The right to abandon. - Free Online Library (2024)

The common law prohibits the abandonment of real property. Perhapsit is surprising, therefore, that the following are true: (1) the commonlaw generally permits the abandonment of chattel property, (2) thecommon law promotes the transfer of real property via adversepossession, and (3) the civil law is widely believed to permit theabandonment of real property. Because the literature on abandonment isdisappointingly sparse, these three peculiarities have escaped sustainedscholarly analysis and criticism. This Article aims to provide acomprehensive analysis of the law of abandonment. After engaging in suchan analysis, this Article finds that the common law's flatprohibition on the abandonment of corporeal interests in real propertyis misguided. Legal rules prohibiting abandonment ought to be replacedwith a more permissive regime in which both the value of the underlyingresource and the steps that the abandoning owner takes to ensure thatwould-be claimants are alerted to the resource's availability arewhat matters. Furthermore, the law of abandonment ought to be harmonizedfor real property and chattels. Finally, this Article criticizes thelaw's preference for adverse possession over abandonment as a meansof transferring title in cases in which these mechanisms might functionas substitutes.

In the course of analyzing the law of abandonment and offering aqualified defense of the practice, this Article provides the firstworkable definition of resource abandonment, suggests that theabandonment of positive-value real and intellectual property issurprisingly widespread by providing multiple examples, and analyzes thecosts and benefits associated with abandonment. This Article explores atsome length the factors that will determine whether an owner opts forabandonment or other means for extinguishing his rights to a resource,as well as the considerations that should drive the law'sreceptivity to these efforts. The latter considerations include thedecision, transaction, decay, confusion, sustainability, andlawless-race costs associated with abandonment. In addition, readerswill be exposed to pertinent tidbits concerning the social norms ofgeo-caching, the anthropology of "making it rain," theunfortunate decline of municipal bulky-trash pickup, Mississippi'smisguided livestock laws, and the dubious parenting choices ofJean-Jacques Rousseau.

INTRODUCTION I. UNDERSTANDING ABANDONMENT A. Taxonomy of Abandoned Properties B. Costs of Abandonment C. Abandonment's Comparative Appeal II. THE LAW OF ABANDONMENT A. Permissive Regimes B. Escheat C. Prohibition D. Licensing E. Promoting Abandonment?III. A PROPOSAL FOR RATIONALIZING THE LAW OF ABANDONMENT A. Negative-Market-Value Property B. Positive-Market-Value Property C. Is Land Different?CONCLUSION

INTRODUCTION

On an ordinary Wednesday in August of 2008, there were sixty-oneseparate listings in the "Free Stuff" section ofChicago's Craigslist directory. (1) The belongings made freelyavailable ranged from highly desirable items (an entertainment center ingreat condition, a working "Gilbranson [sic] organ,"televisions, and microwave ovens) to those that might be useful to aniche population (a Hewlett-Packard inkjet cartridge, VHS tapes of themotion pictures Free Willy and Free Willy 2, and wooden doors from acolonial house built in 1938) to the nearly worthless (a brokenrefrigerator, one cubic yard of dirt from a landscaping project, and"Tons of River Rocks"). All were offered by their owners on afirst-come, first-served basis. In most cases, the items were keptinside the owner's home, and a claimant would need to makearrangements with the owner to haul off the property. But the ownerswere not picky--the first claimant with the ability to do so could takethe advertised property home. In a few cases, such as that of the brokenrefrigerator, the item had been left by the owner in an alley or anothereasily accessible place, and the Craigslist advertisem*nt described itslocation. (2)

Craigslist is hardly alone in pairing would-be abandoners withpotential claimants. Another national organization, the FreecycleNetwork, offers a similar service with high levels of participation, andBookCrossing is a global service that facilitates the abandonment andfinding of books. In recent years, communities of "freegans"have sprouted up in urban areas around the world, eating, cleaning, andwearing resources that other people have discarded. (3) As a testamentto the prevalence of abandonment and the value of the resourcesabandoned, it appears that some of these freegans are able to liveessentially pleasant, middle-class lives. (4) As the American economyhas slid into a significant recession, states like Florida and SouthCarolina are dealing with hundreds of abandoned boats that are clogginglocal waterways, left by owners evidently unable to find buyers andunwilling to pay slip fees. (5) Moreover, it is not only personalproperty that is widely abandoned. In rural, sparsely populated areas ofKansas, Nebraska, and North Dakota, local governments have made freeland available to anyone willing to build a house on it and move in. (6)In urban centers, the problem of abandoned dwellings is significant,accounting for 23,000 dwelling units in New York City in 1996 and 1.3%of all urban residential housing units in fifty-eight cities in thenortheastern United States in 1975. (7)

Given the ubiquity of abandoned property and its presumptiveeconomic importance, one would expect there to be a large legalliterature exploring the contours of abandonment law. Such a suppositionturns out to be unduly optimistic. There is very little legal writing onthe abandonment of property. When legal scholars tackle the issue, theytend to focus on specific issues, like abandoned shipwreck cases,abandoned oil and gas interests, or abandoned rail lines. (8) Theleading property casebooks either ignore abandonment entirely or give itbrief attention. (9) For whatever reason, legal scholars have nearlyabandoned the topic and remained oblivious to its charms. (10) ThisArticle fills that gap in the property literature by examining the lawof abandonment in a comprehensive way. Perhaps unsurprisingly, in lightof the dearth of attention that abandonment law has received, thisArticle finds the law of abandonment wanting and suggests doctrinalimprovements.

Part I examines the motivations behind decisions to abandon realand personal property, developing a taxonomy of abandonment along theway and demonstrating that positive-market-value property is abandonedwith some frequency. Part I also highlights some of the social costs ofabandonment, which form a basis for laws restricting the practice. ThePart concludes by comparing abandonment to the primary competing methodsof disposing of property--sales, gifts, and destruction. Much can belearned from this comparison. For example, one danger of rules thatunduly restrict the abandonment of positive-value resources is thatowners will be left with little choice but to destroy those resourcesinstead. Part II describes and analyzes the law of abandoned property,identifying five basic approaches that courts and legislatures havetaken and assessing the rationales and merits of these approaches. PartIII proposes a framework for rationalizing the law of abandonment. Inthe place of a common law regime that prohibits the abandonment of realproperty and regulates abandonment in the context of chattels, thisArticle suggests a unified regime that is pegged to the underlyingmarket value of the resource and the social costs of abandonment. Moreprecisely, the law likely ought to permit the abandonment ofpositive-market-value resources if owners take steps to advertise theavailability of such property. Such advertisem*nt will minimize most ofthe social costs associated with abandonment. With respect tonegative-market-value resources like contaminated land or rottinggarbage, a prohibition on abandonment usually makes sense in both thereal property and chattel property contexts, at least in nations wherethe baseline level of law-abiding behavior is high. In short, thisArticle presents a qualified defense of the right to abandon property.

The Article concludes by contrasting American law'sreceptiveness to adverse possession and its hostility to the abandonmentof real property. Such a regime makes sense in a world wheredifferentiating between positive- and negative-value real estate liesbeyond the institutional competencies of courts. However, as long asjudges can adequately assess the value of real estate based oncomparable sales, the case for permitting adverse possession of realestate while prohibiting the abandonment of real estate collapses. Ifanything, the concerns that explain the common law's resistance tothe abandonment of real property would be better alleviated byprohibiting the adverse possession of real estate by bad-faith adversepossessors than by maintaining the prohibition on abandoning realestate. Put simply, whereas new information technologies mitigate theproblems associated with the decay or waste of an abandoned resourceduring the period in which it remains up for grabs, the doctrine ofadverse possession ensures that a knowing trespasser will not putproperty to its highest-value use during the entirety of the statute oflimitations period.

I. UNDERSTANDING ABANDONMENT

It will be helpful to begin with a definition. In the case ofabandonment, a simple and elegant definition is readily available.Abandonment means any unilateral transfer of ownership. The word"unilateral" is doing much of the heavy lifting here. (11)Other means of transferring property--sales, gifts, bequests, releases,forfeitures, foreclosures, and adverse possession--require that a thirdparty assume ownership of the property or agree to do so. (12) An ownerwho wishes to dispose of property unilaterally has just two options:abandonment or destruction. Logically, then, abandonment can be definedwith reference to what it is not: it is a unilateral, nondestructivemeans of ridding oneself of ownership. The destruction of a resource isnot a transfer, because there is no transferee.

In offering this definition at conferences and workshops, I havereceived some push back from property scholars who reject the idea thatabandonment can be a transfer. They have likened abandonment to thedestruction of a legal estate and the creation of a new one, which iswhat occurs with adverse possession. But this characterization ofabandonment is erroneous. As we shall see, one of the key attributes ofabandonment is that the abandoning owner can "change her mind"and reclaim the abandoned resource so long as she does so before anotherperson claims it. If abandonment were to entail the destruction of anestate (and the elimination of third-party security interests in theresource), then owners of encumbered properties would have an easyavenue for eliminating those encumbrances: abandoning the resource for amoment, then reclaiming it immediately free and clear. This possibilityexplains why we must conceive of abandonment as a transfer, albeit onewith a temporal lag built into it. Where abandonment is permitted, thetransferor relinquishes ownership immediately, the property remains upfor grabs for some period of time, and the transferee eventually claimspossession. The state, by regulating the law of abandonment, essentiallydictates the circ*mstances under which it is willing to let a resourceowner place it up for grabs. Nothing in the law of property requiresthat a transferee take possession from a transferorimmediately--abandonment cases are the exception to the general rule.

Why would someone abandon property? That question lies at the coreof any serious inquiry into this body of law. As discussed below, theremay be a number of reasons why an owner might regard abandonment as anattractive strategy for transferring property. The most significantadvantages of abandonment are that it allows an owner to avoid thetransaction costs associated with a consensual transfer and the decisioncosts associated with determining the identity of the most appropriatetransferee. Other reasons why abandonment might prove attractive includealtruistic or reciprocal motivations, a desire to sell ancillary goods,and efforts to enhance one's reputation or derive entertainmentvalue. (13) The Sections that follow describe some of the more commonforms of property abandonment.

A. Taxonomy of Abandoned Properties

It is widely assumed that property is only abandoned when itbecomes worthless or when the transaction costs of transferring theproperty exceed its market value. For example, Tom Merrill and HenrySmith identify the core condition that leads to abandonment as an assetpossessing negative value. (14) They then ask whether there would everbe a context in which owners abandon property that does not havenegative value. (15) Although they do not respond to this question, ithas an affirmative answer. The case law reflects numerous instances inwhich property with positive-market-value is abandoned, and contemporaryexperience, summarized below, suggests that this behavior remainscommon. By exploring the different types of nonnegative-value propertiesthat are nevertheless abandoned, we will make headway in determiningprecisely what the law of abandonment ought to say.

We can describe property, be it real, chattel, or intellectual,using a four-box matrix. The two relevant variables are (1) value to theexisting owner (subjective value) and (2) market value. (16)

Property that is devoid of both subjective value and market valueis likely to be abandoned unless forbidden by law. In the overwhelmingmajority of forfeiture cases involving New York City real estate, theproperty in question had liens that exceeded the market value of theunderlying property at the time of its seizure by the government to payoff tax liens. (17) It seems plausible that most abandoned real estatehas this characteristic as well. Nobody wants this property in itspresent form, and the cost of paying off tax liens exceeds the marketvalue that the property would have if repaired or bought free and clear.In some contexts, such as the environmental-contamination setting, thelaw must impose the clean-up costs on someone--either the owner of thenegative-value asset, the polluter, the neighbors who are suffering fromthe pollution, or the taxpayers. (18) Speaking more generally, an assetthat has no economic value to anyone should be repaired, recycled,unbundled, or destroyed. (19)

Repairing, recycling, unbundling, and destroying are of course notcostless. Hence the law will limit an individual owner's ability toimpose such costs on the public at large. The ComprehensiveEnvironmental Response, Compensation, and Liability Act (CERCLA) (20)and the Resource Conservation and Recovery Act (RCRA) (21) providestatutory frameworks for imposing environmental remediation costs on theowners of negative-value property. Various laws at the state and locallevel prohibit the nonconsensual dumping of waste on public and privateproperty. (22) Municipalities may provide public trash cans in parks oron city streets, and people wishing to rid themselves of negative-valueassets will try to abandon them there. Nonetheless, it is not irrationalfor the government to assume the costs of destruction or recycling inthese cases. The city might rationally conclude that in the absence ofthese trash receptacles, people will abandon their property in the parksor streets themselves, creating unsightly litter and public healthhazards. Note, however, that cities cap the costs associated with theintake of abandoned property by prohibiting the dumping of householdwaste in public trash cans and by limiting their size. (23) Based oncasual empiricism, it is my impression that public dumpsters are rarelysituated in urban parks or near sidewalks, in part because theirpresence will invite individuals to dispose of large negative-valueassets therein. As a general matter, individuals and firms have toarrange with private entities or public sanitation departments to losepossession of negative-market-value property. Once such a contract isentered into or tax revenue is dedicated to this purpose, it is nolonger appropriate to describe the waste in question as having beenabandoned. Rather, it is consensually transferred by one party toanother for the purposes of disposal.

A second category of property that is regularly abandoned hasnegative subjective value and positive market value. Property that isassociated with an ex-lover is often abandoned by an owner despite itspositive market value. A popular-press how-to book that instructsreaders on making money by purchasing abandoned properties suggests thatdivorce frequently causes the former spouses to abandon the family homeand also that people who inherit properties where a loved one diedsometimes abandon the land so as to avoid dealing with painful memories.(24) More trivially, an adult may decide that the objects associatedwith her youth do not belong in her residence any longer but wouldsurely make some child happy, so she may leave them in a publiclyaccessible place for the first interested passerby.

A third category of property, entailing positive subjective valueand zero or negative market value, is extremely unlikely to beabandoned. In these cases a transfer of the resource in question makessociety worse off. Indeed, in these cases abandonment will almostinvariably result from imperfect information. Either the ownerunderestimates her own attachment to the property or the owneroverestimates its market value and mistakenly believes herself to beabandoning a positive-subjective-value, positive-market-value resource.Examples of this category are somewhat difficult to imagine, but perhapsthey might include "tyrannical heirlooms." Quintessentialtyrannical heirlooms are property that an individual received from arelative that were valued by the donor but detested by the recipient.Nevertheless, the recipient felt duty-bound to keep and maintain theheirloom in question out of affection for the donor. (25) The presenceof such a relationship makes it far more likely that we will see thissort of transfer in the testamentary context than anywhere else, becausethe recipient has no opportunity to express dissatisfaction with thebequest to the decedent. Such transfers will not occur via sales becauseno one will step forward to purchase the items. They will occur viainter vivos gifts only occasionally. The law of gifts requiresacceptance as an element, (26) but the recipient may accept an item shedoes not truly want out of a desire to avoid hurting the donor'sfeelings. (27) It is hard to imagine abandonment as a domain for suchtransfers because (1) people will be reluctant to abandon property theyvalue to total strangers; (2) total strangers who do not want suchproperty will be reluctant to take possession of it; and (3) there islittle reason to think that the finder of such undesirable property willfeel any sense of kinship with the abandoner, such that he willwillingly take possession. On reflection, then, if they occur at all,these sorts of transfers are surely quite rare.

As a perusal of Craigslist will attest, positive-market-valueassets are abandoned with some regularity. These are the mostinteresting abandonment cases, and they will get the fullest treatmenthere. For starters, take baseballs hit into the stands at major leagueballgames. Thanks to Popov v. Hayashi, the Barry Bonds home run ballcontroversy, we now have clear case law holding that a baseball is theproperty of Major League Baseball at the time the pitcher throws it butthat it becomes abandoned property the moment it flies off ahitter's bat and out of play. (28) Some of these baseballs havesignificant monetary value. For example, Mark McGwire's seventiethhome run ball sold for over $3 million, (29) the ball at issue in Popovsold for $450,000, (30) and the foul baseball that Cubs fan SteveBartman deflected into the stands in the 2003 National LeagueChampionship Series fetched more than $113,000 at auction. (31) We mighttherefore wonder why Major League Baseball does not retain title toballs hit into the stands, as the National Basketball Association andNational Football League evidently do. The answer isstraightforward--the league seems to have concluded that the opportunityto capture abandoned baseballs at ballparks induces fans to attendgames. Thus, by abandoning valuable property but limiting the potentialclaimants of that property almost entirely to paying fans. (32) MajorLeague Baseball plausibly maximizes its own profits. Major LeagueBaseball is not the only entity to recognize that abandonment might lenditself to profit maximization by opening up ancillary revenue streams.One clever Craigslist poster offered a free HDTV that was in need ofexpensive repairs and noted, "As an added bonus, you can buy the[TV] stand for 50 bucks!" (33)

Now for some less straightforward cases. Devon, England, has beencelebrating the Hot Pennies Ceremony for over 750 years. During theceremony, town residents throw buckets of coins from buildings into thestreets, where they are scooped up by the crowds below. (34) Althoughthe ceremony has now become a successful tourist attraction--consistentwith the Major League Baseball explanation of abandoned baseballs--itsorigins were rather different. Although debate exists, some believe thatthe items tossed into the streets were initially coins that had beenheated to high temperatures "so that rich people could amusethemselves by witnessing poor people burning themselves." (35) Inan updated echo of this ancient ceremony, athletes, musicians, models,and other public figures have gained notoriety by tossinglarge-denomination bills into the air in public places. In hip-hopculture the practice has been referred to as "making it rain,"and media accounts have popped up around the globe describing thepractice, with one sports columnist referring to it as a"tradition" among athletes. (36) Boxing champion FloydMayweather Jr. has become famous for the practice of tossing stacks ofhundred-dollar bills into the air so that he can watch fans scramble forthem. (37) Likewise, football player Adam "Pacman" Jones wasarrested after allegedly sending tens of thousands of dollars airborneat a Las Vegas strip club, sparking a violent melee. (38) In homage toJones, Comedian George Lopez tosses one thousand dollars intwenty-dollar bills into the crowd at a golf tournament each year. (39)Even purportedly cash-strapped collegiate athletes have gotten into theact, triggering brawls at nightclubs. (40) Making it rain has evenworked down-market, with models from the clothing line Shmack gettingpress coverage for tossing four hundred one-dollar bills into a crowdafter a fashion show, (41) around the same time that an unidentifiedAlbany basketball fan threw fifty one-dollar bills into the crowd at ahigh school basketball game, causing a disturbance that forced thegame's cancellation. (42) The practice of abandoning specie is, inshort, a strategy for accomplishing any number of rational objectives:garnering attention, signaling wealth, or being entertained (for peoplewith perverse entertainment preferences).

