We propose to expand this doctrine so that it protects not only the holders immediately succeeding the current one, but also those far into the future. These new and innovative solutions are based, among others, on classic property law, theory, and doctrine. We suggest that the solutions needed to bring property law into the future include looking into its origins to revive and revitalize its past.
We detail the procedural and institutional aspects of our proposal and explain why the rights of future generations should be protected within the framework of property law, not only by centralized regulation. As a decentralized system that vests decision-making power in individuals, property law has significant informational advantages that complement the knowledge of central regulators. We suggest that it would be unwise to renounce property law as a means for asserting the rights of future generations, and advocate for allowing present-day claimants to represent such interests in court.
In developing these arguments, this Article makes three novel and timely contributions. The first is conceptual, shifting the focus of property law from spatial to temporal conflicts of interest. This is a key conceptual step because it offers a new perspective on the goals and potential benefits of property law. The second contribution is analytical, exposing structural flaws in the existing framework of property law and debunking the core arguments used by property theorists to justify the existing structure of this area of law. The third contribution is normative, with immediate policy implications: this Article proposes important reforms to improve our ability to contend with the consequences of decisions that affect the future. Policymakers are already being called upon to address the climate crisis, one of the greatest challenges of our time. Recently, the U.S. Senate passed what may be the largest spending package on climate in American history.23 The ramifications of climate change are likely to be felt by everyone on Earth,24 but most acutely by those with fewer resources.25 Reforms that improve our ability to cope with urgent climate concerns should be considered as part of the necessary future of property law.
This Article proceeds as follows: Part I describes the concept of intertemporal conflicts of interest and explains the problem of overuse and overconsumption by current property holders. It then reviews the scholarly consensus on the ability of property law to solve these problems. Because property rights last forever, scholars assume that property holders seek to optimize the value of their assets for all eternity. Part II challenges this scholarly consensus on two grounds. First, the value of assets in the far future, hundreds of years from now, has no real bearing on the current values of assets. Therefore, rational welfare-maximizing right holders will not consider such future values in their decisions and will tend to overconsume. Second, cognitive biases will cause right holders to focus more on the present and prevent them from properly assessing long-term interests.26 Part III discusses doctrinal elements that limit the power of property holders, showing that they require right holders to respect primarily the interests of their current neighbors, and neglect to give voice to the interests of future generations. It highlights the temporal mismatch we find in property doctrine: whereas property rights last forever, property duties, the doctrines that are supposed to make property holders consider the interests of others, are time limited. Based on this analysis, we explain our proposed reforms to property law in Part IV. We propose to fix the temporal mismatch that currently exists in property law doctrine by extending property holders’ duties into the future. This will create a more balanced property law, where both the property right and the associated duties exist over similar time periods. In this Part, we also discuss the implementation of the proposed reforms and show the normative justifications for them. A brief conclusion follows.
I. The Temporal Tragedy and Its Supposed Solution
In this Part, we explain the problem of overuse by current owners under the title of the temporal tragedy of the commons. Next, we describe the supposed solution to this problem offered by property law theorists: the forevership or the everlasting property right.27
A. The Temporal Tragedy of the Commons
In their broadest sense, externalities are the effects of one actor on the wellbeing of another;28 negative externalities are those that are inherently detrimental.29 The concept of negative externalities is central to legal thinking. Legal scholars have long seen the prevalence of negative externalities as a primary justification for legal action.30 Thus, if one’s activities prove harmful to others, legal intervention may be necessary to internalize the negative externalities,31 to create incentives for actors to avoid harming others,32 or to induce the use of precautionary measures.33
Negative externalities are usually discussed and explained with reference to space and location. Consider the paradigmatic examples of externalities discussed in the literature: straying cattle,34 factories polluting nearby waters,35 or train sparks flying into nearby fields.36 These are all examples of spatial negative externalities, where activities in one location detrimentally affect neighboring locations, usually by crossing a spatial boundary.
By comparison, scholarly discussion of temporal externalities is sparse. Temporal externalities are, in fact, ubiquitous: people’s activities can adversely affect their neighbors not only across spatial boundaries but also across time spans.37 To illustrate, suppose you own a patch of woodland and face the choice of cutting down the trees, leaving them as they are, or choosing something in between. Whichever you choose, your decision will affect future interest holders. If you decide to cut down all the trees, the lack of trees could impact the view for decades. Removing the trees could have implications for how the soil holds in a century, the amount of greenhouse gases that will be in the atmosphere, and so on. If you decide to invest in cultivation or refrain from removing the trees, your decision will also have consequences for the future.38 As another example, suppose you have decided to bury chemicals in the ground for storage. Even if these chemicals are not harmful today, they may leak in a few decades or centuries and contaminate the soil and groundwater.39 Similarly, agricultural chemicals used on crops in the present can have latent health effects. In all these examples, actions taken by individuals today have consequences beyond the present, across time and temporal boundaries.
Temporal spillover effects can manifest over a short period of time, such as when a current polluting landowner becomes insolvent and leaves the site’s cleanup to immediate successors.40 Temporal spillover effects can also manifest over longer periods of time, as in the examples of soil stability,41 species population health,42 and climatic changes.43 Longer-term spillover effects may be due to latent harm (e.g., chemical storage) or cumulative harms that accumulate slowly over time (e.g., species decline or habitat loss). Certain activities can have both spatial and temporal spillover effects. Consider, for example, the case of buried tanks used for chemical waste storage. The chemicals could leak into the neighboring properties, creating a spatial spillover effect. In addition, the storage tanks could slowly erode over time, eventually contaminating the plot in which they are buried, creating a temporal spillover effect.44
Some temporal impacts may be internalized by the current owner or a potential buyer in the near future. If the harm is evident at the time buyers seek to purchase the asset, they can take the harm into consideration and factor it into the price they are willing to pay for the asset. Returning to the examples above, if buyers know that the current owner has spilled dangerous chemicals or has eroded the soil by uprooting trees, they will be willing to pay less for the parcel (as compared to the price they would otherwise be willing to pay absent the long-term impacts). In such a case, indeed, the temporal spillover has been internalized. But, importantly, that is often not the case. Rather, this kind of purchasers’ dynamic will neither address the harm, nor provide enough of a reason to do so. The detailed reasons as to why this type of solution often fails to fully account for intertemporal harms is discussed in Part III.
