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91 Tul. L. Rev. 217 (2016-2017)

handle is hein.journals/tulr91 and id is 243 raw text is: TULANE LAW REVIEW VOL. 91 DECEMBER 2016 No. 2 Hybrid Rule: Hidden Entitlement Protection Rule in Access to Landlocked Land Doctrine Yun-chien Chang* Access to landlocked real property is a universal legal entanglement, but surpisingly no law and economics scholar has systematically analyzed this issue. The doctrines in the United States, called easements ofnecessity and statutory easements, are similar to those i ci law jurisdictions. They have intuitive appeal: for statutory easements, owneis of servient land should be compensated; easements should be necessary; and the location of the passage should cause the least damage to the servient land As for easements ofnecessity the landlocked owners can only gain access to land held by the grantor at the time of the conveyance, and the easements are gratuitous. Using economic analysis, this Article argues that these doctrines can be understood as an application of what I call the hybrid rule, an unheralded mixture of the property rule and liabityrule. This hybdd rule is more efficient than the two prototypical entilement protection rules because it strikes a balance between facilitating voluntary transactions through reducing tiansaction costs reducing cost externahzation, and preservig property value Moir * 0 2016 Yun-chien Chang. Associate Research Professor and Director of Center for Empirical Legal Studies, Institutum lurisprudentiae, Academia Sinica, Taiwan. kleiber@sinica.edu.tw. I thank the anonymous referees for the EALE Conference, Avi Bell, Omri Ben-Shahar, Roger Van den Bergh, Wen-tsong Chiou, Jim Ely, Jr., Lee Anne Fennell, Octavio Ferraz, Jeong-Yoo Kim, Hui-Wen Koo, Amnon Lehavi, Daphna Lewinsohn-Zamir, Kelly Barton Olds, Mitch Polinsky, Eric Posner, Shitong Qiao, Hans-Bernd Schifer, Karen Bradshaw Schulz, Lior Strahilevitz, Wolfgang Weigel, Tsong-Min Wu, and participants of the 29th Annual Conference of the European Association of Law and Economics at Stockholm University, the Law and Economic Workshop at Bar-Ilan University Faculty of Law, Economic History Workshop at National Taiwan University Department of Economics, the 2013 Asian Law and Economics Association Annual Meeting at Keio University in Japan, and the 2012 Law and Society Meeting for helpful comments and suggestions. Funding by Ministry of Science and Technology of Taiwan (Grant No. 100-2410-H-001-005) and Kreisman Initiative on Housing Law and Policy at the University of Chicago Law School is deeply appreciated. Jung Chen, Yi-sin Chen, Po-jen Huang, Charline Jao, Alice Kuo, Han- Shin Lin, Hilary Tsai, Jiji Ubaid, and Christine Yuan provided helpful research assistance. 217

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