In the last few years, however, the abandonment of positive-valueproperty has become mainstream and organized by a group far removed fromthe hip-hop set, thanks to an emerging outdoor activity calledgeocaching. Geocaching was invented by David Ulmer in 2000. (43) Shortlyafter highly precise GPS receivers were first made available to ordinaryconsumers, Ulmer "hid a treasure near his home, posted thecoordinates on the web, and challenged people to find it." (44)Other owners of GPS receivers soon followed suit, hiding their owntreasures in waterproof containers and posting their coordinates onwww.geocaching.com, a web site that contained 915,752 active caches asof October 6, 2009. (45) There are active geocaches in more than onehundred countries and on every continent. (46) Caches typically includeinexpensive items, like coins, carnival prizes, Match Box cars, orrubber erasers, and the expectation is that each geocacher who finds thecache will take the contents and leave another cache in the same placefor the next geocacher to find. (47) Individuals setting up geocachessometimes spend substantially more on the contents of a cache, however.Music CDs, concert and sporting event tickets, books, and costumejewelry are commonly left in caches. (48) Some geocachers leave a webcamat the specified location, permitting the person who finds it to posefor a picture that can then be sent to the person who hid the webcam.(49) Experienced geocachers will often carry a few luxury items withthem, so that they can leave an equal or higher value item for the nextgeocacher if they discover a high-value cache themselves. (50) Whenevera high-value item is left in the cache, whether it is something like awebcam that is not meant to be taken away or a cache that is intended tobe carried off by a finder, the creator of the cache runs a real riskthat the property will be taken by someone who leaves nothing behind--or"plundered," to use the term that geocachers prefer. (51) Whenthis happens, a disappointed geocacher typically notes on a geocachingweb site that the cache needs maintenance, and the person whoestablished it typically will restock it. (52)

Despite the common adherence to the norm dictating that someone whofinds a geocache should leave a trinket of equal or greater value behindfor the next geocacher, there is evidently no legal requirement thatthis be done. As a formal matter, a geocache left on public land isabandoned property, and the first person who finds it is entitled totake the entirety of the cache. This raises the questions of whygeocaching has thrived, and why individuals spend time and moneyestablishing caches to begin with. In a survey of geocachingparticipants, Chavez, Schneider, and Powell found that a narrow majorityof geocachers had never set up a geocache of their own. More than athird had created one to five geocaches, and a little more than fivepercent had set up more than ten geocaches. (53) It appears that adesire to gain reputational benefits drives relatively little of thegeocaching behavior. When the researchers asked geocachers about thebenefits of the activity, the desire to meet others was identified asthe least important motivation for their participation. (54) Geocachersfrequently go on treasure hunts with family and friends, however, whichsuggests that that there is a social dimension to looking for treasure,(55) but the reasons why individuals leave caches evidently have more todo with general altruism and a sense of ethical reciprocity than adesire to enhance one's reputation among strangers. (56)

Surveying the identified categories of abandoned property withpositive perceived value to the abandoner, we can identify threedistinct types of motivations for abandonment. First, the owner mayabandon property for profit-maximizing purposes, seeking to acquirerevenue streams for services that those claiming the abandoned propertywill need to purchase. It is conceivable that a GPS manufacturer likeGarmin could pursue a similar strategy with respect to geocaching byseeding geocaches all over the country as an inducement to purchase itsproducts. To my disappointment, I have been unable to turn up anyevidence that Garmin has pursued this strategy. (57) Second, the ownermay abandon property for reputation-enhancing purposes. Third, the ownermay abandon property for more altruistic reasons, which may have someconnection to entertainment value (as in making it rain) or norms ofreciprocity (as in geocaching).

More broadly, abandonment may provide an attractive alternative toother means of ridding oneself of positive-value property. Abandonmentis advantageous because it enables an owner to rid herself of propertywhile incurring neither the transaction costs of a bilateral transfernor the decision costs associated with a gift. (58) In that sense,abandonment represents another property fight designed to expand theowner's freedom of action. This brings to mind J.E. Penner'sjustification for abandonment, which is rooted in an individual'sautonomy interest:

 One ought not to be saddled with a relationship to a thing that one does not want, and an unbreakable relation to a thing would condemn the owner to having to deal with it. It would indeed be a funny turn of events if ... property in essence gave the things a person owned a power over him. (59)

On Penner's account, there is symmetry between a system oflaws that gives an individual the freedom to choose whether and when toacquire, and whether and when to be rid of, property. (60)

Penner's discussion of the relationship between abandonmentand autonomy is insightful, but he pulls one important punch. It isprecisely the unilateral nature of abandonment that makes it and thefight to destroy the most powerful manifestations of anindividual's autonomy interest in the bundle of property rights.(61) By letting an individual abandon property, the state is essentiallysaying to the owner, "We will allow you to rid yourself of aresource regardless of what anyone else has to say about thematter." As with its cousin, the fight to destroy, this unilateralempowerment of the abandoning owner raises the prospect ofdisempowerment of everybody else. Penner sensibly recognizes that thereare autonomy interests on both sides of the abandonment calculus:

 [W]hile the interest underpinning property incorporates the interest in getting rid of things one no longer wants, people also have an interest in not being harmed by the way that people deal with their things. This is both an interest that all individuals have, and a social interest, in that the maintenance of the environment is a collective good. The rules of title, specifically the rule that one's title is not extinguished unless another takes possession and acquires his own rifle, either gratuitously or for a fee, provide a means of ascribing responsibility to a person for the harms which his property may cause, even though he might wish to sever his relation to it.... [B]y relinquishing possession he may not avoid responsibility for the effects of his ownership, say the creation of hazardous industrial wastes. (62)

Some acts of abandonment may have the effect of saddling thirdparties with property that they do not want. The next Section considersthis and other potential problems with permitting abandonment.

B. Costs of Abandonment

Having considered the types of properties that are commonlyabandoned and the benefits that flow to their abandoners, it is worthassessing the costs that abandonment imposes on society. Althoughsignaling, reciprocity, and altruism may explain some abandonment ofpositive-market-value properties, the primary benefits associated withabandonment are reduced transaction and decision costs. Similarly, thereare two leading problems associated with the abandonment ofpositive-value resources. First, abandonment may create confusion as tothe state of ownership of property. Second, abandonment may result inthe deterioration of an asset's value while it remains unowned. Insome cases involving worthless property, abandonment may alsoexternalize disposal costs onto society. In other cases involvingvaluable property, abandonment may spark violent squabbling amongwould-be claimants.

Let us consider the confusion problem first. The legal treatment ofabandoned property differs from that of lost or mislaid property.Abandoned property belongs to the first person to find it and takepossession. (63) The finder of lost property typically prevails overanyone other than the true owner or a prior possessor. (64) Finally,mislaid property typically goes to the landowner on whose property theitem in question was found for safekeeping. (65) When an individualstumbles upon chattel property, it can be difficult to discern whetherit is abandoned, lost, or mislaid, and thus challenging for the finderto determine his rights and responsibilities.

Similarly, there are a number of noteworthy property cases in whichcourts had to confront substantial ambiguity over whether a resourceowner abandoned personal property or incorporeal interests in realproperty. In Eads v. Brazelton, the court struggled with the question ofwhether title to a shipwreck on the Mississippi River had been abandonedor retained by its owner. (66) In Haslem v. Lockwood, the courtvacillated in its discussion of whether piles of manure left overnighthad been abandoned. (67) In the macabre case of Hays v. Montague, thecourt had to decide whether the rifle that James Earl Ray left at thecrime scene after murdering Martin Luther King had been abandoned. (68)In Hawkins v. Mahoney, the majority and dissent sharply disagreed overwhether personal property left in a jail cell by an escaped inmate hadbeen abandoned. (69) And in Strong v. Detroit & Mackinac RailwayCo., the court held that a railway's explicit reference to its own"abandoned" railway line in a public document did not amountto abandonment of its incorporeal interest in the property. (70)Disputes about intent and abandonment can even make their way intointernational headlines. During the most recent presidential campaign, aproperty controversy arose in Israel after Barack Obama deposited a notein Jerusalem's Western Wall asking God to protect him and hisfamily. A yeshiva student standing nearby grabbed the note and gave itto an Israeli newspaper, which published it. (71) The lesson here isthat abandonment causes confusion, and confusion engenders socialcosts--it may spark controversy, moral qualms, and unnecessaryinvestments in determining the status of property. Ex ante, confusionmay deter finders from claiming valuable property that they discover,resulting in welfare losses. As this analysis indicates, one goal ofabandonment law should be to reduce the associated confusion costs. Iwill take up this issue in Part III.

The deterioration problem is also nearly universal in cases ofabandonment. Insofar as property forms a portion of ajurisdiction's tax base, abandonment may result in an ownershiplag, whereas gifts, sales, and bequests do not. The lag also means thata productive societal asset generates no value for a period of time.This lag is particularly troublesome in the case of an asset whosequality or value will decline the longer it remains unpossessed by anowner. The classic example is abandoned homes, which may experienceburst pipes, vandalism, vermin infestations, fixture stripping byscavengers, and icy sidewalks, or which may become dens of criminality,if they remain unoccupied for a significant period of time. (72) Onceagain, with most abandoned assets, the goal of law should be to reducethe time during which property remains up for grabs. I shall considerthis interest in Part III as well.

Two mutually exclusive costs of abandonment are disposal costs (inthe case of negative-market-value property) and lawless-race costs (inthe case of positive-market-value property). The former are bestexemplified in the context of environmentally contaminated realproperty, where CERCLA tries to impose cleanup costs on owners who tryto abandon their land. Examples of the latter include the Popov v.Hayashi and "Pacman" Jones disputes referenced earlier. Ifparticularly valuable property is to be abandoned, one can expect thatmany claimants will invest in capturing it, and those who seek to do somay try to obtain some advantage over their competitors by engaging inviolent or other unlawful acts. (73) That said, lawless races mayengender harms even if there is no outbreak of violence. Manycommunities throughout California had to cancel "bulky trashday," when homeowners were permitted to abandon large items forcollection at curbside, because scavengers inevitably rummaged throughabandoned property and made off with the valuable items beforegovernment and nonprofit-affiliated salvagers arrived. This increasedthe costs of sorting through and collecting what remained. (74) Finally,as discussed elsewhere in this Article, permitting abandonment mayencourage nonsustainable uses of a resource (75) and may prompt welfarelosses if an owner erroneously overestimates demand for property she isconsidering abandoning. (76)

C. Abandonment's Comparative Appeal

Although "unilateral transfer of property" provides astraightforward conceptual description of abandonment, such a definitionprovides little help to a court that must determine whether a particularset of actions and circ*mstances amount to a transfer. The common lawrequires that the party seeking to demonstrate abandonment of propertyestablish two elements. First, the owner must have intended torelinquish all interests in the property, with no intention that it beacquired by any particular person. Second, there must be a voluntary actby the owner effectuating that intent. (77) If property is abandoned, itbelongs to the first person who subsequently takes control of it. (78)Although it need not be part of the definition, the use of a public orcommunal space to effectuate a transfer is often a hallmark ofabandonment. (79) Notably, the abandoner can reclaim possession of theabandoned property if she does so before any other person appropriatesit. (80)

Although it is the second element that often looms large inabandonment litigation, the first is worth emphasizing for analyticalpurposes. True abandonment entails an individual relinquishing propertyto no one in particular. (81) Abandonment thus provides a property ownerwith a low-cost way to "roll the dice" as to the identity ofthe subsequent owner. In this way, it differs from virtually all otherforms of uncompensated relinquishment, where the subsequent taker orclass of takers is identified with particularity. (82) This "rollof the dice" element is important, because it means that a greatdeal of what is commonly called "abandonment" in the law isactually better deemed forfeiture. (83) For example, when the recordowner of a property with tax liens that exceed its market value"abandons" the property, she is not placing the resource upfor grabs. (84) Instead, she is enabling another party that alreadyholds an interest in the property to take possession of it. Theforfeiting owner's fractional ownership interest has seen its valuelowered to zero, but the resource as a whole likely retains positivevalue. The transfer is not unilateral but rather a voluntary transferfrom one record owner to another specifically contemplated at the timethe relevant property interests were created. (85) Similarly, when thebeneficiary of an easem*nt releases it, there is no abandonment becausethe transfer necessarily benefits the owner of the servient tenement."Abandonment," as used in the Bankruptcy Code, likewise doesnot count as abandonment for our purposes because the trusteenecessarily abandons property "to the debtor" or another partywith an interest in the property. (86)

Insofar as it necessarily entails a "roll of the dice,"abandonment has something in common with most sales. A generallyunderappreciated attribute of an auction or other sale is that theseller typically rolls the dice as to the identity of the subsequentowner. Sellers are usually indifferent to the identities of subsequentowners because that indifference is likely to maximize the sale price.(87) With abandonment, randomization must serve some different purpose.At first glance, the randomization that abandonment entails seems toundermine distributive justice. But compared with the viablealternatives, abandonment holds up reasonably well. Some charities, likeOxFam, for example, may specialize in trying to get resources to theplaces where they will do the most good, but bilateral markettransactions will rarely achieve this end because ability to payconstrains willingness to pay. Other charities, like elite universitiesor well-endowed symphonies, make no pretense of being the most deservingrecipient of donor largesse; rather, they tap into notions ofreciprocity or offer signaling benefits so as to attract donors. Intervivos gifts probably fare worse still on distributive grounds becausesocial networks tend to be heavily stratified by socioeconomic class.Thus, rich people may have few interactions with the poor people whowould be the most deserving recipients of their charity. (88)Abandonment of chattel property, by contrast, might fare reasonably wellfrom a distributive justice perspective, especially if poorer people aremore likely to be traveling through public spaces where property isabandoned and richer people, freegans notwithstanding, are less likelyto claim abandoned property in public spaces. (89) Of course, thelocation of the abandonment will have distributive justiceimplications--abandoning an item inside a gated community necessarilylimits the universe of possible claimants.

Upon close reflection, then, there appear to be several degrees ofdice rolling, and a spectrum of randomization emerges in the varioussorts of abandonment that we observe. The literature refers to twoaspects of a randomization decision--the size and composition of the"pool" of potential recipients, and the use of a weighted orunweighted lottery. (90) Theoretically, pure randomization would entaila pool consisting of every living person and an unweighted system forallocation. It would be impossible for abandonment to achieve thisdegree of randomization because of population clustering and disparateabilities among the populace to discover and capture abandonedresources. (91) Abandonment more typically entails impure randomizationwith a geographically confined pool and a weighted lottery within thatpool. The property owner leaves property in a particular spot, to beclaimed by the first person who finds and wants it. Obviously, if theproperty is abandoned in San Francisco, right outside theabandoner's home, then a San Francisco resident has a much betterchance of claiming the property than someone from Little Rock.Geocaching, discussed earlier, is less random still. Someone who leavesbehind a cache almost certainly has a fellow geocacher in mind as thesubsequent owner, though the geocacher does incur the risk that apasserby may claim the property instead. (92) Similarly, the sort ofabandonment that most typically shows up in Craigslist advertisem*ntsreflects impure randomization. The owner will give the property to thefirst person who shows up at her home or workplace requesting it. Inthese cases, the abandoner has no particular recipient in mind, butthere may be "warm glow" associated with the physical handoverof the property to a particular person who self selects. (93) In suchinstances, the transfer is something of a hybrid between abandonment andgifting. (94) Severely pool-restricted randomization transactionsoccasionally appear in the "free stuff' section of Craigslist.For example, one owner of a working piano offered it for free to a needychurch that wanted it. (95) By specifying a needy church as therecipient, the owner substantially limited the extent to whichsubsequent distribution was randomized. When a transaction has such alimited degree of randomization, it is inappropriate to characterize thetransfer as abandonment. Rather, it more closely resembles a class giftof the sort commonly seen in trusts and estates law.

An owner might prefer to randomize with respect to the identity ofthe property's subsequent owner because of a desire to reducedecision costs. Seen in these terms, abandonment has significant socialvalue as a way to gratuitously transfer property while minimizing thecosts of deciding that a particular person is the most appropriaterecipient. Although the stakes are obviously quite different,analogizing to adoption or organ donation may be helpful here. In bothinstances, individuals wishing to donate a precious resource have twooptions: they can either specify a recipient or elect to roll the dice.