The problem of externalities is closely related to overuse, as illustrated in Garrett Hardin’s The Tragedy of the Commons.45 If goods, chattels, or land are held in common, there is an incentive for each holder to increase their consumption without regard to the efficient use of the resource as a whole.46 Thus, if a common pasture is used simultaneously by multiple herdsmen, they will each seek to increase the size of their herd to extract as much value as possible from the common resource.47 Eventually, this dynamic will lead to the depletion of the resource.48 Another example of tragic overuse is that of marine debris and plastic pollution. The ocean, a shared resource, is systematically overused by individual stakeholders.49 These examples illustrate a general problem of divergence between private incentives and public interest: each actor competes to consume as much as possible of the common resource without considering the overall appropriate use of the resource and the legitimate needs of others.
The tragedy of the commons is typically conceptualized in spatial terms.50 The common grazing ground and the ocean are shared spaces. The distortion of incentives occurs because different users can all draw value from the same space. This spatial aspect of the tragedy of the commons is usually described as a coordination problem between multiple current users: too many herdsmen use the same grazing ground, and too many polluters dump too much plastic in the ocean.51 Solutions to the tragedy of the commons are similarly presented in spatial terms. For example, one solution is to divide the common grazing ground into smaller areas, or private plots.52 Another is to assign the entire space to one owner.53 In either case, each plot will belong to one user, who will utilize it efficiently and not overuse it.54
The tragedy of the commons also has an important temporal dimension related to coordination between users across time periods. Strong temporal implications can be observed in the classic tragedy of the commons scenarios. For example, the fact that too many herdsmen currently use the grazing ground could mean that nothing will be left for future generations.55 But a temporal tragedy of the commons can occur even if there are no multiple current users. Each individual current owner effectively shares the asset with a potentially infinite number of future owners. They share the same resource across time, creating a temporal commons that is prone to overuse because the current user has an incentive to extract as much as possible from it, without regard to the needs of future users and to the appropriate use of the resource as a whole. The temporal tragedy of the commons is more pressing now than ever, with rising concerns about climate change and global warming.56 The climate crisis embodies the broader problem of resource use without regard for the welfare of future stakeholders.
B. The Forevership
Property rights are widely considered a key solution to the tragedy of the commons.57 Property rights force right holders to internalize costs that they would not otherwise take into account.58 The existence of property rights also allows owners to enter into agreements that address social costs that would not otherwise be mitigated by the owners themselves.59 Thus, if the grazing ground is given to a single owner, or it is divided into smaller, private lots,60 owners will each use their plot efficiently and responsibly, without overconsumption or overuse.61 Each owner fully bears the cost of any reduction in the usefulness of the land and will therefore utilize it efficiently. The owner will also charge other potential users who wish to enjoy the ground, preventing them from overconsuming. Scholars and policymakers therefore believe that property rights are necessary to avoid the ills of common ownership and the tragic consequences of overconsumption.62
Property rights are not only thought to provide a solution to the spatial aspects of resource management, but also to the temporal aspect of the tragedy of the commons because property rights are not limited in time but rather last forever.63 An everlasting property right is supposed to ensure that assets are not shared across time between multiple users, but that each asset is held by only one owner over different periods of time. Presumably, this owner has an incentive to consume responsibly to make sure that the asset remains beneficial in the future.64
To illustrate this point, consider the hypothetical possibility of temporary, time-limited property rights. If property rights were temporary and expired after, say, one year, the current owners of the grazing ground would know that they can benefit from the resource only here and now. Therefore, they would have an incentive to overconsume and take as much as they can in one year of ownership, leaving nothing for subsequent holders—creating temporal overuse. “Forevership,” the everlasting property right, is intended to prevent this tragedy. Under forevership, current owners no longer share the asset with future owners, rather they are sole owners who know that they can benefit from all future streams of income and will therefore seek to maximize the value of the asset not only in the present but over time as well. They will avoid temporal overuse and premature use because they are the ones who will bear both the costs and benefits of the use patterns in the long term. Once the forevership is introduced, property holders have an incentive to invest, improve, and protect the resources and assets under their control because they expect to reap the benefits of those investments over time.65 When people feel secure in their time horizons, they are more likely to invest in asset development, maximizing its value both in the present and in the future.66 Conversely, without the ability to reap long-term gains, there is no rational reason to invest in long-term projects or cultivation.
The fact that everlasting property rights help overcome the temporal aspect of the tragedy of the commons is key to property law theory and is considered one of the fundamental justifications for the existence of property rights. Robert Ellickson provided the classic justification for everlasting property rights. The “infinite time-horizon,” according to Ellickson, is “the economic ideal.”67 Ellickson stated that the forevership can solve the tragedy of the commons far into the future, maintaining that a perpetual estate “is a low-transaction cost device for inducing a mortal landowner to conserve natural resources for future generations.”68 He further explained that “the key to land conservation is to bestow upon living persons property rights that extend perpetually into the future.”69 Theoretically, the forevership structure of the fee simple is intended to overcome temporal spillover effects and encourage owners to make the right decisions between harvesting now or later, and investing now, later, or not at all. Richard Epstein explained that permanent ownership is a solution to temporal externalities because it forces owners to “make intelligent choices between investment, consumption, and saving,” and to “fully internalize[] any decision to compromise the value of the land.”70 Lee Anne Fennell explained that “the unlimited time horizon encourages owners to make the right choices between chopping down trees now or letting them grow into larger trees.”71 Rational beings are expected to be able to see and consider all the implications of their actions, including far into the future. The standard model predicts that right holders should strive to invest in ways that promote the interests of future generations and avoid overconsumption. According to this standard account, property not only increases the value of assets but also “has powerful positive implications for environmental protection.”72
Doctrine follows this fundamental rationale. In the case of property rights in land, the standard form of right is the fee simple absolute (or fee simple, for short).73 Almost all privately owned land in the United States is held in fee simple absolute,74 which is not time limited but lasts forever.75 We call this form of property right “forevership” to highlight its perpetual nature. This type of indefinite tenure is limited not by time but “only by the durability of the legal and political structures that support the estate.”76
II. Challenging the Standard Justification
In this Part, we argue that everlasting property rights fail to deliver on their promise. We challenge the standard justification of forevership on two grounds. First, the fundamental economic justification for property rights itself appears to be time limited because rational actors do not sufficiently benefit from the state of events too far into the future. Second, cognitive biases prevent us from truly “seeing” our future selves, let alone future generations and future third parties.
