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Abstract

There is a material deficit at the core of an important strain of American property law scholarship—the debate over the nature and extent of a landowner’s right to exclude non-owners from land. By referring to a “material deficit” I do not mean to suggest that there is a lack of theoretical sophistication regarding this subject. For more than a decade two rival camps of property theorists have made powerful, often intricate, and seemingly irreconcilable claims about the function and normative value of exclusion rules in property law. What I mean is that when these two groups of property theorists engage each other they tend to illustrate their arguments with discussion of the same, relatively small set of classic American cases that form the canon of most property law case books.

American law students know these cases well by the end of their first year of law school. They have evaluated trespass claims in the agricultural plains of New Jersey and in a snowy field in Wisconsin. They have considered demands for public access to the beaches of New Jersey and an abandoned railroad track in Vermont. And, of course, they have pondered the confusing regulatory takings jurisprudence of the United States Supreme Court.

The tendency of property theorists to dwell on these same cases has two principal drawbacks. First of all, it obviously produces a certain amount of redundancy, maybe even a sense of exhaustion among property law scholars and students. Second, and more important, the failure of property law scholars to discover new property rule making and decision making in action can freeze the imaginative capability of theoretical scholarship. This Article is designed to respond to both of these deficiencies.

It responds to the first by leading readers abroad, to post-devolution Scotland, where a small band of recreational access advocates, enlightened landowners, law reformers, legislators, and jurists have done something remarkable. In Part I of the Land Reform (Scotland) Act 2003 (the LRSA), just the latest in a series of sweeping property law reform initiatives in Scotland, the Scots have created a new kind of property interest and a detailed property regime to contextualize this interest. At the heart of this regime is the right of responsible access. It is a right to go almost anywhere in Scotland, on most land and inland water, whether privately owned or public, without a motorized vehicle, for purposes of recreation, education, and passage, as long as one acts responsibly.

By introducing the LRSA and its right of responsible access to an American property law audience this Article should help alleviate the palpable shortage of new subjects in property law analysis. In other words, this Article provides an invaluable case study of a bold property lawmaking scheme.

But this Article also has a normative component that responds to the imaginative paralysis that can result from the deficit of new subject matter in property scholarship. I argue that the LRSA shows us something important about what is possible in property law design. I contend that Part I of the LRSA demonstrates—at least in this area of property—that a property regime can embrace a social obligation norm and a series of virtue-oriented standards of behavior without sacrificing all of the information processing efficiencies and coordination benefits that information theorists contend flow from a property law architecture founded on a core commitment to a robust, ex ante presumption in favor of the right to exclude.

This is not to say that this model of property law design has no costs. I acknowledge that adoption of Part I of the LRSA has required Scottish courts to develop several highly contextualized decision making methodologies to interpret key portions of the Act designed to allow land owners to exempt some land from access taking and to preserve certain barriers to access. Recent judicial decisions interpreting the Act thus admittedly expose some of the information processing and uncertainty costs that are by-products of this kind of complex “governance” based property law innovation. Yet the tests and methodologies developed by the Scottish courts so far are, though not perfect, generally reasonable and have largely succeeded in avoiding demoralizing results.

Most importantly, though, I contend that because the LRSA actually replaces the traditionally robust, modular, ex ante presumption in favor of the right to exclude with a surprisingly simple, but also robust, ex ante presumption in favor of responsible access, information processing costs and coordination costs are not necessarily as high or as destructive as some critics might have expected. In the end I claim that the LRSA’s reordering of private property rights in Scotland reveals how a long cherished vision of shared social interests in land can emerge as working legislation that promotes important aspects of human flourishing while at the same time preserving land owners’ privacy interests and their prerogative to make crucial decisions about how their land can be used productively, how that land fits into their own life projects, and even how their land’s long term value can be preserved for future access takers.

To help readers appreciate the significance of Scotland’s achievement in property law institutional design, this Article initially reviews the theoretical debate over the fundamental structure and values of property law in general and over the centrality of the right to exclude in particular. Section II.A explains the assumptions and goals of the “progressive theorists,” those scholars who call for American property law to embrace a social obligation norm aiming to maximize human flourishing at all times and who welcome a more contextualized property law decision making process focused on producing relationships of dignity, fairness, and respect. Section II.B discusses the assumptions and aims of the leading “information” or “formal exclusion” theorists, the scholars who insist upon the normative superiority, doctrinal centrality, and above all, the informational efficiency of robust rules of exclusion at the core of property law. Section II.C briefly introduces several other property theorists whose views on the right to exclude in particular do not fit neatly in either of these camps but whose insights are helpful in understanding the new property regime in Scotland.

To provide further context for understanding the emergence of the right of responsible access, Part III briefly examines how Scottish common law dealt unsuccessfully with the problem of demands for access to private land prior to the LRSA. Part IV discusses and contrasts the consensus building efforts and historical experiences that led to the LRSA in Scotland with the different set of experiences that led to passage of the Countryside and Rights of Way Act 2000 (CRoW Act), the legislation that established the better known but less radical “right to roam” in England and Wales. Part V then provides a comparative analysis of the major features of the CRoW Act and the LRSA and reveals how Scotland’s version of access legislation has not only a wider geographic reach but has created a far more ambitious and potentially transformative kind of access regime than is found in England and Wales. Part VI analyzes recent judicial decisions in which Scottish courts have begun to interpret key provisions of the LRSA designed to balance the privacy and personal enjoyment interests of home dwellers and the land management interests of other property owners with the interests of Scotland’s statutorily protected access takers. Part VII concludes.

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