The Bible contains perhaps the best known instance of childabandonment, when Jochebed placed the infant Moses in a basket on theNile in the hopes that he would be spared from being subjected to anedict putting all Jewish male newborns to death. (96) Acts likeJochebed's are not the mere stuff of legend, however. Indeed, herswould have been a tale to which many of the Bible's earlieraudiences could relate. Not long ago in western civilization, therelinquishment of newborns by their birth parents was startlinglycommonplace. John Boswell's definitive study of child abandonmentpresents some stark statistics:

 [I]n the late eighteenth century in Toulouse, one child in every four was known to have been abandoned. In poor quarters the rate reached 39.9 percent; even in rich parishes the rate was generally around 15 percent. In Lyons between 1750 and 1789 the number of children abandoned was approximately one-third the number of births. During the same period in Paris children known to have been abandoned account for between 20 and 30 percent of the registered births.... In Florence it ranged from a low of 14 percent of all baptized babies at the opening of the eighteenth century to a high of 43 percent early in the nineteenth. In Milan the opening of the eighteenth century witnessed a rate of 16 percent; by its closing it was 25.... Comparable figures are not available for other nations, although fragmentary evidence suggests very similar urban abandonment rates ranging from 15 to 30 percent of registered births. (97)

These disturbing statistics overstate the prevalence of abandonmentas the term is used in this Article. They include both literalabandonment--where babies and children were left up for grabs in publicplaces--and instances in which babies were sold or left with people orinstitutions that were to take care of them. (98) It appears that untilthe late Middle Ages, the abandonment of babies in public places wasquite common, as the public setting was viewed as the locale most likelyto cause the newborn to be noticed and taken in by a stranger--hopefullyto be adopted, perhaps to be enslaved. (99)

Over time, and apparently beginning in the late fourteenth centuryin Rome, foundling homes emerged to take in the large number of unwantedchildren, and they were often built with "a revolving door in aniche in the wall which allowed a parent or servant to deposit a childsafely without being observed." (100) They remained an importantpart of European life for the next several centuries. Rousseau depositedfive of his children in a foundling hospital in the mid-eighteenthcentury. (101) His subsequent explanation, written in code, contained amyriad of rationales for his cold-hearted conduct. (102) Fascinatingly,he began by differentiating his own conduct from true abandonment:"He claimed that since the children had been formally deposited,they were not really abandoned (deposes, not trouves)." (103) Hisdistinction was quite right as a matter of property law, though perhapsless persuasive during an era when seventy percent of the infantsdeposited at French foundlings died within the first year of theirlives. (104) Rousseau's second excuse echoed Penner'sautonomy-based defense of abandonment while missing entirelyPenner's recognition that abandonment can impose costs on thirdparties: (105) Rousseau's "hopes of doing important work wouldhave been ruined by the need to provide for a family." (106)Finally, Rousseau's ultimate effort to excuse his unfathomableactions reveals some attraction to the idea of dice rolling when it cameto the placement of children in families: "Clearly the foundlinghospital was the best choice: it would raise the children to be sturdilyself-sufficient, 'not gentlemen but peasants or workers,'....Didn't Plato argue that children should be brought up by the statewith no knowledge of their parents?" (107) In short, for much ofEuropean history, the impulse to abandon infants was powerful, as socialand religious norms largely tolerated the practice--or, in the case ofillegitimate offspring, even encouraged it. (108) Indeed, abandonmentwas sometimes the primary alternative to infanticide or baby selling.

The revolving doors of early foundling houses have contemporaryechoes in modern Europe and America. (109) During the Gilded Age,Americans celebrated what one might call reverse Rousseauian dicerolling: stories of abandoned babies being adopted by wealthy elites.(110) In contemporary America, only about 1.5% of newborns are placed upfor adoption, (111) but the impulse to roll the dice with respect toplacement of a child has not dissipated fully. Closed adoptions, wherethe birth parents have no say in the placement of their offspring andremain anonymous, were long the norm in the United States, though thatis quickly changing. (112) The shifting practices may result from thedesire of most birth parents to exercise greater control over theidentities of their children's adoptive parents. Many birthparents, interviewed after the fact, "expressed incredulity thatthey entrusted their child to strangers," and nearly half of thebirth parents interviewed described the decision to give their childrenup for adoption as a mistake they wished they could undo. (113) Yetrolling the dice remains attractive to a minority of birth parents. Thisis particularly true for parents wishing to avoid the complexity ofrelationships with a child they have relinquished and a new set ofparents who have displaced them. (114) Not surprisingly, all birthparents choosing to give up their children for adoption insist on somerestrictions on the composition of the pool of adoptiveparents--individuals choosing closed adoptions typically hand over theirnewborns to adoption agencies or local authorities for placement withadoptive parents. (115) Nor are birth parents clamoring for adoptionagencies to make placement decisions on a purely random basis--fit andmatch are part of an agency's calculus about where a particularchild is most likely to thrive. (116) Still, the birth parents'delegation of the wrenching decisions as to which adoptive parents aremost deserving or can provide the best home is a way for the biologicalparents to reduce the psychological bond with their offspring andperhaps help protect their anonymity. (117) Rolling the dice to somedegree makes it easier for the biological parents to move on.

Similarly, in the organ-donation context, pure randomization doesnot exist. The pool of potential recipients is limited to people in needof a transplant. But this wrinkle is not unlike abandonment of otherforms of property--like geocaching--where the claimant ofpositive-market-value property will surely be someone who wants it andexpends some effort to take possession. Live kidney donations torelatives and acquaintances are far more common than live donations tostrangers. (118) Indeed, many transplant centers refuse to accept kidneydonations in the absence of a genetic or social relationship between thedonor and donee. (119) The few transplant centers that permitindividuals to donate a kidney anonymously to the top person on thekidney waiting list performed a little over a hundred such transplantsin the United States as of 2003. (120) In the context of bone marrowdonation, where the costs of being a donor are lower than thoseassociated with surrendering a kidney but higher than those associatedwith donating blood, (121) donation to a stranger is more common butstill unusual. (122) Most blood is donated to strangers, thoughrelatives may bank blood to be used by a loved one before an operation.(123) The trend with donations of biological material appears to be,then, that random transfers are very uncommon when the donor is mostreluctant to part with the resource in question and become more commonas the donor approaches indifference as to whether or not to part withthe resource. (124) Seen in this light, some biological parents'willingness to roll the dice somewhat with respect to the identities ofadoptive parents makes more sense. These birth parents' motivationto part with their offspring is quite strong.

Plainly, the decision costs associated with the abandonment of achild or the relinquishment of a transplantable organ will dwarf thedecision costs associated with the abandonment of most property. Assuggested above, relinquishing a child often results in significantregret and psychological trauma. But one need not equate the magnitudeof these costs in order to recognize the similarities. Deciding toabandon property is no easier than deciding to donate it, but havingdecided on abandonment the owner need no longer worry about the identityof the subsequent recipient. (125) Historical and contemporary practicesuggests that this benefit was substantial in the case of veryhigh-stakes resources, and there is little reason to think that thebenefits of reduced decision costs would not manifest themselves inlower-stakes contexts, too.

The transaction-costs savings associated with abandonment also canbe significant. Suppose an owner has a positive-market-value asset thatshe no longer wants. Consider the alternatives to abandonment. A salewill bring the owner revenue but may also require the expenditure oftime, money, and effort. If the market for a product is well-developed,then the owner will be drawn toward a sale. For that reason, the rise ofeBay probably resulted in a large decline in the prevalence of abandonedproperty. (126) But even in a nation of ubiquitous eBay access andscores of eBay drop centers, many owners still put chattel property onthe sidewalk. From this we can infer that the transaction costs of eveneBay sales are not negligible. In order to auction a product on eBay,sellers must compose an advertisem*nt for the product, specify aduration for the auction, communicate with the winning bidder aboutpayment and shipping, arrange for delivery, and run the risk that thebuyer will defraud them. (127) A repeat seller may well find it worthher while to "lawyer up" as well, so as to reduce the riskthat she will be sued if buyers emerge from their transactions unhappyor if the property sold injures its purchaser.

The transaction costs of gifts are not negligible either. Indeciding upon a recipient for a gift, the donor must evaluate thatdonee's preferences and existing assets. No one wants to be theresented gift giver who donates a tyrannical heirloom to a loved one--agift that the recipient does not want but feels guilty discarding. (128)Then, having decided upon a recipient, the donor must arrange fordelivery, which again will entail the costs and inconvenience of a tripto the post office or to the recipient's home.

A recent exogenous shock illustrates some of these transactioncosts. Recently, most major American airlines have begun charging theircustomers for bringing checked luggage on flights. This new pricingpolicy has almost certainly increased the prevalence of propertyabandonment. (129) Suppose a family is going on a two-week vacation andrenting a condominium that does not provide infant cribs. A two-weekcrib rental typically exceeds the cost of a travel crib purchase, so therational traveler will simply buy a travel-crib upon reaching herdestination, use it for two weeks, and then abandon it at the conclusionof the trip. Surely, the crib purchaser would prefer to donate the cribto a needy family, but the costs of locating a local needy family andarranging for delivery on the last day of a vacation will beprohibitively high. The cost of bringing the crib home in checkedluggage will exceed the crib's market value. Destruction of thecrib seems wasteful, so abandonment is almost certainly going to be themost sensible option for our vacationers.

In short, both sales and gifts are bilateral transactions, and suchtransactions necessarily entail transaction costs. In some cases, theproperty to be transferred is sufficiently valuable that thesetransaction costs are easily overcome. The odds that the owner will optfor a unilateral means of relinquishment increase in certain situations(e.g., if the property does not have a particularly high value, thenature of the property raises potential transaction costs, or thepossessor wishes to hide the fact of her possession).

Once we recall that the universe of unilateral relinquishment islimited to abandonment and destruction, we develop a betterunderstanding of the dangers of restricting abandonment too much. Withrespect to a positive-market-value asset, society is generally betteroff if the owner opts for abandonment over destruction. Permittingdestruction and forbidding abandonment of these assets is folly. Withrespect to a negative-market-value asset, the reverse is usually true.Even this simple axiom about negative-market-value property, however, issubject to two caveats.

First, note that there are two kinds of negative-value assets. Thefirst sort is a resource with negative intrinsic value, such as arotting pineapple, a broken stapler, or a sound recording by WilliamHung. For these assets, society certainly prefers that the owner destroythe asset rather than abandon it, which would externalize the disposalcosts to society. The second kind is a resource that comes bundled witha liability that exceeds its positive intrinsic value. Consider a houseworth $50,000, with tax liens against it totaling $75,000. Recall thatsuch an asset's negative value stems entirely from the bundling ofdifferent sticks in the bundle of property rights, such that unbundlingwill yield a positive-value resource. (130) Here, destruction of theunderlying asset is extremely undesirable, because it eliminates aproductive resource and imposes a $75,000 loss on the lien holder.Permissive abandonment--a rule that would allow the owner to walk awayfrom the resource and the liability--is not as bad, because it preservesthe intrinsically valuable asset while imposing the same loss on thelien holder. A rule permitting such abandonment may well spark a lawlessrace. The superior rule in these instances would prohibit abandonmentand require the lien holder to foreclose on or otherwise take possessionof the property and force its sale. This is precisely what U.S. lawdoes. (131) The lien holder can now auction off an unencumbered asset,presumably fetching a $50,000 return, resulting in a loss of only$25,000. Foreclosure thus dominates permissive abandonment because itforestalls a lawless race and provides the lien holder with somesecurity in the event of a default, which will increase a lienholder's willingness to extend credit ex ante.

Second, recall our concern over lawless-race costs. If abandonmentof a positive-value asset causes a large number of people to engage inviolent jostling or other tortious behavior to be the first to retrievethe asset, then society suffers. It is conceivable that, with respect tovaluable property where the expected disposal costs are low, thetransaction costs of a bilateral transfer are high, and the risk of alawless race is high; destruction--rather than abandonment--maximizessocial welfare. (132) Though these cases are likely to be rare, thisanalysis suggests that society's openness toward abandonment shouldbe a function of its baseline level of antisocial behavior.

There are other important considerations that bear on the questionof whether the law should attempt to nudge owners toward eitherabandonment or its alternatives. Abandonment is the method ofintentionally relinquishing property that most frequently gives rise toconfusion costs. That is a legitimate reason for curtailing thepractice. Sales and gifts are rarely confusing, though it might not seemthat way to law students and legal academics because cases involvingambiguity are a staple of law school casebooks. (133) There can be noconfusion about the ownership of property that has been destroyed. Buthistorically, when property has been abandoned, the result is ambiguitythat imposes costs on the third parties who are charged with respectingin rem rights. (134) To push the point further, as the fraction ofseemingly unpossessed property that is abandoned rises, the odds thatlost or mislaid property will be returned to its rightful owner fall.(135)

Mistakes may also arise more frequently in the abandonment context.Whereas the negotiation involved in a sale and the communicationtypically associated with a gift provide a property owner with valuableinformation about how third parties assess the value of an asset, theunilateral nature of abandonment deprives the resource owner of thisinformation, raising the odds of a mistake. Notably, however,abandonment dominates destruction on this score because the latter isirrevocable and the former is not. If nobody claims property that anowner has abandoned, the prior owner is as entitled as anyone else toretake possession.

One can imagine a regime taking a hard line against bothabandonment and destruction. Deprived of both unilateral means ofrelinquishment, how might we expect property owners to behave? Theymight fall back on the gift or sale strategies. Or, quite possibly, theymight allow property to gather dust. This is another common, andgenerally undertheorized, property right. When exercised, it removesproductive assets from the economy, contributes to clutter, and canimpose significant costs on next of kin when the property remains instorage until the owner's demise. Contrasted with this alternative,abandonment and perhaps even destruction seem rather attractive.

II. THE LAW OF ABANDONMENT

In the United States there are a variety of statutes governingabandonment.

All are subject-matter specific. We can identify five basicapproaches that manifest themselves in American law: (1) permissiveregimes, (2) prohibition regimes, (3) escheat regimes, (4) licensingregimes, and (5) encouragement regimes.

A. Permissive Regimes

As the name implies, a permissive regime is one in which theabandonment of property by its owner is typically lawful, and the firstperson who takes possession of the property becomes its new owner, withrights good against the entire world. Setting aside pets and hazardouswaste, this is the rule that governs most abandoned chattel property.While there may be time, place, and manner restrictions on suchabandonment (e.g., via antilittering laws, attractive-nuisance causes ofaction in tort, or restrictions on abandoning a car in the middle of theroad), the law is appropriately characterized as permissive. Hence, anewspaper publisher may leave two thousand copies of its newspaper in apublicly accessible place, to be picked up by whoever wants some freereading materials, (136) and consumers may happily drink free beveragesamples at a grocery store without worrying about being confronted witha bill or violating the law. (137)

The trademark regime under the Lanham Act is perhaps the mostwidely known example of a permissive abandonment regime. Under section45 of the Lanham Act, a mark is considered abandoned if its "usehas been discontinued with intent not to resume such use." (138)The statute further provides that nonuse for three years constitutesprima facie evidence of abandonment. (139) As interpreted by the courts,"intent not to resume such use" is a lower standard than"intent to abandon," with the result being that if a trademarkholder intends to resume use at some point in the indefinite future, afinding of statutory abandonment is appropriate. (140) The permissivenature of the abandonment regime stems from the policies underlyingtrademark law. Trademark is an intellectual property regime in whichrights are conferred upon firms for the benefit of consumers. Trademarkrights are like water rights or the right to remain in rent-controlledhousing, and unlike fee-simple rights, in that use is a condition ofcontinued ownership. (141) Truly permanent ownership of a mark may,therefore, be more achievable in theory than in practice. In thetrademark context, the user removes a word, phrase, or symbol from thepublic domain, but in so doing lessens the likelihood of consumerconfusion, permits the user to invest in good will, and lowers consumersearch costs. (142) When a trademark falls into disuse, there is nolonger any justification for impoverishing the public domain, howeverslightly, so the mark is returned to the commons where it can beappropriated by any other firm that wishes to use it in commerce. Notethat in this important sense copyright diverges from trademark. Once acopyrighted work is dedicated to the public domain, it can never beprivately owned again. (143) Copyright "abandonment" istherefore in some sense an in-apt phrase in the same way that"abandonment" of incorporeal interests in land and bankruptcy"abandonments" are misnomers. (144) There is no"roll" of the dice following the abandonment of acopyright--ownership of an abandoned copyrighted work is necessarilypublic.

A good example of the permissive approach being embraced by thecommon law courts, despite the possibility of negative externalitiesassociated with abandonment, is Long v. Dilling Mechanical Contractors.(145) In that case, Dilling placed trash in an unlocked dumpster on itspersonal property, two feet from the sidewalk. (146) Long, a labororganizer hoping to unionize Dilling's workplace, removed severalbags of trash from Dilling's dumpster, hoping to find the names andcontact information of Dilling employees so that he could contact them.(147) After learning about this conduct, Dilling alleged that Long hadstolen its property--which it asserted had not been abandoned but ratherleft in the dumpster to be taken away by a trash-hauling company withwhich Dilling had contracted. (148) Dilling sued Long for civilviolations of Indiana's laws against theft, burglary, criminaltrespass, and corrupt business practices. (149) The appellate courtreversed a finding of liability against Long under Indiana law, holdingthat the trash had been abandoned successfully when Dilling placed it inthe dumpster. (150) Implicit in this analysis is the idea that it wouldhave been proper for Dilling to abandon its refuse in a dumpster, evenif it had ceased paying a waste-removal company to empty the dumpster atparticular intervals. Such a rule might pose problems if the waste pilesup because no one comes along to remove the refuse voluntarily--asituation that recently plagued Naples, Italy. (151) But the Long courtpresumably thought that nuisance law could kick in at that point,particularly in the case of an owner who dumped trash on her ownproperty. (152) In Sharpe v. Turley, a recent case very similar to Longfactually, a Texas court parted ways with Long, holding that trash leftin a dumpster was not abandoned. The court held that a party depositingits trash in a dumpster does not intend to leave the property towhomever wishes to take possession of it, but rather wishes to transferit to a waste-hauling firm for disposal. (153) The Sharpe court seemedto think it was decisive that the property owner and waste-hauling firmhad a contract requiring that the latter remove the former's waste.But it is not clear whether this contract's existence or termsresolved the issue one way or another. The contract could well have beenconstrued to require the waste-hauling firm to remove only that wastewhich had not been disposed of by a third party prior to the haulingfirm's arrival upon the premises.