A. The Rational Time Horizon
One of the fundamental justifications for property rights is that a forevership property right provides an incentive to owners to invest in their assets and protect their future value. Supposedly, “[t]he current market value of a fee in Blackacre is the discounted present value of the eternal stream of rights and duties that attach to Blackacre.”77 This means that the benefits of a forevership are already included in the price of the asset in the present. Therefore, “[a] rational and self-interested fee owner . . . adopts a [sic] infinite planning horizon when considering how to use his parcel, and is spurred to install cost-justified permanent improvements and to avoid premature exploitation of resources.”78 In other words, owners want to maximize the future value of their assets because those future values are manifested in the current market values of their assets.
But this assumption holds only up to a point. To illustrate, assume that the owners of Greenacre are considering using pesticides that will greatly increase yields in the short term but will render the land barren in fifty years. The use of such pesticides will have a dramatic and immediate negative effect on the current value of Greenacre, so the owners will avoid them. The owners, who may want to sell Greenacre, or leave it to their children, do not want to reduce its future value. In this way, forevership indeed ensures efficient use of resources, as scholars suggest.79 But this mechanism works only for the relatively near future. Assume now that the pesticides will indeed render the land barren but only in five hundred years. Under this assumption, a rational, self-interested owner will use harmful pesticides to enjoy higher short-term profits. The use of pesticides will not affect the welfare of the present owners or their children or grandchildren. Nor will it affect the market price of Greenacre; potential buyers, like the original owners, will be indifferent to the state of Greenacre in five hundred years. Even if Greenacre remains with the current owners’ heirs indefinitely, the heirs who will hold it in five hundred years are complete strangers to the current owners, and the current owners will not consider their welfare in deciding whether to use the pesticides.
This is true because of the temporal utility function of the current owners. Far enough into the future, a rational current owner benefits only marginally from any investment in the asset, or lack thereof. Even using a low discount rate in combination with a relatively long-time horizon suggests that there is a point beyond which individuals are indifferent to the costs and benefits of their investment and consumption decisions.80 In other words, the current value of long-term benefits is negligible. Once benefits are so distant in time, they are no longer relevant to decision-making.81 Rational owners in the present may consider the effects of their actions on the near, but not the distant, future.
Property rights indeed last forever, but their ability to resolve the temporal aspect of the tragedy of the commons is limited to the relatively near future. Forevership does not truly induce the current owner to adopt an “infinite planning horizon,” as scholars claim;82 rather, it only induces them to consider changes in the value of Greenacre that are relevant to the contemporary holders or potential buyers. In other words, beyond some point in time, the “everlasting” property right can no longer effectively align the owner’s interest with that of the public. We cannot pinpoint the exact location of this time horizon. We can say with some confidence, however, that granting a forevership induces current owners to care about the value of their assets fifty years in the future, but probably not five hundred years; somewhere between these two time points lies the temporal horizon of the effectiveness of the “everlasting” property right.
The temporal horizon of forevership has important implications for understanding property rights. As mentioned, property rights in the Anglo-American tradition last forever. However, their effects in inducing efficient use by current owners are relatively time limited, meaning that the temporal tragedy of the commons reappears even after property rights are introduced. Even if property rights are in place, owners will tend to use their resources without considering long-term effects far into the future and will fail to consider the interests of future generations. The result is that while right holders may be motivated to enhance revenue streams in the near future or medium term, the further in the future these revenues are, the less likely they are to care or act to maximize the value of the asset. Far enough into the future, the fundamental justification for property rights simply does not hold.
Worse, indefinite property rights not only fail to solve the temporal tragedy of the commons, but they might also exacerbate it. As noted, the common belief is that everlasting property rights overcome the temporal tragedy of the commons and ensure the conservation of resources. By creating this illusion, property rights give a false impression that the problem is solved or does not exist.83 This makes the temporal tragedy of the commons more intractable, harder to recognize, and more difficult to mitigate.
The fact that far enough into the future our incentives diminish does not mean that the motivation to invest does not exist for the near future or that property is useless in creating incentives for investment altogether. Indeed, a time horizon that is not too short is necessary to motivate people to care about and invest in the asset. Think of a time in your life when you lived in a short-term rental. Would you invest in hanging pictures on the walls, upgrading the electrical wiring, or installing a pricy solar panel? Probably not, or at least not as much as you would if you were planning on living there longer. It may also be the case that an infinite duration encourages owners to think in terms of longer time periods rather than shorter ones and, in that sense, is useful at least in extending the investment horizon.84 The intuition behind the property timeline thus still holds; it just does not hold forever.
B. The Biased Time Horizon
We have shown above that even if owners are fully rational, forevership does not truly solve the temporal tragedy of the commons and does not induce owners to fully consider the interests of future generations, as opposed to those of near-term future owners. In this Section, we show that the ability of property rights to solve the temporal tragedy of the commons is even more limited when the possibility of cognitive biases is included in the analysis.
Many behavioral studies have pointed out biases in our temporal perceptions and decision-making processes. In addition to considering how decision makers consider present and future rewards, evidence from the field of cognitive psychology shows that the way we perceive ourselves and our emotions over time, and the way we perceive time itself, may also influence intertemporal decision-making.85 Different biases hinder people’s ability to identify with their future selves and cause them to prefer short-term benefits over long-term interests.86 We refer to these biases collectively as present-day biases.87 Such biases have clear implications for decision-making88 and for owners’ behavior in managing their property. If cognitive biases prevent the owners of Greenacre from fully identifying with their future selves, it will cause them to prefer present, short-term gains, overconsume, and underinvest in the future value of their property.
