Entitlement-Shifting Rules

Abstract

This Article describes and analyzes entitlement-shifting rules: laws that initially assign a legal “entitlement” to one party and subsequently reassign the same entitlement to a different party. Guido Calabresi and Douglas Melamed’s classic framework of property rules and liability rules involves two basic steps that yield four possible combinations of entitlement assignments and protective rules. These combinations are conventionally numbered in a particular order as rules one through four. Over the years, numerous scholars have built upon Calabresi and Melamed’s four-rule structure with add-on rules that tweak the model’s second step of assigning property or liability rule protection. By contrast, academicians have devoted far less attention to what this Article calls “entitlement-shifting rules”—rules that involve variations on the model’s first step of assigning the entitlement. Although government actors routinely shift entitlements in legitimate and useful ways, some types of entitlement shifting—especially certain laws and actions that shift core property entitlements—are difficult to defend on efficiency or equity grounds. This Article sets forth principles for identifying and analyzing entitlement-shifting rules, applies those principles to examine a diverse set of real-world examples ranging from civil asset forfeiture laws to proposed drone regulations, and describes some basic strategies for deterring the most costly and unjust forms of entitlement shifting. By drawing attention to entitlement-shifting rules and their impacts, this Article paints Calabresi and Melamed’s model in a revealing new light and provides additional perspective on some of the core deficiencies of modern takings laws.