Both Long and Sharpe nicely illustrate the stakes in abandonmentcases. In both cases, the ambiguity surrounding the act of depositingtrash at the curbside, combined with the contested social meaning ofthat act, contributed to confusion and opportunistic behavior. In bothcases, the party disposing of its waste tried furiously ex post torestrict the pool of potential claimants from a nearly infinite group(would-be claimants of abandoned property) to a solitary eligibleclaimant (the waste hauler). And in both cases, the plaintiffsoverwhelmingly preferred destruction of the resource to abandonment,precisely because of the positive economic value that the rubbish wouldhave to entities with competing economic interests. The lack of a clearlegal rule across jurisdictions on an issue that people encounter everyday--can a stranger rifle through my household waste and take what shewants?--is at least disconcerting. (154) If someone in Indiana (therelevant state in Long) or anywhere the law is ambiguous wants to besafe, the law shrugs its shoulders and refers its citizens to self-helpvia shredders and fireplaces.

The conventional understanding within the American legal academy isthat the abandonment of both real and chattel property is permittedunder the civil law. (155) It turns out that the truth is morecomplicated with respect to real property. The German Civil Codeprovides that "ownership of a piece of land may be relinquished bya declaration of relinquishment tendered by the owner to the LandRegistry Office and by registration of the relinquishment in the LandRegister." (156) Evidently, under German law, the state may, butneed not, claim subsequent ownership. (157) The German civil law regimetherefore represents a true permissive regime of abandonment withrespect to both chattel and personal property. Other civil law regimes,however, deviate from the German approach. They are appropriatelycharacterized as escheat regimes, which are discussed in the followingSection.

B. Escheat

Several civil law regimes permit an owner to relinquish land butonly to the state. This act may constitute abandonment in the colloquialsense, but it does not satisfy the narrow definition of abandonment usedhere. (158) More broadly, an escheat regime is one in which abandonedproperty automatically becomes the property of the jurisdiction in whichit is abandoned or in which the abandoning owner resides. It is worthmentioning that an escheat regime, by its nature, entails no "rollof the dice," at least if the abandoning owner is informed of thelaw. Put another way, we might conceptualize abandonment in an escheatjurisdiction as a gift to the state. (159)

Polish law permits an owner to relinquish real property via anotarized deed with the consent of a local government official, (160)but this act transfers title to the local government rather than renderthe land "up for grabs." French law similarly provides thatthe commune in whose territory abandoned land is situated has the firstfight of refusal to abandoned land, and if it waives this right, theland becomes part of the public domain--the national government'sproperty. (161) Italian law is similar, providing that "[i]mmovableproperty that is not owned by anyone is included in the patrimony of theState." (162) The laws of several Latin American countries followthe Polish approach more closely than the German one. Argentina, Chile,and Ecuador permit the abandonment of chattel property but provide thatany real property abandoned by its owner becomes the property of thestate. (163) Brazilian law granted title to the first possessor ofabandoned chattels but provided that abandoned land "shall be heldas vacant property ... and shall pass, after ten years, to the dominionof the State." (164)

Interestingly, although civil law countries generally embraceescheat for real property, their rules regarding chattels areappropriately described as permissive: the first claimant of abandonedpersonal property becomes the new owner. (165) In the United States, bycontrast, escheat is employed for certain abandoned chattels. Theleading American example of an escheat regime is the Uniform UnclaimedProperty Act of 1995, which has been enacted in all fifty states andprovides a framework by which unclaimed property is transferred to stategovernments after a specified period of time. The Act provides, forexample, that travelers' checks become the property of the statefifteen years after issuance, and the same happens to money orders afterseven years. (166) The contents of a safe deposit box belong to thestate five years after the expiration of the lease for the box, providedthe owner has not reclaimed them in the interim. (167) The Act providesthat states must advertise the availability of the unclaimed property atleast three weeks prior to offering it for sale. (168) This sale issupposed to take place within three years of the state taking possessionof the property, and, in most cases, the state may then keep theproceeds. (169) Critically, there is no inquiry into the owner'sintent under the statute. Even if an owner has forgotten about, lost, ormislaid property, it will be presumed abandoned at the end of theapplicable statutory term. (170) The chief advantage of uniformity hereis that it facilitates the creation of a national registry of unclaimedproperty. This registry is readily searchable on the Internet, where onepopular clearinghouse contains data about unclaimed property inforty-four states. (171)

The rationale for state ownership of chattels, then, is to increasethe chances that the lost, mislaid, or forgotten property will bereunified with its original owner by enabling the growth of a singledatabase where original owners can recover their belongings. (172) It islikely, however, that state ownership is not optimal in thisregard--besides passively making information about lost propertyavailable to people who are savvy enough to search for it and incurringstorage costs (usually trivial in the case of currency or other paperassets), the states appear to do little to justify their possession ofthe property. States have returned an estimated four percent of theunclaimed property obtained under the Act to its original owners. (173)Almost certainly, private firms given financial incentives to track downowners could achieve a better success rate. Perhaps the argument forstate ownership is that it is the least bad of thealternatives--returning the property in question to the bank, landlord,or gift-certificate-issuing vendor might encourage that party to takesteps to increase the odds that the property will be unclaimed. (174)That is a strategy that ought not to be particularly successful in acompetitive marketplace, however, if consumers are well-informed andwill avoid doing business ex ante with companies that have lessforgiving policies in this regard. It may be that the stakes aresufficiently low, optimistic bias is sufficiently prevalent, or theperceived salience of the unclaimed property issue is negligible, whichwould help buttress the justification for the escheat regime. Indeed, itis worth wondering whether the goal of reunifying individuals withproperty they have forgotten about is a worthy one; perhaps the lawshould encourage owners to take more precautions with theirtravelers' checks and money orders.

Another well-established domestic escheat regime is the FederalAbandoned Shipwreck Act of 1987 (ASA). (175) The Act provides that anyabandoned ship embedded in or located on the submerged lands of a state(176) is the property of that state. The meaning of abandonment underthe Act is quite similar to the common law meaning of propertyabandonment--the owner has deserted it and manifested an intention ofrelinquishing ownership. (178) Intent, which is ignored in the UniformUnclaimed Property Act, therefore becomes quite important under the ASA.To show abandonment, it is not necessary that the original owneractively disclaimed title, unless the vessel was a military or othergovernmental ship. (179) The typical posture of ASA litigation is thatsomeone has found an undiscovered shipwreck and purchased any claims toit from the successors of the vessel's owner (usually an insurancecompany). (180) The government then argues that the vessel wasabandoned, whereas the discoverer argues that it was not. The primarycriticism of the ASA suggests that it inadequately incentivizes thesocially useful task of finding abandoned shipwrecks and prompts somesalvaging companies to fail to report their finds. (181) Its defendersargue that states have stronger incentives to ensure that abandonedshipwrecks will be preserved for historical and archeological purposesrather than stripped of valuable assets in a hasty way. (182) Yet thisdefense rings hollow as a matter of policy. The state can regulate usesof property without taking title to that property.

C. Prohibition

Prohibition regimes sometimes arise in the context of chattelproperty. For example, most American states explicitly categorize theabandonment of pets or livestock as animal cruelty, punishable as amisdemeanor. (183) One rationale for the prohibitory rule is that anunowned animal may create negative externalities by spreading disease,breeding strays, or colliding with motor vehicles. The primaryexplanation for the prohibitory rule, however, likely stems from ananimal's status as a living thing that is capable of suffering. Theabandonment of an animal typically diminishes its welfare. The criminalprohibition against abandonment thus encourages owners to relinquishowner ship in a manner that will be less harmful to the animal inquestion by donating the animal to a shelter.

Prohibition regimes are most prominent in the context of realestate at common law. The leading case here is Pocono Springs CivicAss'n v. MacKenzie, which held that perfect title to real propertycannot be abandoned. (184) Note, however, that lesser interests in landare treated differently. The conventional account holds that at commonlaw, corporeal hereditaments like fee simple interests could not beabandoned but incorporeal interests (e.g., easem*nts, mineral interests,and licenses) could. (185) This account is incorrect if abandonment isto be defined coherently. (186) In any event, the common explanation forthe distinction in the legal treatment of corporeal and incorporealinterests is historical. Essentially, in the English feudal system, thecrown could not tolerate the nonownership of land between the time ofabandonment and reclamation because no feudal incidents would be paid inthe interim. As one commentator notes,

 The continuing validity of the policy against voids and gaps in the chain of title may be open to criticism insofar as its only function was to protect a certain political relationship of the feudal system that is no longer in existence. The services, or incidents, that a tenant was required to perform for his lord were not personal obligations, but obligations that ran with the land. The rule against abandonment.., was designed to protect the lord by ensuring that he would always have a tenant to whom he could look for performance of the incidents. (187)

Superficially, these feudal incidents appear to have a contemporaryanalogue that would justify the law's antagonism toward theabandonment of real property. Real property taxes are the modern-dayequivalent of feudal incidents. Hence, state and local governments mightconclude that, for some period of time, there will be no one to pay atax bill on an abandoned parcel, even though the parcel presumablyrequires some expenditure of state resources (e.g., for preventing crimeon the property or maintaining nearby roads). In theory, the same policyargument could preclude the abandonment of chattel property. But chattelproperty is not typically subject to state and local property taxes--atleast not in the United States. Hence, the interim period when there isno record owner ordinarily does not directly deprive the government ofrevenue.

Under scrutiny, however, this static argument for the common lawrule breaks down. Abandoned real property, like abandoned chattelproperty, often has negative market value, in which case the stateshould not be levying taxes against it. To the extent that the statedoes levy taxes, it does so on the basis of outdated information aboutthe resource's value or an unwillingness to foreclose on its taxliens. If the property in question has positive market value, it shouldbe taxed by the state, but it should also be claimed by a new owner inshort order.

If nobody claims such property, this suggests the presence ofsevere informational asymmetries. Namely, would-be owners of the landmay not know of its availability, may worry about whether it hasactually been abandoned, or may infer from the fact of abandonment thatthe property in question is actually a negative-value asset. As Part IIIwill show, the correct legal response to this situation is not a blanketprohibition on the abandonment of real property, but an effort tosupplement the information available to those who would like to takeownership.

A better argument for the common law rule prohibiting abandonmentof fee simple interests in land tackles the problem not from the staticperspective outlined above but from a dynamic one. Namely, a regime thatprevents individuals from abandoning real property might encourage themto use the property in a more sustainable way. We can look to theBrazilian rain forests for an example of how the common law mightimprove social welfare. It is common for Brazilian ranchers to chop downportions of the Amazon rain forest, use the land quite intensively forcattle ranching, and then, typically within eight years, abandon theland, which will have become worthless scrubland thanks to overgrazing.(188) The rancher then moves on to greener pastures (or forests) andbegins the process anew. Brazil permits the abandonment of realproperty. (189) Were it to prohibit abandonment, the law might encourageland owners to evaluate their own practices with a longer time horizonin mind, shifting strategies from slash-and-burn to techniques more inline with maximizing the long term value of the property. (190) On thisaccount, the common law rule regarding abandonment might function as adefense against economic conditions that encourage short-sighted uses ofland. (191)

Needless to say, prohibiting the abandonment of real property ishardly the optimal legal intervention for furthering these objectives.Suppose that the legal system sensibly assesses property taxes based ona parcel's peak value rather than its current value as a mechanismto buttress a rule against abandonment. Ranchers might try to circumventthe law by selling a property whose value has been depleted to ajudgment-proof buyer for a nominal amount. (192) Direct prohibitions onconsumptive uses of land or Pigouvian taxes on such uses are bound to bemore effective, assuming they can be enforced to the same degree as aprohibition on abandonment. On this point there is little reason tothink that the prohibition on abandonment can be enforced any moreefficiently than these alternatives. (193) For instance, if the remedyfor abandonment is the imposition of continued tax liability on theabandoner, then a Pigouvian tax--which could be imposed on a landownerwhile she still possesses and has an economic interest in theproperty--will always be superior to a remedy that tries to extract taxrevenue from an owner who has left the property behind.

Note that there may be contexts in which promoting"sustainability" by prohibiting abandonment is questionable oreven undesirable. To analogize, consider two hypothetical ivory-towerworkplaces. The first faculty is extremely risk averse, finding theprospect of a tenure battle intolerable. As a result, it virtually neverhires untenured professors, and those rare souls that do get hired areextremely "safe" scholarly prospects. The second faculty isless risk averse. Although it regards tenure denials as tragic for thescholars involved and very unfortunate for the institution, it iswilling to "abandon" a scholar at tenure time if she has notdemonstrated excellent scholarship and teaching, ff upside reward anddownside risk are correlated, we can expect that the secondfaculty's hires will have greater potential to become stars thanthe first faculty's. In a world where faculties one and two arecompeting for talent, it is by no means obvious that either strategywill dominate, and a great deal of self-sorting may occur. But flatlyprohibiting abandonment in this academic context has costs that are moreapparent here than they are in the Amazon. (194) This analogy might helpus see a downside to overly restrictive abandonment rules in real andchattel property contexts. Suppose there is a large number of distressedhomes in a community, or polluted parcels that may have substantialmineral wealth underneath. A rule prohibiting abandonment in thesecontexts might ensure that these resources go underutilized because ofthe risks associated with trying to repair and exploit the resources inquestion. Seen in this light, a rule permitting abandonment functions asa kind of insurance policy for investors in high-risk, high-rewardproperty.

D. Licensing

A licensing regime is one in which governmental consent is requiredin order for an individual or entity to abandon property. A railwayseeking to abandon an unprofitable or otherwise undesired line hasneeded the permission of the federal government to do so since 1920.(195) The right to block railway abandonments was initially vested inthe Interstate Commerce Commission, and it has been exercised by theSurface Transportation Board (STB) since the Commission's demise.(196) The petition for a declaration of abandonment can be brought bythe railway-line owner. (197) In deciding whether to approve anapplication for abandonment, the STB is to weigh "the interests ofthose now served by the present line on the one hand, and the interestsof the carrier and the transportation system on the other." (198)

The licensing regime for railroad rights of way is rather unusual,but it is best explained by the heavily regulated nature of the railroadindustry. Railway carriers, like telephone and cable providers, may berequired to serve some unprofitable customers in exchange for limitedmonopoly protection in servicing profitable ones. In deciding whether topermit the abandonment of a rail line, the STB is really decidingwhether to permit the abandonment of a railway's promise to provideservice to a particular community. The law thus accounts for theexternalities associated with property abandonment and refuses to permitabandonment where those negative externalities would be too great. Inthat sense, the licensing regime resembles the prohibition regime, whichattempts to limit abandonment where abandonment entails significantnegative externalities. The law similarly would frown upon a landownerwho agreed to purchase for a nominal amount two connected parcels ofland, one of which had high value and the other of which had negativevalue because of contamination, and then tried to abandon thecontaminated parcel without remediating the pollution. A licensingregime may well be superior to the common law prohibition on theabandonment of land because it contains an escape hatch that isresponsive to changed circ*mstances. On the other hand, becausedecisionmaking is delegated to an administrative agency, there is a riskof interest-group capture. If such capture occurs, then railwayabandonment may begin to resemble a permissive regime.

E. Promoting Abandonment?

We have established that the state might flatly permit or prohibitabandonment, exercise discretion about when abandonment can occur, ortake possession of abandoned property itself. In theory, there is alsothe possibility that the law will actually encourageabandonment--privileging it over gifts, sales, and destruction. Inpractice, it is hard to imagine why a jurisdiction would want to dothis--the benefits of abandonment are real, but they flow mostly to theabandoning owner, not to society writ large. That said, we can findsomething that looks a bit like an abandonment promotion regime in onejurisdiction's treatment of animals.

Under Mississippi law, if the owner of an animal abandons it, theremedy is seizure by the state. (199) The statute provides a series ofprocedural protections for the owners of such animals to reclaim them ifthey can show that they would care for them adequately in the future.(200) Upon their failure to do so, the law provides for transfer oftitle to an animal-control agency for the purposes of providingeuthanasia where appropriate. Alternatively, the animals may beauctioned off, with the proceeds used to repay the state for boardingcosts and any remainder returned to the abandoning owner. (201) No otherAmerican jurisdiction has the same statutory language on the books, andwhile animal abandonment is a crime in most other jurisdictions, (202)it does not appear to be one in Mississippi. The regime in Mississippiis thus a strange hybrid of systems for regulating abandonment. It hasaspects of an escheat regime, in that the state plays a large role indisposing of the property. But in its operation, it most closelyresembles a permissive regime taken to the extreme. If an animal ownerabandons the animal, the state must go through the trouble of sellingoff or destroying it, and in the case of sale--which seems most likelyin the case of livestock--the state will forward any profits to theowner. (203) In effect, the law is encouraging animal owners to abandonthem at any time and in any place. In light of the costs thatabandonment imposes on animal welfare, as compared withabandonment's alternatives, the case for an abandonment-promotingregime is particularly weak in this setting.

It is hard to come up with any rational explanation for whyMississippi would embrace this regime--it most likely reflects poordrafting of a legal framework that was designed to minimize an abusiveor neglectful owner's resistance to state intervention. Extendingthat regime to cover animal abandonment may have been an instance ofcognitive dissonance by legislators. In any event, the unusual law aswritten appears to have generated little controversy and has goneunnoticed in the legal scholarship. (204)

III. A PROPOSAL FOR RATIONALIZING THE LAW OF ABANDONMENT

Having reviewed the motivations for abandonment, the differenttypes of property that might be abandoned, and the existing legalregimes governing abandonment in the United States, it is appropriate toask how, if at all, the law might be improved. In light of the socialbenefits associated with abandonment and its utility to property owners,the law should strive to permit abandonment while mitigating theassociated negative externalities. Namely, the law should attempt tomitigate confusion costs, deterioration costs, and error costs, whilereducing disposal costs in the case of negative-value property andlawless-race costs in the case of positive-value property.