The effect of present-day biases is often illustrated by studies on retirement savings. In a well-known study, participants were asked to indicate how much they were willing to invest—in the present—in their retirement funds, the benefits of which would be reaped in the future. Before deciding how much to invest, some of the participants were shown a computerized “avatar” of themselves at age seventy, while members of the control group (randomly selected) were not shown such a rendered image.89 The study found that participants who had been virtually exposed to their future selves had contributed twice as much to their retirement as did participants in the control group.90
A failure of imagination on the temporal dimension appears to fundamentally change our decision-making process and affect its outcomes. This cognitive limitation of our temporal decision-making is pervasive and persistent. Anyone who has put off a task or postponed a workout until next week has experienced a form of this bias. Even in those small tasks, the way we perceive ourselves in time may influence intertemporal decision-making.91 There is increasing empirical evidence that we not only disconnect our present selves from our future selves, but also perceive and treat our future selves as someone else altogether.92
These cognitive limitations reinforce the temporal tragedy of the commons. Even if one owner supposedly holds an asset indefinitely, the tragedy of the commons resurfaces, as “multiple selves” share the asset over time. Thus, we make decisions that favor our current self, even if this means retaining a small benefit now instead of a much larger one for our future self, which we consider to be a stranger.93 This cognitive tendency also has a biological explanation. The human brain is wired to respond better to direct and present threats than to future, potential ones.94 Individuals systematically favor their present self in pursuit of short-term gain over their future interests and long-term goals.95 Such tendencies are well documented in many contexts, including saving for retirement,96 procrastination,97 exercise,98 and weight loss.99
It is important for our discussion to note that present-day biases are greatly exacerbated the further people are required to project their self-image into the future.100 The further in the future our decision-making is expected to affect us, the more difficult it is for us to imagine its effects.101 Thus, if we are bad at deciding something that may affect us in a year (recall the examples of putting off a task or workout), we are even worse at making decisions that affect us and others a few decades hence.102
Decisions that affect the distant future are exceptionally difficult to make also because of their inherent uncertainty.103 Cognitive and informational limitations therefore impede effective decision-making. Temporal spillover effects are difficult to assess and calculate.104 The further in the future the harm is, the more difficult it is to evaluate.105 This is true, for example, for actions such as drilling for oil and gas106 or capturing the benefits of agglomeration in urban areas.107
All of this combined makes it inherently difficult for us to act on behalf of our future selves, and it makes it even more difficult (or, cognitively, nearly impossible) to act empathically toward future generations, particularly those unknown and unrelated to us.108 These natural cognitive limitations make the scholarly consensus, according to which property right holders will consider an “infinite planning horizon,”109 all the more unlikely.
III. The Temporal Mismatch
Our analysis above has shown that forevership does not truly solve the temporal tragedy of the commons, at least not for the distant future. Current owners do not care about the value of their assets five hundred years from now, so granting them a forevership does not induce them to invest optimally and avoid overuse when such long time frames are considered.
Another way to protect the interests of future generations would be to limit the power of current property holders. The law often restricts property rights, and such restrictions could theoretically be used to explicitly direct current property holders to avoid overconsumption and to generally consider the interests of future generations. As we show below, however, existing restrictions on property rights largely fail in this regard. This is because restrictions on property rights tend to focus on the present or near future and are not designed to limit property rights in the way necessary for protecting stakeholders far into the future. In this sense, the fundamental structure of property law provides a troubling temporal mismatch: property rights are given forever, but the corresponding duties of the right holder to prevent the abuse of property rights are primarily focused on the present and near future.
A. Existing Property Law Doctrines
“Property rights are not absolute.”110 Property law provides mechanisms that limit the owner’s rights and ensure that owners consider the interests of others.111 The nuisance doctrine112 is a classic example of this, intended to force owners to consider the legitimate interests of their neighbors, and to some extent, the interests of the general public.113 These limitations protect mostly the interests of current stakeholders, however, and not those of future generations.114 If owners use their land in ways that would render it unusable in the distant future, the future owner cannot bring a nuisance claim against the present one. The doctrine of nuisance does not give a voice to absentee claimants. There simply are not many ways to protect the interests of those that are not here (yet). This creates a fundamental mismatch between the temporal horizon of the entitlement, which is forever, and the effectiveness of any restriction on that right, which is conspicuously time limited.115
Property law also imposes restrictions or conditions on future transfers of title. A fee-tail estate, for example, imposes restrictions on the transfer of title down the line.116 The same is true of the rule against perpetuities, now largely abolished in many U.S. states and in the United Kingdom.117 These doctrines restrict certain types of transfers and, in this sense, affect future generations. Yet, these doctrines, to the extent they remain in effect today, impose restrictions only on the future transferability of assets. They were never intended to impose direct obligations on present holders toward future generations. If anything, the opposite is true: these doctrines impose restrictions on future generations based on the wishes of present holders.
The traditional common law doctrine of waste did consider future owners to some extent. The doctrine originated in twelfth-century feudal England118 and later found its way across the Atlantic into U.S. law.119 Its primary goal was to mediate conflicts between right holders who had a legal interest in the same asset at different times. The doctrine was thus intended to address temporal rather than spatial spillovers.120 The common example of such an intertemporal spillover is between the holder of a fee simple and the holder of a lease or a life estate. The latter is currently in possession of the asset, while the former holds the remainder, which is the right that will remain after the current possessor’s right expires.121 In such circumstances, the present holder has an incentive to favor shorter-term investments and overuse the asset without considering the interests of the next owner.122 In extreme cases, there is concern that the holder-in-possession will completely waste the resource, leaving nothing for the remainder. Therefore, the doctrine of waste allows a plaintiff, typically the remainder holder, to bring a claim against a current right holder who damaged or destroyed real property through wasteful use.
A waste action is a preventative action brought in court by a holder of a future right who is not currently in possession of the asset. The purpose of the action is to prevent a current holder, who is in possession, from acts that may result in harm, deterioration, or material change to a property through misuse, use, or neglect.123 As William Blackstone put it, “[w]hatever does a lasting damage to the freehold or inheritance is waste.”124
Several early common law cases of waste dealt with agricultural activities, particularly with cutting down trees. Timber was an important economic resource, and there was a strong interest in protecting it. In these cases, the holder-in-possession, with short-term interests in mind, generally sought to begin or intensify timber harvesting, while the holder of a future interest objected. Early cases on both sides of the Atlantic generally held that cutting down trees for repairs or firewood was permissible but commencing commercial timber operations was not.125 Later American cases, however, have tended to allow commercial timber activities.126
Early common law cases were also concerned with changing the purpose for which the land was used, whether by changing the purpose of the land from forest to field or from field to residential, or vice versa, adding new buildings or opening new mines.127
Over time, American law developed two versions of the doctrine of waste, or two distinct tests for its application. These two dominant views of the law of waste can be illustrated with two leading cases from the late 1800s and early 1900s.