A. Negative-Market-Value Properly

Let us begin by recalling the different types of abandoned propertyand the bright-line rules that the law has created to govern theirabandonment. The abandonment of positive-subjective-value,negative-market-value goods is plainly undesirable, though it almostnever occurs. When such resources are abandoned, we can expect that noone will claim the abandoned property, which may cause it to bereclaimed by the owner if its subjective value has not deteriorated toomuch in the interim. The decision to abandon this type of property is amistake, one that arises because of the unilateral nature ofabandonment. If an owner were to propose a sale of such a resource,there would be no meeting of the minds as to a price. If the owner wereto offer the resource to someone as a gift, the intended recipient couldrefuse to accept it. Abandoning such property may deprive the owner ofthe opportunity to get feedback from the market about theresource's valuation, and it is that lack of information thatcauses the owner to make a transfer that leaves everyone worse off.

With respect to positive-subjective-value, negative-market-valueresources, then, there are two plausible legal approaches. First, thelaw might prohibit abandonment altogether. This is a sensiblepaternalistic rule if it can be enforced at a low cost and if lawenforcers can readily determine which properties have positivesubjective value but are negative-market-value resources. Second, thelaw might require a means of abandonment that will expose the owner toinformation about market valuations. The best way to do this in the caseof chattels is to insist that the abandoning owner leave the chattelproperty at issue on a portion of her own real property adjoining apublic way. (205) If an owner sees that no one is taking the object inquestion, then she eventually will conclude that the market does notvalue the item as highly as she does, and she will reclaim it if it hasnot deteriorated. (206) Keeping the item on her own real property alsoprevents third parties from having to shoulder unwanted disposal costs,and it subjects the abandoning owner to any reputational sanctions ifthe item in question is regarded as an eyesore. Ordinarily, whenabandonment is proscribed or restricted, one should worry thatindividuals will destroy that which cannot be abandoned. But it isdifficult to imagine circ*mstances in which an owner would be motivatedto destroy positive-subjective-value, negative-market-value property.(207)

What of negative-subjective-value, negative-market-value resources?This category presents the strongest case for total prohibition. Byabandoning this type of property, the resource's owner imposes anegative externality on society. Assuming the property in question willnot biodegrade quickly or will be an eyesore after abandonment, the lawought to compel the prior owner to bear the disposal costs. In additionto forcing an owner to internalize disposal externalities, a prohibitionrule may promote the use of assets in sustainable ways, discourageaesthetic blight while an owner waits to see if anyone will claim theproperty, and encourage the development of a market for waste disposalfirms that will benefit from specialization and economies of scale.Setting aside contexts where society wants to encourage individuals toexplore taking ownership of risky resources that might have negativevalue, the best argument against a prohibitory rule will stem fromenforcement costs. Abandoning negative-subjective-value,negative-market-value resources will always be tempting for the owner,and a local government may find it more cost effective to create a defacto escheat rule than to monitor and punish surreptitious dumping onpublic property. A prohibition rule, then, forces the owner to choosebetween two options: (1) unlawful self help, or (2) a market transactionwhere the owner will pay for disposal.

Surveying the two categories of negative-market-value properties,then, we arrive at the conclusion that a prohibition regime works bestfor negative-subjective-value properties. For positive-subjective-valueproperties, prohibition and a safe-harbor rule permitting abandonment onone's own property appear to be the sensible alternatives. Intheory, one might try to adopt a fine-grained legal rule whose dictatesdiffer based on the subjective value of the property. In practice,however, a more complex doctrinal framework is unattractive because theact of abandonment suggests that property probably lacks subjectivevalue to its owner, and subjective valuations of abandoned property willcomprise private information that the state has a great deal ofdifficulty discovering. Assuming such a rule can be enforced withreasonable effectiveness, the law should prohibit the abandonment ofnegative-market-value resources. A rule of escheat, where the statetakes possession of negative-market-value resources at taxpayer expense,would be justified only where baseline levels of law-abiding behaviorare quite low or illegal dumping is particularly difficult to detect.

B. Positive-Market-Value Property

Positive-market-value properties present the most compelling casefor a permissive rule regarding abandonment. The thorny question iswhether the law should restrict abandonment so as to privilege otherforms of property transfer, such as sales or gifts. As the analysis inSection II.C demonstrated, in order for policymakers to make an optimaldecision about whether and when to permit the abandonment of a piece ofpositive-market-value property, they would need to know, at the veryleast, (1) the propensity of race participants to resort to illegal actsin order to capture that abandoned property, (2) the effects that themarginally increased prevalence of abandoned property would have on thepropensity for finders to help reunify lost and mislaid property withits owners, (3) the likely time lag before someone will claim abandonedproperty, (4) the decay rate of the property in question, and (5) themagnitude of the transaction costs, decision costs, entertainment value,and warm glow associated with hypothetical bilateral transfers of thesame property. To describe these as difficult empirical questions wouldbe a vast understatement. They can be answered only through educatedguesses. And whereas the property owner's revealed preferences mayexpose some otherwise private information concerning factors (4) and(5), factors (1), (2), and (3) represent externalities that will have nobearing on the abandoning owner's decisionmaking. What is a commonlaw court or an administrative agency in a licensing regime to do?

The sensible legal response is one that seeks to control most ofthe negative externalities associated with the abandonment ofpositive-market-value property by supplementing the information that isavailable to members of the public. This can be done by encouraging anabandoning owner to (1) physically mark abandoned property as"abandoned" and (2) advertise the availability of property onone of the many free Internet forums that have sprung up to alertconsumers to the availability of "free stuff." These measureswill reduce, but not eliminate, confusion and lag-time costs. (2085)Such behavior could be incentivized through tax policy, giving abandonedproperty of this sort some of the same tax advantages that propertydonated to charity presently receives. Alternatively, the law mightregard property abandonment that does not comport with steps one and twoas a misdemeanor, akin to littering, or it might enforce lawsprohibiting the destruction of property in those cases. Owners wishingto rid them selves of property would still find that abandonmentrepresents the lowest-transaction-cost option for doing so, especiallyif destruction is taken off the table.

Permitting abandonment, provided that adequate publicity is givento the abandoned property, will mitigate all the negative externalitiesassociated with abandonment save one: lawless-race costs. If there isreason to believe that lawless races are likely and will engender largesocial costs when they do occur, requiring that abandonment bepublicized will entail more races, with more participants, resulting inmore lawlessness. So what is the evidence on that score? No one keepsaccurate statistics on the question of lawless races, so one needs toturn to data on behavior that may function as a proxy for propensity toengage in lawless races. Here, the data suggest that compared to therest of the world, the United States has relatively high rates ofproperty crimes, (209) though a slightly lower rate than, say, Canada.(210) Of course, scholars working on serious studies of cross-nationalcrime statistics warn against relying on crime-report data, because themethodologies for reporting and collecting such data vary so much acrossnations. (211) In short, Americans might have a relatively highpropensity to engage in lawless races, but it is unlikely that thesocial costs from marginally more races would trump the reduction in lagtime, decay costs, confusion costs, and the greater warm glow associatedwith higher rates of utilization of abandoned property.

What can be done about lawless races? Even if lawless races wouldbe frequent and costly in a legal regime that publicized abandonment,those costs could be mitigated through legal doctrine. Perhaps thatsentiment forms the basis for a sensible defense of escheat regimes inabandonment law. By permitting abandonment but criminalizing claims toabandoned property, the state mitigates the incentive to race, at leastin theory. Once we account for the agency problems inherent ingovernment management of common resources and the temptation for privateactors to abscond with abandoned property before the state discovers itsentitlement, however, the violent-race-reducing benefits of escheatlikely dissipate.

Property law offers a better avenue for curtailing lawless races.The law might both require publicity via Craigslist, or one of the otherinformation clearinghouses that have emerged, and provide that the firstperson who puts in an online claim receive a time-limited window duringwhich only she could lawfully take possession of the abandoned asset.Put another way, after I announced that I was abandoning a dining roomset, the first person to note in a linked follow-up posting onCraigslist that she was putting in a claim would get an exclusivetwo-hour window to take possession. If she failed to take possessionwithin that time frame, the dining room set would be up for grabs onceagain. (212) It is easy to imagine such a legal rule working in concertwith social norms whereby people claim "dibs" on up-for-grabsresources. Where substantive law tracks internalized norms, widespreadcompliance will occur, even if the state devotes few resources toenforcing the law. (213) In settings where the use of Craigslist isimpractical, with the Popov v. Hayashi home run ball dispute being theparadigmatic case, such a rule would give the first chance to catch theball without interference to the fan in the best position to catch it.That would have been Alex Popov on the facts of the case. (214) Thisproposed rule echoes the "reasonable prospect ... of taking"the fox rule articulated by Judge Livingston in the canonical case ofPierson v. Post. (215) Although a regime privileging the first would-beclaimants online or offline would slightly increase lag-time costs, itwould substantially curtail lawless races, so such a doctrinal tweakwould make sense in high-violence environments.

Alternatively, criminal law or tort law could help deter ownersfrom abandoning property in ways that spark lawless races. Criminalliability for disturbance of the peace is one mechanism that lawenforcement might use in cases where lawless races occur. (216) Analternative approach would make abandoning owners liable if their act ofabandonment sparked a foreseeable lawless race that resulted in injuriesor littering qua looting. (217) Such a strategy represents a partialembrace of abandonment, permitting the practice but requiring alingering legal relationship between the abandoner and the abandonedresource. Any of these remedies, alone or in combination, ought toreduce the lawless-race costs associated with the abandonment ofhigh-value property.

In underscoring the attractiveness of an abandonment doctrine thathinges on the market value of the property rather than its character asreal property or chattel, a final consideration emerges: problems ofproof. What if courts and other government bodies charged with enforcingthe law are particularly bad at differentiating between positive- andnegative-value property? In that case, it might make sense to prohibitabandonment generally, reasoning that positive-market-value propertiesare likely to be transferable via gift or sale and negative-market-valueproperties are not. At the end of the day, we will want to know howgreat these problems of proof are likely to be. They do not seem to beparticularly severe. In the case of real property, data on comparablesales is readily obtainable, as is data on liens encumbering theproperty. Where complexity arises, it will largely be because of thepresence of easem*nts on the property that diminish its value in waysthat may be difficult to monetize. In the chattel property context, weordinarily need not worry about easem*nts and other servitudes. (218)Unless chattel property is unique, calculating its market value--letalone determining whether that value is positive--should be a simplematter. In short, absent significant skepticism about the cognitivecapacities of courts and other judicial decision-makers, there is littlereason to think that the inefficiencies associated with a prohibition onall abandonment are justified.

C. Is Land Different?

Recall the common law's treatment of abandonment. Theabandonment of chattel property is generally permitted, (219) but theabandonment of corporeal interests in real property is flatlyprohibited. (220) The doctrine looks to the nature of the propertyrather than to its value. It is worth asking whether there is anythingabout land that justifies its disparate treatment.

Land differs from chattel property in three relevant respects: (a)it is immobile, (b) it cannot be destroyed, and (c) a sophisticatedrecording system is already in place for land throughout the UnitedStates. (221) Real property's immobility eliminates the possibilitythat such property will be lost or mislaid, a consequence that reducesthe significance of confusion costs in the policymaking calculus. Realproperty's indestructibility mitigates the damages associated withresource decay. (222) The presence of a recording system means thatthere already exists, and long has existed, a low-tech version ofCraigslist, which might function as an effective clearinghouse forinformation about abandoned real property, thereby reducing confusionand lag-time costs. Recall that German law permits land to be abandoned,provided that the abandoning owner records a notice of relinquishment atthe local land registry. (223) In short, the unique attributes of landsuggest that the problems created by abandonment are more significant inthe context of chattels than they are in the context of real property.On this reasoning, the rule regarding the abandonment of real propertyshould be at least as permissive as the rule regarding chattel property.

Alas, there are three complicating factors. First, if abandonedreal property has a higher propensity than abandoned chattel property tohave negative value, then the prohibitory common law rule might makemore sense. Such negative-value real property is unlikely to be claimedby well-informed third parties if abandoned, so permitting abandonmentwill not diminish the harms associated with lag time. Unfortunately,reliable data about the proportions of abandoned real and chattelproperty that have negative value is in short supply. One study suggeststhat ninety-eight percent of all properties that were foreclosed on byNew York City had negative value at the time of foreclosure, but thisdoes not tell us whether the same is true of abandoned properties at thetime of abandonment. (224) If the ninety-eight percent figure holds forabandoned real property and the figure is much lower for abandonedchattels, then a plausible argument for the common law rule exists.

Second, Eduardo Penalver has ingeniously suggested that the lawmight prohibit the abandonment of real property as a means of curtailingthe abandonment of chattels. (225) The intuition behind Penalver'sdescriptive argument is appealing: we have all come across vacant lotsthat are strewn with trash. But Penalver fails to address the fact thatnone of this land is abandoned, as abandonment of land is barred in thiscountry. Were the abandonment of positive-value real estate permitted,and were abandoning owners required to alert the public to theland's availability, then we would be surprised to see it gounclaimed for long. But as soon as it is claimed, we have an owner whowill be incentivized to keep it free of abandoned eyesores. After all, apotential claimant of the land is typically going to have much more atstake than someone who merely wants to abandon trash on the parcel. In arace between a potential claimant and a litterer, one should bet on thepotential claimant every time.

As a normative matter, it is unclear why the law should take theposition advocated by Penalver with respect to positive-value chattelproperty. As this Article suggests, abandonment of such resources oftenfacilitates their reuse or recycling by a high-value user. (226) In manyinstances, permitting the abandonment of positive-value resources iswelfare enhancing and freedom promoting. Since Penalver has arguedforcefully that property is laden with social obligations that shoulddefine property rights, (227) if he cannot refute the argument that theabandonment of positive-value resources makes society better off, heought to be arguing for the imposition of a duty on land owners to letthird parties abandon positive-value resources on their land.

Penalver goes further, suggesting that the right to abandon chattelproperty is "illusory." (228) Although I think this hypothesishas some merit as a formal matter, I do not agree with Penalver that itadvances our analysis. Penalver argues that the abandonment of chattelproperty is much harder than the common law suggests and that abandoningchattels on someone else's property without their consent isunlawful. (229) My response to Penalver's formal argument issomething along the lines of the answer given by the preacher when askeptical congregant asks whether she believes in baptism: "Believein it? Hell, I've seen it done!" While some successfulabandonment takes advantage of the state's inability to monitor allits public spaces effectively, so much of the abandonment we observe inthe real world is legal Someone abandons furniture on her front lawnadjoining a sidewalk, and a passerby temporarily enters her land toclaim it. People leave appliances in an alleyway or on a sidewalk ownedby a municipality or common-interest community, and a claimant grabs itbefore anyone else does. Someone abandons books in a student lounge,leaves a geocache in a state park, etc. The point is that in all ofthese contexts, the landowner in question, be it a private party or astate actor, permits the abandonment of positive-value chattel propertybecause the landowner believes that such abandonment is valuable to boththe prior owner and the subsequent claimant. In the case of acommon-interest community, letting people abandon property in thealleyway might prevent an owner from putting an item in the dumpster,thereby lowering a condominium association's waste-hauling fees.The Army Corps of Engineers and USDA Forest Service actually encouragegeocaching because it is a popular form of recreation that promotes thepublic's use of federal lands. (230) In short, most landownersimplicitly consent to the use of their land to facilitate abandonment,which reduces the significance of Penalver's trespass concerns. Tothe extent that the formalistic concerns still resonate, we might regardthe tolerance of chattel abandonment despite the presence of a contrarylegal rule as an instance of an efficient norm displacing an inefficientlegal rule. (231)

Third, we must consider the relationship between adverse possessionlaw and the law of abandonment. Like foreclosure, adverse possession mayfunction as a substitute for abandonment, though it is an awkward one.The primary conceptual difference between abandonment and adversepossession stems from adverse possession's requirement ofnonpermissiveness. If the owner has intentionally relinquished title,then the trespasser's presence on the land becomes permissive,precluding the possibility of adverse possession. (232) What thethwarted abandoner therefore must do is either incur the transaction anddecision costs associated with a sale or gift to a willing recipient, orengage in an elaborate kabuki performance with a faux adverse possessor,whereby the abandoner pretends that she objects to the"trespasser's" entry. Such scenarios are not merelyhypothetical; they are reflected in the case law. (233) This latterapproach will not be attractive to a real property owner, preciselybecause under adverse possession law it takes so long--typically six toten years--for title to transfer. (234) This lag creates a great deal ofuncertainty for the would-be-transferor, who may see a trespasser workthe land for five years, only to move elsewhere, likely requiring thewould-be-transferor to start from scratch.

Given that abandonment would be far more attractive than adversepossession to a land owner who wishes to lose her interest in land, whatcould possibly explain why the law might prohibit the abandonment ofland but permit its transfer via adverse possession? To put the pointeven more provocatively, we might ask why the law would favor consensualtransfers of land masquerading as nonconsensual transfers over genuinelyconsensual transfers of land. There is no satisfying answer to thisquestion. The conventional response would be that adverse possessionensures that someone who values the property is using it at all times.But this response is deprived of its force once we recognize that (1) arational trespasser will hesitate to improve the land any more than thelaw of adverse possession requires before title transfers at the end ofthe statute of limitations period, whereas a party that claims abandonedproperty will not hesitate to put property to its highest-value useimmediately; and (2) property doctrine can reduce the consequences oflag time by requiring that the owner advertise her act of abandonment.Indeed, the comparison between the very sensible law of chattelproperty--which makes transfer via adverse possession rather difficult(235) and transfer via abandonment easy--and the law of realproperty--where the reverse is true--is puzzling. (236) Path dependence,not economic logic, explains the doctrine. (237)

The first of these two points has significant doctrinalimplications worth emphasizing here. A bad-faith adverse possessor whoenters another's property knowing that it belongs to someone elseor indifferent as to the state of tide will not have an incentive to putthe property in her possession to its highest-value use until thestatute of limitations expires. The law does not require that the landbe put to its highest-value use but only that it be used in conformitywith ordinary uses for that neighborhood. (238) There often will besubstantial distance between those two standards, and the rational,knowing adverse possessor will not improve the land any more thannecessary to satisfy the "actual use" element. A good-faithadverse possessor, by contrast, will not hesitate to put the land to itshighest-value use, however, because she believes the property inquestion to be hers. The longer a jurisdiction'sstatute-of-limitations period for ejectment actions, the more severethis problem with bad-faith adverse possession becomes. (239) Good-faithadverse possession fares best from this perspective because there isneither a lag in ownership nor a diminished incentive to put theproperty to its highest-value use. Abandonment, however, may be superiorto bad-faith adverse possession on this score. And if we think that thesort of person who claims abandoned property is more likely to be asavvy, efficient user of land than a good-faith adverse possessor, thenit is arguable that abandonment is actually superior to both forms ofadverse possession from an efficiency perspective. In short, there maybe good reasons to continue permitting the bad-faith adverse possessionof real property, but it is nearly impossible to construct a set ofpremises under which bad-faith adverse possession of land should bepermitted while the abandonment of positive-value real estate isprohibited. Yet that is the situation in which American law findsitself.

Assuming that abandoned real property is not overwhelminglycharacterized by negative value and that courts have the institutionalcapacity to sort between valuable and valueless property, Pocono Springsand numerous similar common law cases prohibiting the abandonment ofreal property should be overruled. (240) With respect topositive-market-value property, the law should create a safe harborpermitting the abandonment of corporeal interests, requiring only thatthe owner record a notice of abandonment, so that all parties interestedin the land will learn of its availability. The successful claimant willthen record his interest in the land, informing third parties andgovernment taxing authorities of the title transfer. The burden ofdemonstrating that property has positive market value should fall on theabandoning owner in the case of any controversy, since that person canmost easily get it appraised. (241) With respect tonegative-market-value property, the same considerations relevant in thechattel context have enough force to warrant similar treatment for realand chattel property. An owner seeking to abandon land should be able todo so upon cleaning up or improving the property sufficiently to give itpositive market value. (242) An owner should not be forced to find aseller to take the property off her hands in order to be rid of it inlight of the substantial transaction costs associated with land sales.

CONCLUSION

There has not been much sustained attention given to the issue ofproperty abandonment. This lack of attention may explain the generallylackluster content of abandonment law. Though most abandoned propertyprobably has negative value, the abandonment of positive-value chatteland real property appears to be rather common. In such instances,abandonment may be an attractive means of relinquishing property thatminimizes an owner's transaction and decision costs. Abandonmentmay also serve other social objectives, such as facilitating generalizedaltruism, promoting desirable risk taking, enabling profit maximizationvia the sale of ancillary products, furthering individual autonomy, andencouraging the transfer of resources to higher-value users. Prohibitionrules, which assume that abandonment inevitably creates negativeexternalities, therefore usually miss the mark. More misguided still arelaws that take as a given the social costs that the abandonment ofpositive-value assets may engender--the waste and decay of unownedresources, confusion among third parties as to the state of rifle, andlawless races. These assumptions may have held true in a pre-Internetera, but they no longer make sense in a world where Craigslist andFreecycle are facilitating thousands of successful quasi-abandonmenttransactions every day. Where abandoned positive-market-value propertycan be identified clearly and potential claimants can be easily notifiedof its status, there is little reason to prohibit this ancient means oftransferring title.

(1) Chicago Free Stuff Classifieds--Craigslist,http://chicago.craigslist.org/zip/ (Aug. 14, 2008) (on file withauthor).

(2) See Posting to Chicago Free Stuff Classifieds--Craigslist,http://chicago.craigslist.org/chc/zip/795812089.html (Aug. 13, 2008) (onfile with author) (stating that a broken refrigerator was available inthe alley at "51st & Mobile").

(3) See Steven Kurutz, Not Buying It, N.Y. TIMES, June 21, 2007, atF1 (explaining the culture of "freegans," who live off ofconsumer waste to minimize their support of corporations and theirenvironmental impact).

(4) See id.

(5) David Streitfeld, Too Costly to Keep, Boats Become Castaways,N.Y. TIMES, Apr. 1, 2009, at A1.

(6) See, e.g., Laura Bauer, Trying to Halt the Population Slide:Towns Tout Free Land to Lure New Residents, KAN. CITY STAR, Jan. 29,2007, at A1, available at 2007 WLNR 1679726 (detailing the free-landprogram in Kansas); Kansas Free Land, http://www.kansasfreeland.com(last visited Nov. 15, 2009).

(7) Benjamin P. Scafidi et al., An Economic Analysis of HousingAbandonment, 7 J. HOUSING ECON. 287, 288 (1998).

(8) See, e.g., David J. Bederman & Brian D. Spielman, RefusingSalvage, 6 LOY. MAR. L.J. 31, 32 (2008); Ronald W. Polston, MineralOwnership Theory: Doctrine in Disarray, 70 N.D. L. REV. 541, 561-64(1994); Michael L. Stokes, Adverse Abandonment: Toward Allowing theStates to Condemn or Dispose of Unneeded Railroad Land, 31 TRANSP. L.J.69, 79-81 (2003).

(9) See, e.g., BARLOW BURKE ET AL., FUNDAMENTALS OF PROPERTY LAW18-24 (2d ed. 2004) (limiting its treatment of abandoned property toEads v. Brazelton, 22 Ark. 499 (1861), a case involving an abandonedshipwreck, Haslem v. Lockwood, 37 Conn. 500 (1871), a case involvingabandoned manure, and a few brief notes); JOHN E. CRIBBET ET AL.,PROPERTY: CASES AND MATERIALS 109-13 (9th ed. 2008) (providing, in fivepages, the most detailed treatment of the subject among leadingcasebooks, focusing mostly on the abandonment of chattels and includingEads); JESSE DUKEMINIER ET AL., PROPERTY 793-96 (6th ed. 2006)(including Pocono Springs Civic Ass'n, Inc. v. MacKenzie, 667 A.2d233 (Pa. Super. Ct. 1995), which concerned the abandonment of land, andfocusing on affirmative covenants' relationship to the abandonmentof real property); JOHN P. DWYER & PETER S. MENELL, PROPERTY LAW ANDPOLICY: A COMPARATIVE INSTITUTIONAL PERSPECTIVE (1998) (ignoring theabandonment of real property outside of the landlord-tenant context);PAUL GOLDSTEIN & BARTON H. THOMPSON, JR., PROPERTY LAW: OWNERSHIP,USE, AND CONSERVATION (2006) (ignoring the issue of abandonment); THOMASW. MERRILL & HENRY E. SMITH, PROPERTY: PRINCIPLES AND POLICIES518-23 (2007) (focusing on the abandonment of real property, andincluding the Pocono Springs case); JOSEPH WILLIAM SINGER, PROPERTY LAW:RULES, POLICIES, AND PRACTICES 92-96 (4th ed. 2006) (including Charrierv. Bell, 496 So. 2d 601 (La. Ct. App. 1986), a case involving the legaltreatment of buried Native American artifacts).

(10) An important recent exception is Eduardo M. Penalver, TheIllusory Right to Abandon (Cornell Law Sch. Legal Studies Research PaperSeries, Research Paper No. 09-015, 2009), available athttp://papers.ssrn.com/so13/papers.cfm?abstract_id=1428517.

(11) The clearest articulation of this point in the case law isfound in Bright v. Gineste, 284 P.2d 839 (Cal. Ct. App. 1955), in whichthe court stated that

 to constitute an abandonment in the strict legal sense there must be a parting with rifle that is unilateral, the owner must leave the property free to the acquisition of whoever wishes to claim it, and [be] indifferent as to what may become of it. A transfer of property from one person to another cannot be effected by abandonment, and abandonment cannot be made to a particular individual.

Id. at 842 (citation omitted).

(12) A zero-price sale is not abandonment under this definition. Azero-price sale of a resource requires that a purchaser agree to takepossession of the item before rifle is transferred. With abandonment,rifle is relinquished at the moment the prior possessor relinquishescontrol, regardless of the actions of any would-be recipient.

(13) These are the private benefits of abandonment, and suchprivate benefits will enhance social welfare. In isolated cases, theremay be disconnected social benefits from abandonment. For example,abandonment might signal a shift in underlying property values thathelps transition land to its most appropriate use, which in some casesmay be a commons. See Saul Levmore, Two Stones About the Evolution ofProperty Rights, 31 J. LEGAL STUD. $421, $425 (2002) (explaining howrampant crime may lead people to abandon a town's property to"open access").

(14) MERRILL & SMITH, supra note 9, at 522; cf. Douglas G.Baird, A World Without Bankruptcy, LAW & CONTEMP. PROBS., Spring1987, at 173, 190 (1987) (noting that a trustee's "abandonmentpower exists because some kinds of property are not worthkeeping").

(15) MERRILL & SMITH, supra note 9, at 522.

(16) The divergence between subjective value and market value is awell-established trope in the academic literature on the law of takingsand the question of just compensation. See, e.g., Lee Anne Fennell,Taking Eminent Domain Apart, 2004 MICH. ST. L. REV. 957, 962-65(analyzing the compensated and uncompensated value of land in an eminentdomain taking); Christopher Serkin, The Meaning of Value: Assessing JustCompensation for Regulatory Takings, 99 NW. U. L. REV. 677, 678 (2005)(questioning the accuracy of fair market valuation and its impact ontakings).

(17) See Scafidi et al., supra note 7, at 293, 297 (using data fromthe New York City Department of Finance to conclude that ninety-eightpercent of the studied abandoned properties had a lien-to-value ratio ofgreater than one). Although the authors refer to these units as"abandoned" property, id. at 293, most of the units describedin their paper are more accurately characterized as foreclosed. At nopoint is the real property placed up for grabs to a finder, as is thecase with legally abandoned property. See supra note 11 and accompanyingtext (discussing the definition of abandonment).

(18) The law typically imposes these costs on the polluter ifcollection from her is possible. See Baird, supra note 14, at 187-91(presenting cases in which states attempt to impose clean-up costs onpolluters that have filed for bankruptcy).

(19) See infra Section I.C.

(20) 42 U.S.C. [section][section] 9601-9675 (2006).

(21) Id. [section][section] 6901-6992k. On the relationship betweenCERCLA and RCRA, see, for example, J. Stanton Curry et al., TheTug-of-War Between RCRA and CERCLA at Contaminated Hazardous WasteFacilities, 23 ARIZ. ST. L.J. 359, 370-94 (1991).

(22) See, e.g., ALASKA STAT. [section] 46.06.080 (2008)(prohibiting littering but capping fines at $1000); CAL. PENAL CODE[section] 374.3 (West 2009) (distinguishing personal dumping fromcommercial dumping and imposing fines up to $10,000 for commercialdumping); TEX. HEALTH & SAFETY CODE ANN. [section] 365.012 (Vernon2008) (creating a carefully graded punishment regime dependent on theamount of waste dumped).

(23) Several years ago, a Washington, D.C. lawyer threw away aFedEx mailing slip, which provided his residential address, in a publictrash can and was fined thirty-five dollars for violating theDistrict's prohibition. Marc Fisher, When It Comes to Waste, D.C.Is Priceless, WASH. POST, May 24, 2004, at B1.

(24) CHANTAL HOWELL CAREY & BILL CAREY, MAKE MONEY IN ABANDONEDPROPER TIES: HOW TO IDENTIFY AND BUY VACANT PROPERTIES AND MAKE A HUGEPROFIT 15 (2006). Much of the Careys' advice seems as dubious asthe title of their book. They state that they have purchased multiplehigh-value properties that were in the process of being abandoned bytheir owners, but they provide no documentation. See id. at 7-12. Theiraccount should be taken with a fistful of salt. Nonetheless, scenarioslike the ones described by the Careys are reflected in the case law.See, e.g., Yourik v. Mallonee, 921 A.2d 869, 871-72 & n.1 (Md. Ct.Spec. App. 2007) (considering a quiet title action brought after a homewas purchased for a newlywed couple who then separated); Mickens v.Mickens, 385 P.2d 14, 15-16 (Wash. 1963) (evaluating a woman'sclaim for relief after her husband abandoned her home).

(25) See Joyce Wadler, The Tyranny of the Heirloom, N.Y. TIMES,June 26, 2008, at F1.

(26) See, e.g., In re Sipe's Estate, 422 A.2d 826, 828 (Pa.1980) ("The requirements for a gift are intent, delivery andacceptance in all cases.").

(27) This sentiment accurately describes the attitude of the authorand his spouse toward a fantastically unattractive wedding gift receivedfrom a distant relative.

(28) Popov v. Hayashi, No. 400545, 2002 WL 31833731, at *3 (Cal.Super. Ct. Dec. 18, 2002).

(29) See Douglas Martin, This Shot Going, Going, Gone for $3Million, N.Y. TIMES, Jan. 13, 1999, at D2.

(30) See Ira Berkow, 73rd Homerun Ball Sells for $450,000, N.Y.TIMES, June 26, 2003, at D4.

(31) See Monica Davey, Long-Suffering Cubs Fans Hope Blasted BallPuts End to Curse, N.Y. TIMES, Feb. 27, 2004, at A16.

(32) The modifier is included because at some ballparks, such asChicago's Wrigley Field or San Francisco's AT&T Park, homerun balls are hit out of the stadium with some regularity, landing onpublic streets outside Wrigley or public waterways outside AT&TPark. See Joe Capozzi, He's Written the Book on Snagging Baseballs,PALM BEACH POST, June 22, 2008, at 1A, available at 2008 WLNR 11793430(describing experienced ball chasers who catch baseballs that fly out ofAT&T Park or Wrigley Field).

(33) See Posting to Chicago Free Stuff Classifieds--Craigslist,http://chicago.craigslist.org/nwc/zip/795820052.html (Aug. 13, 2008) (onfile with author).

(34) See Bradley Gerrard, Town Cashes in as Hot Pennies Rain Downon a Money-Mad Crowd, EXPRESS & ECHO (Exeter, Eng.), July 23, 2008,at 3, available at 2008 WLNR 13754625.

(35) Id. In America in the 1960s, something similar happened to thefather of Vice President Joe Biden, causing him to quit a job. See DavidBrooks, Op-Ed., Hoping It's Biden, N.Y. TIMES, Aug. 22, 2008, atA19 ("Once, when Joe Sr. was working for a car dealership, theowner threw a Christmas party for the staff. Just as the dancing was tobegin, the owner scattered silver dollars on the floor and watched fromabove as the mechanics and salesmen scrambled about for them. Joe Sr.quit that job on the spot.").

(36) See Tom Knott, Blatche Following Pro Athlete Tradition, WASH.TIMES, June 6, 2008, at C1 (describing making it rain as a "rite[]of passage with professional athletes").

(37) Norm Clarke, Waxworks Visitor Casts Vote Early, LAS VEGAS REV.J., Nov. 12, 2006, at 4A, available at 2006 WLNR 19743500; Paul Hayward,A Fight for Survival?, DAILY MAIL (London),June 23, 2007, at 115,available at 2007 WLNR 11869796.

(38) See Dave Anderson, He's Here to Talk About the Past, N.Y.TIMES, June 8, 2008, (Sports) at 5.

(39) See Scott Ostler, Lopez Says No Feud with Murray--Seriously,S.F. CHRON., Feb. 6, 2008, at D1, available at 2008 WLNR 2221539.

(40) See Dick Weiss, 2 Tales Make for Great Final Four, N.Y. DAILYNEWS, Apr. 6, 2008, at 47, available at 2008 WLNR 6505221.

(41) See Malcolm Venable, The Beautiful People Overheard,VIRGINIAN-PILOT, Dec. 2, 2007, at E12, available at 2007 WLNR 23785053.

(42) James Allen, Thrown Bills Led to Ruckus at Game, TIMES UNION(Albany), Dec. 8, 2007, at C1, available at 2007 WLNR 24301128.

(43) Barbara Elwood Schlatter & Amy R. Hurd, Geocaching:21st-Century Hide-and-Seek, 76J. PHYSICAL EDUC., RECREATION & DANCE28, 28 (2005).

(44) Id.

(45) See Geocaching--The Official Global GPS Cache Hunt Site,http://www.geocaching.com (last visited Nov. 15, 2009).

(46) Deborah J. Chavez et al., The Social-Psychology of aTechnology Driven Outdoor Trend: Geocaching in the USA 1 (2003)(unpublished manuscript on file with author).

(47) Schlatter & Hurd, supra note 43, at 29.

(48) Chavez et al., supra note 46, at 3.

(49) Schlatter & Hurd, supra note 43, at 30.

(50) See Cacheopedia, http://cacheopedia.com/wiki/Trade_items (lastvisited Nov. 15, 2009) (explaining the trading etiquette forgeocachers).

(51) See Posting of Dr. Bunsen Honeydew to Groundspeak Forums,Geocaching Terms and Lingo,http://forums.groundspeak.com/GC/index.php?showtopic=48706 (June 30,2003).

(52) See Long Island Geocaching Organization, Geocaching Etiquette,http://www.ligeocaching.com/index.php?option=com_content&task=view&id=22& Itemid=1 (last visited Nov. 15, 2009).

(53) Chavez et al., supra note 46, at 7 tbl. 3.

(54) Id. at 10 tbl.4.

(55) See id. at 9 tbl.4 (illustrating that some geocachers aremotivated by spending time with family or others who enjoy the samethings they do).