The first case, Brokaw v. Fairchild,128 concerned a mansion in Manhattan, on the corner of 79th Street and 5th Avenue. The mansion was bequeathed by Isaac Brokaw to his son, George, on a life estate, with the remainder going to George’s children, or if he had none, to the other grandchildren of Isaac.129 George wanted to tear down the mansion.130 Some of his nieces and nephews, who were Isaac’s grandchildren and thus potential holders of the remainder, objected and brought a claim in waste to stop George from demolishing the house.131 The New York County Supreme Court found in favor of the nieces and nephews, letting the mansion stand.132 The court held that the right holder currently in possession “shall enjoy his estate in such a reasonable manner that the land shall pass to the reversioner or remainderman as nearly as practicable unimpaired in its nature, character, and improvements.”133 The court generally favored what we term the as-is approach to waste, under which the interim holder must keep the asset as is.134
A different approach to the doctrine of waste is found in a second case, Melms v. Pabst Brewing Co.,135 which concerned a mansion in Wisconsin.136 The current possessor, Pabst, who owned the surrounding property and believed he owned the mansion as well, tore the mansion down. The children of the late C.T. Melms, who were the rightful heirs of the mansion, filed a suit claiming that by doing so, Pabst had committed waste.137 This time, the court rejected the claim of waste,138 explaining that the mansion’s destruction made economic sense, considering the change in the nature of the neighborhood surrounding it, which turned from residential to industrial.139 The reasoning of the court is of particular interest. The court did not evaluate waste based on the as-is approach, but rather used a comparison of economic values, taking into account changed circumstances.140 The Wisconsin Supreme Court held that “reasonable modifications [may be necessary as] demanded by the growth of civilization and varying conditions.”141 The court in Melms thus generally favored what we term a flexible approach to waste, stressing the fact that the neighborhood had changed as the key factor in the ruling. Given the change in the neighborhood, the court was convinced that the land was worth more, at that time, as an industrial plot than as a residential mansion.142 When there has been “a complete and permanent change of surrounding conditions, which has deprived the property of its value and usefulness as previously used,” the holder-in-possession cannot be deemed to have wasted it by changing it in a way that increases its value.143
The flexible approach in Melms also aligns well with a strand of American cases from the early 1800s onward that generally allowed for converting wilderness areas into agricultural landscapes.144 For example, in an 1800s case from Vermont, the court found that cutting down trees was not waste, unless it reduced the value of the land.145 Courts generally assumed that a rational and self-interested fee holder would not resist the transformation of wilderness into agricultural or industrial land because the land would become more valuable after clearing the timber.146 This approach was at least partly due to the homesteading ethos and the desire to farm and cultivate the American continent. The transition from wilderness to agriculture or industry was seen as part of the American transformation.147
Thus, the doctrine of waste limits the right to use and consume real property and induces users to consider the future interests of others.148 But the doctrine of waste considers only the interests of stakeholders that are close in time, not the interests of future generations. A claim of waste against a life tenant or a lessee can be brought to court only by an owner or by an owner of a vested future interest.149 The doctrine of waste requires current holders to consider the interests of identifiable, immediate future holders,150 not the interests of owners in the distant future.
Many American states still have statutes providing for waste action, including both injunctive relief and damages,151 but waste lawsuits are rarely brought anymore.152 Today, most of the issues that were previously addressed by the doctrine of waste are usually solved by other forms of governance. One example is trusts, used as a mechanism for holding assets for more than one generation, usually within the same family.153 Other common examples include landlord-tenant regulations and zoning laws.154 We discuss these below.
B. Governance and Restrictions on Use
The ability of owners to overuse resources at a given time can be regulated through governance mechanisms, beyond the traditional core of property law.155 Consider zoning law, for example. The term “zoning” comes from the practice of categorizing land areas by their use, thus dividing them into zones.156 Zones are created based on the type of activity that takes place in each zone, and uses are assigned to each zone based on the category of use. Certain restrictions are then imposed based on these categories.157 New York City has been used as a traditional example because it represents one of the first successful zoning projects in the United States.158 Zoning laws allow local governments to ensure that the use of land within a zone does not have negative effects on other zones in the municipality.159 Planning law also regulates land use, although it does not adhere to such crisp Euclidean boundaries as zoning laws tend to do.160 Under both zoning and planning law (which we use interchangeably below), a municipality can restrict, for example, the extent to which property holders can build, and specify where development can take place.161
The benefits of planning law include its ability to address potential spillover effects ex ante.162 Unlike easements, which we discuss below,163 zoning imposes mandatory requirements on landowners, and thus cannot be easily sidestepped. At the same time, scholars have criticized the rigidity of zoning because it encourages urban sprawl, negatively affecting the environment.164 Zoning has also been criticized for its unequal distributional effect and its contribution to rising housing prices.165
Although the main purpose of zoning is to avoid spillover effects between neighborhoods and areas within the municipality, zoning does not have to be strictly limited to spatial spillovers. Theoretically, it can also address temporal spillovers.166 Doing so, however, especially for the long term, does not seem to be its primary concern. To illustrate this point, we surveyed the ten largest municipalities in California.167 For each municipality, we examined the general city plan and the zoning ordinances in its municipal code.168 When we examined the stated purposes of the zoning ordinances, we found references only to the welfare of current stakeholders. Examination of the General Plan of the cities revealed the same picture. There were some references, albeit sparse, to future generations or populations, but the protection of future stakeholders was rarely the focus. For instance, the Los Angeles zoning ordinance makes no reference to future generations as part of the functions of the ordinance.169 The San Francisco zoning ordinance also does not mention future generations in its list of purposes at all.170
An outlier in this regard is Long Beach, which mentions future generations twice in its General Plan and emphasizes natural resource conservation and sustainable use.171 Zoning in Long Beach is intended to serve the purpose of the General Plan, and thus should include at least some consideration of the interests of future generations.172 The extent of that consideration, however, appears to be limited. There is no reference to the interests of future generations in the list of purposes for the Long Beach Zoning Ordinance in Title 21. Only a limited number of considerations are listed explicitly, none of which are directly related to the welfare of future generations. For example, one goal is to “achieve excellence of design in all future developments and to preserve the natural beauty of the City’s environmental setting,”173 but this appears to be purely aesthetic. All references in the list of goals to the people themselves are to current residents only.174 This suggests that the primary concern of zoning under this ordinance has to do with spatial spillovers, rather than intertemporal ones.175
In addition to zoning, several other environmental regulations may compel property holders to take the interests of future generations into account. For example, under certain circumstances, the Endangered Species Act176 could regulate the actions of current right holders that affect fish, wildlife, and plant life.177 The Secretary of the Interior may list certain species of animals as endangered or threatened,178 and habitats will be designated for those species accordingly.179 This is significant for our purpose because once a critical habitat has been designated, restrictions apply to it, affecting how landowners can use their property. For example, if the development of land would harm, wound, capture, collect, or interfere with the behavior of the species in that critical habitat, the development would be restricted.180 In Weyerhaeuser Co. v. United States Fish and Wildlife Service,181 private land owned by the petitioner was subject to the critical-habitat designation. Consequently, the petitioner’s ability to use or develop the land as it wished was restricted.182
Other examples of mechanisms relating to future interest holders may include, for example, a mechanism within the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), which allows the President and the Environmental Protection Agency to identify sites releasing hazardous levels of waste, known as Superfund sites.183 Owners of Superfund sites are either encouraged to control their hazardous waste, or an agency-led cleanup is initiated, financed by a dedicated fund.184 Similarly, the Leaking Underground Storage Tank Trust Fund, financed by taxes on the sale of motor fuel, uses its funds to oversee petroleum cleanups, enforce cleanups, or conduct inspections and implement preventative measures.185
Returning to the temporal tragedy of the commons: these governance mechanisms could be helpful, but in practice do not fully address the temporal mismatch and tend to focus mostly on the near future. This tendency can be explained by three related reasons. First, existing governance mechanisms often focus primarily on future neighbors rather than future successors in title. Consideration of future legal successors is, ostensibly, done “within” the fee simple forevership and is therefore often not addressed through governance mechanisms such as zoning and planning law. Second, zoning and environmental regulations are enacted by public officials, who are, or can be, subject to capture.186 The intuition here is quite simple: Public officials respond to interests and problems that concern and affect their constituents.187 Voters, in turn, are individuals who exist in the here and now. Simply put, since our great-great-grandchildren cannot (yet) vote, it is unlikely that public officials will consider their interests when making rules and regulations.188 Third, even if public policymakers wanted to consider future generations, they may encounter the same problems described above, of biases toward the present and misjudgment of the future.189 Policymakers are not necessarily immune to cognitive biases that cause individual decision makers to favor short-term gains.190
C. Voluntary Obligations
The ability of property holders to use their rights can be limited through voluntary obligations. Such restrictions bind current right holders to obligations assumed by their predecessors or their past selves. These restrictions can include, for example, conservation easements that may bind current right holders for the benefit of future holders and future third parties.191 Conservation easements are nonpossessory property rights that restrict a landowner’s use of a parcel of land to achieve a conservation benefit.192 For example, a conservation easement may be agreed upon between the owner of a wetland and the easement holder, in which the parties can define the exact boundaries of the wetland, or be established to protect a particular habitat or species.193
Twenty-one states have adopted a form of the Uniform Conservation Easement Act, which specifies the acceptable purposes of a conservation easement.194 But because conservation easements are voluntary, the scope of what is restricted (or permitted) under a particular conservation easement varies and depends on what was agreed between the parties at the time the easement was established.195 Modifying an easement once it has been established is generally not an easy or quick process.196
In the United States, a total of approximately forty million acres of land are reportedly under conservation easements.197 Conservation easements are a tool of choice for land trusts, which are government or private nonprofit actors “committed to biological [, historical], or aesthetic preservation.”198 Many conservation easements are donated as charitable gifts, in whole or in part, providing landowners considerable tax benefits.199
It is important to note for our purposes that conservation easements can and often are established as perpetual easements.200 They typically “run with the land,” in other words, the terms of the easement remain in effect even if the encumbered land is sold or divided.201 Thus, if the original parties establish the conservation easements as perpetual, they may prohibit or restrict certain activities on the land indefinitely.202
Although voluntary obligations serve important functions, they cannot obligate present owners to consider the interests of future generations. Because they are voluntary, such limitations cannot force owners to forgo their present interests in order to protect the welfare of future generations.
IV. Reforming the Future of Property
In this Part, we explore the possibility of reforming existing limitations on property rights so that these legal instruments better represent the interests of future generations. This move is intended to mitigate the mismatch described above between everlasting property rights and the relatively short-termed duties that accompany these rights. It also provides a path forward for both scholars and policymakers to consider the interests of future generations and the urgent need to address the current climate crisis.
We do not propose to undermine property law or redesign the entire property system. Our goal is simply to consider ways to give future generations a greater say in our current system, and to do so in a way that better serves the goals of property itself. Similarly, our intention here is not to present a definitive outline of doctrinal reforms, an endeavor that is likely to require further development of the law on a case-by-case basis. Rather, our purpose is to provide the doctrinal framework that will allow discussions to move forward, and more generally, to outline the main challenges that such reform would need to consider, challenges that arise from the need to extend the influence of existing doctrines further into the future.
A. Extending the Temporal Bounds of Property Law
By recalibrating legal mechanisms such as the doctrine of waste, the doctrine of public trust, and the concept of abuse of rights, we propose a new version of property law that can solve the temporal tragedy of the commons. Below, we examine three proposals for doctrinal reform to stimulate further discussion of potential solutions along similar lines. The first proposal is to rethink the doctrine of waste by expanding its temporal reach. The second is to expand the doctrine of abuse of rights, again over longer periods of time. The third is to apply a fiduciary model, somewhat similar to the public trust doctrine, again incorporating obligations over a longer time horizon.
1. Recalibrating the Doctrine of Waste
As noted above, the doctrine of waste, which is rarely invoked today, calls on users to consider the interests of future stakeholders.203 In its current form, however, the doctrine of waste considers only the interests of future right holders who are relatively close in time to current owners, and therefore does not effectively represent the interests of future generations. We therefore propose a new version of the doctrine of waste that better protects the interests of future generations. The reformed version recognizes long-term effects on property, not only immediate harms relevant to holders of remainders and similar property interests.204 The crux of the idea is that future generations, or realistically, someone on their behalf, can bring a claim in waste to prevent overuse and overconsumption by property owners.