(56) There are some parallels between geocaching and dedications ofvaluable copy righted works to the public domain. On the latter, see,for example, Severine Dusollier, The Master's Tools v. TheMaster's House: Creative Commons v. Copyright, 29 COLUM. J.L. &ARTS 271, 274 & n.9 (2006), and sources cited infra note 143. Inboth cases the valuable resource is being left up for public use, but,in the former case, the prior owner's expectation is that theresource will become another's private property, whereas in thelatter case no individual will be entitled to establish private propertyrights in the work. In recent years, organizations like Creative Commonshave arisen to facilitate the dedication of copyrighted works to thepublic domain. See, e.g., Creative Commons--Copyright-Only Dedication orPublic Domain Certification,http://creativecommons.org/licenses/publicdomain (last visited Nov. 15,2009) (providing language for a public domain license). Even the modellicenses that Creative Commons features most prominently on its website, however, fall short of a public domain dedication and provide forrestrictions requiring users to provide attribution to the creator,limiting commercial use of the work, or limiting the fight to createderivative works. See Licenses--Creative Commons,http://creativecommons.org/about/licenses (last visited Nov. 15, 2009)(explaining different licenses offered with a Creative Commons license).Many authors dedicating work to the public domain understandably wouldbristle at the idea that another person might take credit for creatingthe work in question or profit by distributing the dedicated work orderivative works.

(57) Perhaps deep-pocketed Garmin is concerned that seeding anumber of caches might expose the company to liability if geocachers areinjured or trespass while searching for the treasure.

(58) See infra text accompanying notes 77-128.

(59) J.E. PENNER, THE IDEA OF PROPERTY IN LAW 79 (1997).

(60) Property typically does not find its way into an owner'shands by accident. Rather, the owner's earlier decisions topurchase, produce, or take possession of property result in itsacquisition. Penner's autonomy interest might then appropriately becast as a measure to protect the autonomy of individuals against theeconomic consequences of decisions made by their earlier selves. Seegenerally DEREK PARFIT, REASONS AND PERSONS 117-91 (1984) (exploring theimplications of such a philosophical framework). In that sense, theabandonment of negative-value property is a kindred spirit to bankruptcyor some information-privacy protections.

(61) See Lior Jacob Strahilevitz, The Right to Destroy, 114 YALEL.J. 781, 794-96 (2005) (discussing the right to destroy'simportance as the most extreme right in the property bundle).

(62) PENNER, supra note 59, at 79-80.

(63) See Popovv. Hayashi, No. 400545, 2002 WL 31833731, at *3 (Cal.Super. Ct. Dec. 18, 2002) (noting that an intentionally abandonedbaseball became the property of the first possessor).

(64) See, e.g., Ganter v. Kapiloff, 516 A.2d 611, 614 (Md. Ct.Spec. App. 1986); Armory v. Delamirie, (1722) 93 Eng. Rep. 664, 664(K.B.).

(65) See, e.g., McAvoy v. Medina, 93 Mass. (11 Allen) 548, 549(1866) (noting "a distinction between the case of property ...placed by the owner and neglected to be removed, and propertylost").

(66) 22 Ark. 499, 505-16 (1861).

(67) 37 Conn. 500, 505-07 (1871).

(68) 860 S.W.2d 403, 408 (Tenn. Ct. App. 1993).

(69) 990 P.2d 776, 780 (Mont. 1999).

(70) 423 N.W.2d 266, 269 (Mich. Ct. App. 1988).

(71) See Jonathan Mark, A Purloined Letter in 'God'sMailbox,' N.Y. JEWISH WK., Aug. 1, 2008, at 3, available at 2008WLNR 15878385.

(72) See Briglia v. Mondrian Mortgage Corp., 698 A.2d 28, 30-31(N.J. Super. Ct. App. Div. 1997) (denying plaintiffs claim arising froma fall on the icy sidewalk in front of an abandoned home); Scafidi etal., supra note 7, at 288 (describing the negative effects of abandonedhousing); Note, A Nuisance Law Approach to the Problem of HousingAbandonment, 85 Yale L.J. 1130, 1132-33 (1976) (recording the"negative externalities" such as crime, vandalism, and firedanger imposed by an abandoned building). Note, however, that all ofthose problems also have been documented in the foreclosure context,where a home is not abandoned but is in the process of being transferredby a mortgagor to a mortgagee. Even if a homeowner undergoingforeclosure is occupying the premises, her incentive to maintain itappropriately will be substantially diminished because of the risk thatthe benefits of that maintenance will be captured by the lender.

(73) See Popov v. Hayashi, No. 400545, 2002 WL 31833731, at *6(Cal. Super. Ct. Dec. 18, 2002); supra text accompanying note 38. In thePopov case, where the baseball in question was valuable enough to beclaimed by someone in short order and was likely going to be found in afinite space, there was no need to have twenty thousand fans in positionto track down the ball. This may imply inefficiently high levels ofentry into the race. A few dozen spectators could have covered theoutfield bleachers and McCovey Cove adequately while still ensuring thatthe ball in question would be located. (This sets aside the considerableentertainment value associated with having a chance to take possessionof the ball.) In the case of other valuable abandoned property whoselocation is harder to pinpoint, such as most ancient shipwrecks, theoptimal number of finders is less certain.

(74) Kara Platoni, What's Killing Bulky Trash Day? The PopularNeighborhood Event--Lifeblood of Nonprofits, Artists, and Scavengers--Ison Its Way to the Rubbish Heap, EAST BAY EXPRESS (Oakland), June 30,2004, available at http://www.eastbayexpress.com/news/what_s_killing__bulky_trash_day_/ Content?oid=287432. Platoni describes these lawless-racecosts in detail:

 When residents leave out donations in opaque garbage bags, the scavengers will rip them open to see what's inside and toss the contents everywhere. And Ryan gets stuck with the cleanup. The scavengers, he says, "take most of the good stuff and leave a big old mess." This, it turns out, is the main reason local governments no longer love bulky trash day, and why so many have decided to get rid of it. In past years, most cities in Alameda County cities [sic] hosted these neighborhood spring cleanings, and several had programs like Ryan's that gave the nonprofits first dibs. Now Ryan's Contra Costa reuse program is the last of its kind in the East Bay, and Orinda is one of just a handful of local cities that still does neighborhoodwide pickups. The pro scavengers simply got so good at the game that they would routinely beat the nonprofits to the punch. Sanitation workers, meanwhile, were tired of dealing with the mess, and homeowners were getting creeped out by the strangers sifting through their belongings. So this spring, Berkeley, Oakland, El Cerrito, and Livermore all quietly nixed their bulky trash days in favor of appointment-only systems in which residents must call the city for a pickup. Alameda, Hayward, San Leandro, and Richmond already made this switch in recent years. The cities hope that the scavengers, no longer knowing when and where lucrative piles will appear, will simply give up.

Id.

(75) See infra text accompanying notes 188-91.

(76) See supra text accompanying note 25.

(77) See, e.g., Campbell v. Cochran, 416 A.2d 211, 221 (Del. Super.Ct. 1980) (defining abandoned property as "that to which the ownerhas voluntarily relinquished all right, rifle, claim and possession,with the intention of terminating his ownership, but without vestingownership in any other person, and with the intention of not reclaimingany future rights therein"); Griffis v. Davidson County Metro.Gov't, 164 S.W.3d 267, 272 (Tenn. 2005) ("[A] complainant ...must show both intent to abandon for the stated limitations and someexternal act or omission by which the intent to abandon iseffectuated.").

(78) See Haslem v. Lockwood, 37 Conn. 500, 506-07 (1871).

(79) At least one court has imposed a public-place test as part ofits definition of property abandonment for the purposes of the FourthAmendment. See State v. Reed, 641 S.E.2d 320, 323 (N.C. Ct. App. 2007)("[F]or abandonment to occur, the discarding of property must occurin a public place; one simply cannot abandon property within thecurtilage of one's own home.").

(80) See Hawkins v. Mahoney, 990 P.2d 776, 779 (Mont. 1999).

(81) See, e.g., Martin v. Cassidy, 307 P.2d 981, 984 (Cal. Dist.Ct. App. 1957) (holding that the abandoning owner must be "entirelyindifferent as to what may become of [the property] or as to who maythereafter possess it" (internal quotation marks omitted)); Millerv. Dallas County, 158 S.W.2d 828, 837 (Tex. Civ. App. 1941) (Bond, C.J.,dissenting) ("Abandonment, accordingly, is the relinquishment of aright, a total desertion, the giving up to no one in particular ofsomething to which one is entitled."), rev'd, 166 S.W.2d 922(Tex. Comm'n App. 1942); see also Cutone v. Cutone, 285 S.E.2d 905,909 (W. Va. 1982) (holding that a widow does not abandon her right toquarantine-the right to occupy the family residence during the periodbetween a husband's death and the assignment of dower--unless she"has demonstrated an apparent indifference to what would become ofthe property").

(82) It is possible to design a future interest in property in sucha way as to approximate abandonment. For example, "I leave my Rolexwatch to the first person who stumbles upon it after it is deposited bymy executor in a hidden location in Central Park in January of2009."

(83) See Bright v. Gineste, 284 P.2d 839, 842-43 (Cal. Ct. App.1955) (distinguishing abandonment from relinquishment or surrender onthe basis that abandonment must be unilateral).

(84) See supra note 17 and accompanying text.

(85) The same analysis applies to widely publicized recent cases of'Jingle mail," in which a homeowner with a property whosevalue is exceeded by the outstanding balance of a mortgage mails thekeys to the mortgage lender and voluntarily moves out. See Vikas Bajaj,Mortgage Holders Find It Hard to Walk Away from Their Homes, N.Y. TIMES,May 10, 2008, at C1 (explaining the practice of 'Jinglemailing"). Colloquially, the homeowner's actions amount toabandonment. Legally, they are forfeiture. For further discussion, seeinfra text accompanying notes 130-31.

(86) 11 U.S.C. [section] 554 (2006); see also Jack F. Williams, TheTax Consequences of Abandonment Under the Bankruptcy Code, 67 TEMP. L.REV. 13, 28-29 (1994) (stating that in bankruptcy law, property istransferred only to those holding a possessory interest in theproperty).

(87) There are important exceptions, where a seller cares a greatdeal about the identity of a subsequent purchaser. See, e.g., Lior JacobStrahilevitz, Exclusionary Amenities in Residential Communities, 92 VA.L. REV. 437, 444-52 (2006) (analyzing exclusivity premiums in raciallyhom*ogenous neighborhoods and Manhattan cooperative apartments); LiorJacob Strahilevitz, Information Asymmetries and the Rights to Exclude,104 MICH. L. REV. 1835, 1851-59, 1894-97 (2006) (examining situations inwhich a real estate developer might try to exclude particular homeownersdespite their willingness to pay the market price for units in thedevelopment). Franchise sales are another classic case where one wouldnot expect to see seller indifference, given the substantial networkeffects and reputational spillovers.

(88) Cf. Arthur C. Brooks, Does Social Capital Make You Generous?,86 SOC. SCI. Q. 1, 2-4, 9-12 (2005) (discussing the association betweensocial capital and charitable giving); Bruce Rankin, How Low-IncomeWomen Find Jobs and Its Effects on Earnings, 30 WORK & OCCUPATIONS281, 283-85 (2003) (explaining the stratification of low-incomeworkers' social networks and how their lack of network ties tohigh-income workers may constrain their employment prospects).

(89) The first assumption seems plausible and the second probable.Affluent Americans are less likely to bring abandoned property intotheir residences or workplaces because they are better able to purchasea newer substitute in better condition and may be more sensitive to thestigma that can be associated with claiming abandoned property in poorcondition. Indeed, this assumption helps solidify the status offreeganism as a countercultural movement. See Kurutz, supra note 3, atF1.

(90) For a characteristically clear and rich analysis ofrandomization's variables, see Adam M. Samaha, Randomization inAdjudication, 51 WM. & MARY L. REV. 1, 8-17 (2009).

(91) An able-bodied rural scavenger on a Vespa stands a betterchance of claiming an abandoned resource than a bedridden childsuffering from the chicken pox in Brooklyn.

(92) See supra text accompanying note 51. In this sense, geocachingresembles a reciprocal charitable enterprise like a blood bank. Here, itis abandonment's unilateral transfer element, rather than itsrandomization attribute, that distinguishes the cases.

(93) See generally James Andreoni, Impure Altruism and Donations toPublic Goods." A Theory of Warm-Glow Giving, 100 ECON. J. 464(1990) (explaining that charitable acts are influenced by the utilitythat is gained by such behavior).

(94) The law probably would characterize such a transaction as agift, not abandonment. If someone steals the property from theowner's home after an advertisem*nt has been posted on Craigslistbut before anyone has shown up to claim it, the homeowner might have acause of action for conversion. See infra text accompanying notes145-53. That is not true for property left in the alleyway. See Schmidtv. Stearman, 253 S.W.3d 35, 42 (Ark. Ct. App. 2007). On the other hand,if a claimant showed up to claim the property abandoned on Craigslistand the owner who posted the advertisem*nt refused to surrender it, thewould-be claimant might pursue a legal claim under an abandonment theoryor equitable estoppel. Cf. Helms v. Vaughn, 467 S.W.2d 399, 401 (Ark.1971) (noting that, in order to divest oneself of property in the realproperty context, "circ*mstances of estoppel" must accompanyabandonment in the absence of a "legal deed of conveyance");Fencl v. City of Harpers Ferry, 620 N.W.2d 808, 817 (Iowa 2000) (findingthat a plaintiff, having established abandonment, could rightfully claimequitable estoppel).

(95) See Posting to Chicago Free Stuff Classifieds--Craigslist,http://chicago.craigslist.org/sox/zip/795845097.html (Aug. 13, 2008) (onfile with author).

(96) See Exodus 2:3 (recounting how Jochebed "took for him anark of bulrushes, and daubed it with slime and with pitch, and put thechild therein; and she laid it in the flags by the river'sbrink").

(97) JOHN BOSWELL, THE KINDNESS OF STRANGERS: THE ABANDONMENT OFCHILD KEN IN WESTERN EUROPE FROM LATE ANTIQUITY TO THE RENAISSANCE 15-16(1988) (footnotes omitted).

(98) Id. at 24.

(99) See id. at 429-33. Because of the stigma associated withinfertility, couples often were reluctant to advertise their willingnessto adopt unwanted infants. Upon finding an abandoned child or beingbrought one discreetly, the childless couple often pretended the infantwas its own offspring. Abandonment in a public place was in some cases arational strategy for poor parents hoping to improve the lot of theiroffspring in the Middle Ages. Id.

(100) Id. at 433.

(101) LEO DAMROSCH, JEAN-JACQUES ROUSSEAU: RESTLESS GENIUS 191(2005).

(102) See id. at 193-95 ("In a letter to Mme de Francueil hegave not just one explanation but several ... in what a psychoanalystwould call a case of overdetermination.").

(103) Id. at 193.

(104) Id.

(105) See supra text accompanying notes 61-62.

(106) DAMROSCH, supra note 101, at 193.

(107) Id. at 193-94. There was, of course, a possibility that theinfants would be placed with well-off families, but Rousseau wasaccurately gauging the odds.

(108) Id. at 192.

(109) See JULIE MILLER, ABANDONED: FOUNDLINGS IN NINETEENTH-CENTURYNEW YORK CITY 226-27 (2008) (noting that during the early 1880s, anaverage of 2041 infants per year were left or born at one of fourfoundling hospitals in New York City); Elisabetta Povoledo, Updating anOld Way to Leave the Baby on the Doorstep, N.Y. TIMES, Feb. 28, 2007, atA4 (discussing the introduction of high-tech foundling wheels inEurope). Consider also American laws that provide parents with theopportunity to abandon babies at fire stations and other designatedplaces without fear of criminal liability. See Lee Anne Fennell,Adjusting Alienability, 122 HARV. L. REV. 1403, 1458 & n.253(providing an example of a law that allows parents to abandon theirbabies in designated places); Cynthia Dailard, The Drive to Enact'Infant Abandonment' Laws A Rush to Judgment?, GUTTMACHER PEP.ON PUB. POL'Y, Aug. 2000, at 1 (describing state laws that immunizeparents against criminal liability when they leave babies withauthorized personnel); Erik Eckholm, Law's Effect: An Iowa Girl IsAbandoned in Nebraska, N.Y. TIMES, Oct. 9, 2008, at A21 (noting thatNebraska's safe-haven law applied to all children up to agenineteen). These laws for the most part have not been terriblyefficacious. See Dailard, supra, at 2 ("'In the case of publicabandonment [sic], the women are often not mature enough to thoughtfullyweigh their options or the consequences of their actions'....[S]ince the Texas law took effect, 12 infants have been illegallyabandoned--and not one was turned in under the terms of the law.").An exception was Nebraska's short-lived abandonment statute, which,due to poor drafting, permitted parents to abandon any child undernineteen at hospitals with impunity. Eckholm, supra, Three dozenchildren, including many teenagers from out of state, were abandoned inNebraska before the legislature modified the law to apply only toinfants. See California Teen Is Last to Be Abandoned Under Law, L.A.TIMES, Nov. 23, 2008, at A28 (noting that the Nebraska safe-haven lawwas revised to limit abandonment to infants); Nicholas Riccardi, StateRevamps Haven Law, L.A. TIMES, Nov. 22, 2008, at A10 (discussing theteenagers who were abandoned under Nebraska's safe-haven law).

(110) MILLER, supra note 109, at 237-38.

(111) BOSWELL, supra note 97, at 16.

(112) See Marianne Berry et al., The Role of Open Adoption in theAdjustment of Adopted Children and Their Families, 20 CHILD. & YOUTHSERVS. REV. 151, 151-52 (1998).

(113) Phyllis R. Silverman et al., Reunions Between Adoptees andBirth Parents: The Birth Parents' Experience, SOC. WORK, Nov.-Dec.1988, at 523, 523, 527. The same was true for Rousseau, who triedunsuccessfully to discover the whereabouts of his first abandoned childten years after the fact. See DAMROSCH, supra note 101, at 191-92.