We suggest that this new version of the waste doctrine should be based on the flexible approach to the law of waste, rather than on the as-is approach, because it better serves the goal of protecting the interests of future generations, while placing fewer restrictions on the rights of current holders. Recall that the flexible approach to waste, as expressed in the Melms v. Pabst Brewing Co. ruling,205 allows for modification of assets by current users as long as it is reasonable and required to improve the value of the asset.206 Reasonableness is assessed according to “varying conditions” and “change[s] of surrounding conditions.”207 The reasonableness of any substantial overhaul of the asset must also be sensitive to economic considerations and the value of the asset over time.208 This flexible test means that current right holders will not be encumbered by a claim of waste, even if they make massive changes to the asset, as long as those changes take into account the interests of future generations and are necessary to protect the value of the asset. The flexible approach is therefore more sensitive to the needs of current right holders by allowing them to make changes to their assets.
The flexible approach to waste law is also preferred because it can incorporate changing economic, environmental, and social conditions into the calculus. This approach allows for the degree of flexibility needed to protect the interests of generations well into the future when conditions might be vastly different than they are today. The flexible waste doctrine is, therefore, preferable to the stricter as-is version of waste law, which requires that assets remain largely unchanged by current owners.
The doctrine of waste is highly relevant to our discussion because it was originally created to mitigate intertemporal conflicts between interest holders, as opposed to spatial conflicts of interest between contemporary neighbors. The temporal aspect, therefore, plays a fundamental role in this doctrine. The flexible approach presented in the Melms ruling interpreted the time aspect as a call to expand the considerations relevant to the application of the doctrine of waste, which, as the court explained, requires a degree of flexibility for the interests of both the present and future right holders—interests that may arise and change over time. The basic structure of waste doctrine, together with the understanding that property interests are dynamic and change over time, can provide a framework for resolving the conflict between the rights of current owners and future third parties, whose rights in the property may be severely affected by the decisions of the current owners.
We, therefore, propose to use this basic structure of the law of waste but extend it so that the doctrine can consider the interests of right holders further into the future, not only those of the immediate subsequent owners.209
2. Expanding the Temporal Boundaries of the Public Trust Doctrine
In the landmark case of Juliana v. United States, the Federal District Court of Oregon refused to dismiss a lawsuit brought by young plaintiffs who alleged that the federal government’s fossil fuel policies, which resulted in high levels of greenhouse gas emissions, violated their constitutional rights to due process and equal protection. The district court denied the government’s motion to dismiss the suit and allowed the plaintiffs to proceed and go to trial.210 Although the case was eventually dismissed by a panel in the Ninth Circuit and a petition to appeal was denied,211 the decision of the district court leaves an important footprint on the landscape of environmental and climate case law.212 For our purposes, it is particularly significant that in its decision, the district court invoked the doctrine of public trust.213 As illustrated in Juliana, this doctrine, a modernized version of rules dating back to Roman law and the Magna Carta,214 is used to designate government actors as trustees of essential resources.215 The doctrine views the state as having a fiduciary duty to protect such resources for the benefit of its people.216 The type of resource stewardship envisioned today under the public trust doctrine is thought to include sustainable management, ideally with a view to maintaining the resources over time.217 It has been suggested that to apply this doctrine appropriately, courts can ensure that a decision allowing trust interests to be impaired must show a consideration of legislative judgment218 or show that it is based on a less disruptive solution.219 As the Juliana case shows, although some courts have found that the trust responsibility constitutionally requires the legislature to act for a public purpose, others have been less willing to accept this notion of responsibility in public trust claims.220
The doctrine leaves open the possibility of considering future people and generations. We propose to expand the temporal limits of the doctrine to consider the interests of future people and owners, further into the future. Our suggestion is consistent with the main rationale underlying the doctrine, which is the idea that resources should be held on behalf and for the benefit of others and managed accordingly.221 In this sense, our proposal does not require a profound conceptual change of the doctrine, but rather a shift in its emphasis and in the way it is applied.
Building on the ethos of trust, the idea of holding resources in trust for future generations could be applied to private owners as well,222 and current interest holders could be viewed as having fiduciary obligations toward future generations. Although these future beneficiaries do not yet exist, and are therefore, by definition, a matter of probability, the result of these obligations could be that owners must take into account their future beneficiaries.
3. Extending the Doctrine of Abuse of Rights
An adjusted version of the abuse of rights doctrine may serve as another way to represent the interests of future generations. The intuition behind the abuse of rights doctrine is that right holders should not be allowed to use their rights in a way that is malicious, spiteful, or yields unlawful leverage.223 The doctrine is applied in a variety of contexts and situations and is used, for example, to combat frivolous lawsuits and prevent owners from erecting spite fences.224
Much of the literature and case law on the doctrine is devoted to offering different views on the scope and conditions for asserting the abuse of rights doctrine and its justifications.225 This is because there is some conceptual difficulty in treating right holders using their legal entitlement as wrongdoers. Even if the use of a right is harmful to others, it does not necessarily mean that the right is being abused; it is in the nature of rights that they favor right holders over non-holders, thereby “harming” non-holders who are excluded from certain resources or entitlements. Courts and scholars thus explain that the abuse of rights doctrine is usually applied when right holders attempt to use their rights out of spite,226 for the sole purpose of harming others rather than to maximize the right holder’s gains.227 Similarly, the doctrine may be used when the court believes that the right holder is using the right in a way designed to unfairly extort benefits from others.228
The basic logic of the doctrine can be applied to the interests of future generations. In situations where current owners deliberately and maliciously take actions that harm future holders, an abuse of rights could be found, especially if minimal effort is required on the part of the current holder to avoid that harm. In this way, the doctrine would be expanded in time to include claims not only by current stakeholders, but by future ones as well.
The advantage of this proposal is that it imposes a fairly modest limitation on the power of current owners, and accordingly a relatively light burden on them. We envision it could address primarily those cases that require minimal effort on the part of the current owner but would result in significant harm for future generations if that effort is not made. If a current owner can easily avoid an action that would result in significant harm in the future, all things considered, that action should be avoided.229
B. Implementing the Proposed Reforms
The doctrinal tools described above all require the creation of appropriate procedural foundations to support their operation. Therefore, we explore the possibility of using the doctrines of waste, public trust, and abuse of rights to induce current right holders to consider the interests of future generations. For these doctrines to work under this new modality, we must first identify the appropriate institutional actors who will be allowed to bring such claims to court and represent the interests of future generations. For example, under our proposed version of the doctrine, if current owners are using their asset in a way that will lead to its destruction five hundred years hence, this could be considered wasteful. To make this theoretical violation of the right of future generations actionable in court, we must grant some contemporary actor the power to bring a claim in the matter before the court. The same is true for the doctrines of public trust, abuse of rights, and any other doctrinal mechanism that seeks to allow court claims designed to protect the interests of future generations.
One way to address this issue is to recognize a special procedural mechanism by which plaintiffs can assert private law claims on behalf of future generations. For example, a trustee or guardian could be appointed either by the court or by some public process. This proposal is reminiscent of similar ones in the area of animal rights, and of the growing debate over the rights of nature, where guardianship and trustee-like mechanisms are used to assert claims on behalf of those who otherwise cannot speak for themselves.230
Alternatively, such a mechanism could operate through the established devices of representative legal claims, similar to a class action.231 Under such a scheme, any claimant may file a claim with the court in the name of future shareholders if the court considers the claimant to be an appropriate representative of future interests.232 Such consideration may take into account, for example, the claimant’s knowledge on the subject matter of the particular action, the claimant’s ability to present persuasive and relevant evidence regarding harms accruing in the distant future,233 and the claimant’s lack of a current interest in the assets at issue.
Such a procedural mechanism creates an incentive system that ensures that lawsuits are filed whenever the rights of future generations are violated by current owners, and whenever there is sufficient information in the present to bring such a lawsuit. If present claimants are allowed to sue on behalf of future generations, they will have an incentive to collect information about potential harms to future generations and bring relevant claims in court to collect compensation. The possibility of such suits will, in turn, induce owners to refrain from overconsumption and overuse and induce them to consider the interests of future generations in their decisions.
When such suits succeed in court, injunctive relief will often be the most appropriate remedial tool to protect the interests of future generations. For example, following a waste claim, a court may use an injunction to order current owners to avoid storing chemicals in the ground. When injunctive relief is granted, some monetary award should also be given to the plaintiff to provide an incentive to bring claims to court. When damages are a more appropriate remedy, as opposed to injunctive relief, part of the monetary award should similarly go to the plaintiff as an incentive mechanism, while the lion’s share should be awarded to charitable organizations devoted to sustainable development or to similar goals relevant to the issue of the suit.234
Lastly, allowing these kinds of temporal claims (in waste, trust, or abuse of rights) to go forward would effectively shift the discussion to the courts. It could be argued, indeed, that judges might struggle to distinguish between uses that are “wasteful” for future generations and those that are not, and that calculating future harms could be challenging.235 Despite these challenges, we suggest that opening up a forum to discuss the harms to future generations through adjudication would be significant in itself. It would allow thoughtful deliberation to go forward, which would be instrumental in bringing evidence regarding future harms to the fore. It would also have the benefit of calling on owners to consider the harms at stake in a concrete way, and in doing so, would begin the process of debiasing with regards to future generations.236
C. The Advantages of Property Law
Above, we suggested possible changes to several property law doctrines that would encourage current owners to consider the interests of future generations. We do not claim that this goal should be achieved through property law alone. There is no reason that public law and government regulation should not be used for the same purpose, in addition to property law. We propose merely to use property law as yet another arena and mode of operation. There are several important reasons why we believe it is vital to use property law to align the interests of current owners with those of future generations, and not to leave this role solely to state regulatory action, such as zoning or environmental regulation. In other words, despite its structural limitations and current inability to protect the interests of future generations, property law has several important comparative institutional advantages that make it a potentially useful tool for this purpose.
A first comparative institutional advantage relates to regulatory capture.237 Regulatory attempts could be made to induce current owners to consider the interests of future generations. Such efforts, even if partially successful, are vulnerable to regulatory capture.238 Regulators do not operate in a vacuum or represent the interest of society as an abstract concept.239 Rather, they are under political and electoral pressures, and represent a complex compromise between interest groups.240 By definition, future generations are not a powerful interest group and therefore will never be fully protected by central regulators. By contrast, property law doctrines, as described above, do not operate through a central regulatory authority, and are therefore less susceptible to regulatory capture.241 For example, in our proposed version of the waste law, a claim can be brought by any private citizen able to prove it without depending on regulatory initiative. In this sense, property law can function from the ground up as a decentralized system of legal actions brought by individual claimants, offering an important addition to standard regulatory tools.
Property also enjoys significant informational advantages. Centralized regulatory agencies operate based on top-down mechanisms, concentrating control and decision-making in the hands of certain legal actors. By contrast, as a private law doctrine, property law tends to be more bottom-up, exercised by private individuals. This structure allows for distributed action and the generation of information from the ground up.242 If individual users and holders know of a cause of action as described above, they can bring it to court. Such individuals are often better informed about the details of the properties in question243 than central regulators can ever hope to be.244 Property law is designed to allow the authorities to use private owners as managers and regulators to ensure efficient use of property. It would be beneficial to use these mechanisms also to represent, when possible, the interests of future generations. If this important task is left entirely to centralized regulatory systems, the benefits of distributed action available under property law doctrines are lost.
Finally, property serves as an important platform for other types of regulatory mechanisms.245 Because many of the governance functions of a sovereign state are territorially defined, and property rights, particularly to land, are defined with reference to a particular location within that territory, these rights help the state organize and facilitate its governance.246 Consider, for example, the levying of taxes based on ownership or use of land, the obligation to remove snow on a particular stretch of sidewalk outside one’s house, the obligation to repair the sidewalk, and so on.247 The role that property plays in this regard and the benefits of a property system lie not only in its ability to facilitate the use of resources but also to serve as a springboard for other types of governance structures. But if property is not performing its function, in this case because of a temporal misalignment, it might also not do the job we need it to do as a useful regulatory platform. Therefore, correcting the temporal misalignment not only makes property function better, but also makes it better able to serve as a regulatory platform when we need it to do so.
Conclusion
In its current form, property law fails on its own terms. The promise of property is to induce current right holders to look far into the future and serve as loyal guardians, conserving existing resources for the benefit of all generations to come. This promise is an empty one, as the current state of our resources and the looming climate crisis clearly demonstrate.
We challenge property law to keep its promise. We propose to change the basic structure of property law, creating duties toward future generations to match the everlasting rights of property holders. Although this is a profound change in the form of property law, it is not foreign to it. The change we propose is consistent with the internal logic and stated aims of property law and is based on the tenets of age-old property law doctrine and theory. We believe that our proposal offers the starting point for a new wave of property law scholarship that will further develop the doctrinal tools and distinction necessary to allow this area of law to fulfill its promise and provide future generations the protections they deserve.