(114) See Adrienne D. Kraft et al., Some Theoretical Considerationson Confidential Adoptions, Part I: The Birth Mother, 2 CHILD &ADOLESCENT SOC. WORK 13, 18 (1985) (suggesting that adolescent birthmothers in particular may find a relationship with the child andadoptive parents too complex).

(115) There will occasionally be horrific contemporarycirc*mstances in which a newborn is abandoned in a dumpster, publicrestroom, or other public place-abandonment resulting in death orkilling of a newborn occurs approximately 85 times per year in theUnited States. See Marcia E. Herman-Giddens et al., Newborns Killed orLeft to Die by a Parent: A Population Based Study, 289 J. AM. MED.ASS'N 1425, 1427 (2003) (examining the incidence of newborn infantsabandoned or killed, using North Carolina as the sample). In thecontemporary context, these instances often do not approximate trueabandonment. A newborn is sufficiently fragile that being left alone forany significant amount of time may result in its death, so these actsseem more akin to attempted murder or manslaughter. See id. at 1427(discussing cases in which abandonment resulted in murder ormanslaughter charges). Moreover, such babies are not deemed "up forgrabs" by either the law or social norms. Birth parents presumablyrecognize that the finder will almost certainly notify law enforcementupon finding that baby.

(116) See Mary E. Cedarblade, Dual Representation of Adoptive andBirth Parents: Conflict of Interest or Ethical Expedience?, 4 LEGALMALPRACTICE REP., 1993, at 12, 12-13 (1993).

(117) Cf. Elsbeth Nell, The Reasons Why Young Children Are Placedfor Adoption: Findings from a Recently Placed Sample and a Discussion ofImplications for Subsequent Identity Development, 5 CHILD & FAM.SOC. WORK 303, 312 (2000) (discussing possible motivations for choosingadoption).

(118) See Antonia J.Z. Henderson et al., The Living AnonymousKidney Donor: Lunatic or Saint?, 3 AM. J. TRANSPLANTATION 203, 203(2003) ("In the last two years, 31 anonymous donations ... out of atotal of 11672 living donations ... were performed in the US...."(citations omitted)); Daniel Akst, Taste: The Kindness of Strangers,WALL ST. J., July 25, 2008, at W11 (describing one of the 534 Americanssince 1984 who has "given a kidney away without a recipient inmind").

Interestingly enough, the donor profiled by Akst, a securitiestrader named Anthony DeGiulio who wanted his kidney to go to a stranger,was someone the journalist "met in the spring of 2006 when headvertised some free mulch on Craigslist.... Subsequently, afterclearing some land, he gave away thousands of dollars of firewood to allcomers." Id. Perhaps the lists of Craigslist abandoners and kidneyabandoners overlap significantly.

(119) see Bernard S. Kaplan & Karen Polise, In Defense ofAltruistic Kidney Donation by Strangers, 14 J. PEDIATRIC NEPHROLOGY 518(2000) (discussing some of the reasons why transplant centers will notaccept anonymous organ donations). Evidently, these policies are basedon a refusal to believe that such donations are genuinely altruistic. Ofcourse, there is reason to be concerned that many directed kidneydonations within families are coercive, but these donations tend not tobe closely scrutinized. See N. Scheper-Hughes, The Tyranny of the Gift:Sacrificial Violence in Living Donor Transplants, 7 AM. J.TRANSPLANTATION 507, 507-09 (2007) (suggesting that social and familialpressures are often responsible for directed donations within families).

(120) Cheryl L. Jacobs et al., Twenty-Two Nondirected KidneyDonors: An Update on a Single Center's Experience, 4 AM. J.TRANSPLANTATION 1110, 1114 (2004).

(121) See Galen E. Switzer et al., Understanding Donors'Motivations: A Study of Unrelated Bone Marrow Donors, 45 SOC. SCI. MED.137, 139 (1997).

(122) See Roberta G. Simmons et al., The Self-Image of UnrelatedBone Marrow Donors, 34 J. HEALTH & SOC. BEHAV. 285, 288 (1993)(noting that 965 people donated bone marrow to a stranger through theNational Marrow Donor Program between 1987 and 1991).

(123) See Theresa W. Gillespie & Christopher D. Hillyer, BloodDonors and Factors Impacting the Blood Donation Decision, 16 TRANSFUSIONMED. REVS. 115, 120 (2002) (noting that ten percent of blood donorssurveyed were giving blood "to cover their own potential needs inthe future" and that fifty percent were motivated by the potentialneed of a family member); Simone A. Glynn et al., Motivations to DonateBlood: Demographic Comparisons, 42 TRANSFUSION 216, 218-21 (2002)(reporting that most blood donors stated that they donated "becauseit was the right thing to do").

(124) Even a directed kidney donation reflects some randomization:someone had a bad kidney, someone else had a good kidney, and the donorand recipient happened to share a social or familial tie. Abandonment isinteresting, not because randomization does not exist elsewhere, butbecause it reflects a conscious choice to increase the prevalence ofrandomization in the system.

(125) For a discussion of the relationship between randomizationand decision costs in adjudication, see Samaha, supra note 90, at 30-34.A provocative discussion concerning randomization in criminalinvestigations and punishment appears in Bernard E. Harcourt,Post-Modern Meditations on Punishment: On the Limits of Reason and theVirtues of Randomization (A Polemic and Manifesto for the Twenty-FirstCentury), 74 SOC. RES. 307, 330-35 (2007).

(126) See generally David Lucking-Reiley et al., Pennies from eBay:The Determinants of Price in Online Auctions, 55 J. INDUS. ECON. 223,224-25 (2007) (discussing the mechanics of auctions on eBay).

(127) Id.

(128) See supra notes 25-27 and accompanying text.

(129) For an assessment of other consumer behavior changes inresponse to this fee structure, see Susan Stellin, Passengers Learn toLive with Airlines' Bag Fees, N.Y. TIMES, Dec. 23, 2008, at B1.

(130) See supra text accompanying notes 83-85.

(131) See supra text accompanying note 84-85.

(132) Sales and gifts, like destruction, avoid the costs that maybe associated with a lawless race. This explains the reference totransaction costs in the above sentence.

(133) See, e.g., Gruen v. Gruen, 496 N.E.2d 869, 872 (N.Y. 1986)(discussing the ambiguity in a famous gifts case); Newman v. Bost, 29S.E. 848, 848-49 (N.C. 1898) (same); Raffles v. Wichelhaus, (1864) 59Eng. Rep. 375 (Exch.) (addressing ambiguity in a famous contracts case).

(134) See, e.g., Poggi v. Scott, 139 P. 815, 816 (Cal. 1914)(holding that the owner of a building who sold barrels, which he in goodfaith thought to be empty and abandoned, was liable for conversion whenit turned out that the barrels were filled with two thousand dollarsworth of wine and had been stored pursuant to a contract with thebuilding's prior owner).

(135) Finders of lost and mislaid property do not become itsowners. Rather, they have duties to return the property to its trueowner, a prior possessor, or, in some cases, the owner of the land onwhich the property was found. Finders of abandoned property have no suchduty. See supra notes 63-65 and accompanying text.

(136) See Right Reason Publ'ns v. Silva, 691 N.E.2d 1347, 1351(Ind. Ct. App. 1998) (holding that student journals, once deposited indistribution stands, are abandoned and thus free for anyone to take).

(137) See Greenville Dairy Co. v. Pa. Milk Control Comm'n, 68Pa. D. & C. 597, 607-08 (Ct. Com. Pl. 1949) (holding that the givingaway of free milk samples is a permissible practice).

(138) Lanham Act [section] 45, 15 U.S.C. [section] 1127 (2006).

(139) Id. For a review of the law of trademark abandonment, seegenerally Christopher T. Micheletti, Preventing Loss of TrademarkRights: Quantitative and Qualitative Assessments of "Use" andTheir Impact on Abandonment Determinations, 94 TRADEMARKREP. 634 (2004).

(140) See Silverman v. CBS Inc., 870 F.2d 40, 45-47 (2d Cir. 1989)(holding that twenty-one years of nonuse of the Amos & Andytrademark amounts to abandonment of the mark, despite the trademarkholder's intent to resume use if "the social climate become[s]more hospitable").

(141) See Daphna Lewinsohn-Zamir, More Is Not Always Better thanLess: An Exploration in Property Law, 92 MINN. L. REV. 634, 657 (2008).

(142) See Dastar Corp. v. Twentieth Century Fox Film Corp., 539U.S. 23, 34 (2003) (holding that trademark law makes purchasingdecisions easier); Paul J. Heald & Suzanna Sherry, Implied Limits onthe Legislative Power: The Intellectual Property Clause as an AbsoluteConstraint on Congress, 2000 U. ILL. L. REV. 1119, 1163 (arguing thattrademark law "reduce[s] search costs and provide[s] incentives forthe production of high quality goods"). For a provocative argumentthat expands on this rationale for trademark protection, see Shahar J.Dilbary, Famous Trademarks and the Rational Basis for Protecting"Irrational Beliefs, "14 GEO. MASON L. REV. 605, 628-30(2007).

(143) See Nat'l Comics Publ'ns v. Fawcett Publ'ns,191 F.2d 594, 597-98 (2d Cir. 1951) (stating that an owner of acopyright abandons it if she allows the public to copy her work); DennisW.K. Khong, Orphan Works, Abandonware and the Missing Market forCopyrighted Goods, 15 INT'L. J.L. & INFO. TECH. 54, 62-63(2007) (discussing abandonment of software copyrights); Robert A.Kreiss, Abandoning Copyrights to Try to Cut Off Termination Rights, 58MO. L. REV. 85, 92-101 (1993) (noting abandonment as a valid defense tocopyright infringement); Lydia Pallas Loren, Building a ReliableSemicommons of Creative Works: Enforcement of Creative Commons Licensesand Limited Abandonment of Copyright, 14 GEO. MASON L. REV. 271, 319-20(2007) (recognizing the accepted notion that once a work is abandoned,it is no longer afforded copyright protection).

(144) See supra text accompanying notes 83-86.

(145) 705 N.E.2d 1022 (Ind. Ct. App. 1999).

(146) Id. at 1023.

(147) Id.

(148) Id. at 1025.

(149) Id. at 1023.

(150) Id. at 1025-27.

(151) See Ian Fisher, European Commission Sues to Force Italy toTake Out the Garbage, N.Y. TIMES, May 7, 2008, at A6 (describing thebacklog of trash piling up on the streets of Naples).

(152) Long is in some ways reminiscent of Fourth Amendment case lawdeciding whether a property owner retains a reasonable expectation ofprivacy in the contents of trash bags left at curbside. The answer isno, although the Supreme Court has arguably rejected the rationale thatputting trash at curbside entails property abandonment in favor of aview that the person depositing the trash perhaps retains a propertyinterest, but not a privacy interest, in the rubbish. See California v.Greenwood, 486 U.S. 35, 49-52 (1988) (Brennan, J., dissenting). But seeUnited States v. Scott, 975 F.2d 927, 929 n.1 (1st Cir. 1992) (rejectingthis reading of Greenwood).

(153) See Sharpe v. Turley, 191 S.W.3d 362, 368 (Tex. Ct. App.2006) (holding that leaving an item in a dumpster is not evidence thatit has been abandoned and is free for the taking).

(154) Such causes of action appear not to be actionable under thecommon law of invasion of privacy. See, e.g., Danai v. Canal SquareAssocs., 862 A.2d 395, 400-03 (D.C. 2004); Froelich v. Werbin, 548 P.2d482, 484 (Kan. 1976).

(155) See James C. Roberton, Abandonment of Mineral Rights, 21STAN. L. REV. 1227, 1228 n. 13 (1969) ("The civil law has longpermitted the abandonment of land, apparently without undesirableconsequences."). For a discussion of the Roman law approach to realproperty abandonment, see Randall Lesaffer, Argument from Roman Law inCurrent International Law: Occupation and Acquisitive Prescription, 16EUR. J. INT'L L. 25, 38-46 (2005).

(156) BURGERLICHES GESETZBUCH [BGB] [Civil Code] Aug. 18, 1896, asamended, [section] 928(1), translated in THE GERMAN CIVIL CODE: REVISEDEDITION 174 (Simon L. Goren trans., 1994).

(157) Id. at [section] 928(2).

(158) See supra notes 11-12 and accompanying text.

(159) Query whether the abandoning owner ought to be entitled to atax deduction if the asset has positive market value.

(160) See PRAWO CYWILNE [P.C.] [Civil Code] art. 179, [section] 1(Pol.), translated in THE POLISH CIVIL CODE 30 (Danuta Kierzkowska etal. eds., Olgierd A. Wojtasiewicz trans., 1997); Stanislawa Kalus &Magdalena Habdas, The Notion of Real Estate and Rights Pertaining to Itin Selected Legal Systems, in 3 MODERN STUDIES IN PROPERTY LAW 251, 263(Elizabeth Cooke ed., 2005) (stating that, in Poland, renunciation ofland ownership is permissible, with a local authority becoming the newowner).

(161) CODE CIVIL [C. CIV.] art. 713 (Fr.), translated inLegifrance, http://195.83.177.9/code/liste.phtml?lang=uk&c=22&r=382 (last visited Nov. 15, 2009).

(162) CODICE CIVILE [C.C.] art. 827 (Italy), translated in 3 THEITALIAN CIVIL CODE AND COMPLEMENTARY LEGISLATION 4 (Mario Beltramo etal. trans., 2007).

(163) CODIGO CIVIL [COD. CIV.] art. 2376, [paragraph] 1 (Arg.),translated in THE ARGENTINE CIVIL CODE 367 (Frank L. Joannini trans.,1917); CODIGO CIVIL [COD. CIV.] art. 590 (Chile); CODIGO CIVIL [CODCIV.] art. 605 (Ecuador).

(164) CODIGO CIVIL [C.C.] Jan. 1, 1917, arts. 589, [section] 2, 592(Braz.), translated in THE CIVIL CODE OF BRAZIL 131-32 (Joseph Whelesstrans., 1920). A new Brazilian code became effective on January 6, 2006,but it has not yet been translated into English. See CODIGO CIVIL ELEGISLACeAO CIVIL EM VIGOR (Theotonio Negrfio & Jose Roberto F.Gouvea eds., 2006).

(165) See, e.g., COD. CIV. art. 2559 (Arg.) ("The apprehensionof movable things having no owner, or abandoned by the owner, made by aperson capable of acquiring things with the intent of appropriatingthem, constitutes a title for the acquisition of the ownershipthereof."); COD. CIV. art. 606 (Chile); C.c. art. 923 (Italy)("Movable things that are not the property of anyone are acquiredby occupation." (citations omitted)).

(166) UNIF. UNCLAIMED PROP. ACT [section] 2(a) (1995).

(167) Id. [section] 3.

(168) Id. [section] 12(a).

(169) Id.

(170) Id. [section] 2.

(171) See ACS Unclaimed Property Clearinghouse,http://www.missingmoney.com/GeneralHelp/Help.cfm?Type=WhoWeAre (lastvisited Nov. 15, 2009).

(172) A similar rationale explains Japan's well-developedsystem of government lost-and-found centers. For a fascinatingexploration, see Mark D. West, Losers: Recovering Lost Property in Japanand the United States, 37 LAW & SOC'Y REV. 369 (2003).

(173) Ellen P. Aprill, Inadvertence and the Internal Revenue Code:Federal Tax Consequences of State Unclaimed Property Laws, 62 U. PITT.L. REV. 123, 125 n.9 (2000).

(174) See, e.g., Azure Ltd. v. I-Flow Corp., 77 Cal. Rptr. 3d 463,468 (Ct. App. 2008) (concluding that, in a system where the goal is toreunite people with their unclaimed property, it would be irrational toprovide immunity to a corporate issuer that mischaracterizes ashareholder's stock as escheated and fails to notify thatshareholder of the transfer of that stock to the state).

(175) 43 U.S.C. [section][section] 2101-2106 (2006).

(176) This is defined under as land extending into the ocean up tothree miles from shore. Id. [section] 1301(a)(2).

(177) Id. [section] 2105 (a)-(c); see also Roberto Iraola, TheAbandoned Shipwreck Act of 1987, 25 WHITTIER L. REV. 787, 790-92 (2004).

(178) Iraola, supra note 177, at 807-15.

(179) Id.

(180) See, e.g., Yukon Recovery, L.L.C. v. Certain AbandonedProperty, 205 F.3d 1189, 1192-93 (9th Cir. 2000) (affirming the award ofexclusive salvage rights to a recovery company that executed a salvagecontract with the insurance company that insured a sunken vessel).

(181) See, e.g., Christopher Z. Bordelon, Saving Salvage: AvoidingMisguided Changes to Salvage and Finds Law, 7 SAN DIEGO INT'L L.J.173, 194-99 (2005) (examining the aspects of the ASA that discouragesalvage activity); Paul Hallwood & Thomas J. Miceli, Murky Waters:The Law and Economics of Salvaging Historic Shipwrecks, 35 J. LEGALSTUD. 285, 285-86 (2006) (comparing the incentives to discovershipwrecks under traditional admiralty law and current U.S. law).

(182) See, e.g., Shelly R. McGill, Are Criticisms of the AbandonedShipwreck Act Anchored in Reality?, 29 ENVIRONS ENVTL. L. &POL'Y J. 105, 117-23 (2006) (analyzing the incentives and abilityof the states to encourage the discovery of abandoned shipwrecks).

(183) See, e.g., ALA. CODE [section][section] 13A-11-14,-240(LexisNexis 2005) (classifying abandonment of animals as cruel neglectand, as such, a misdemeanor); ARIZ. REV. STAT. ANN. [section] 13-2910(2001) (establishing intentional, knowing, or reckless abandonment of ananimal as a misdemeanor); ARK. CODE ANN. [section] 5-62-101 (2005)(requiring knowing abandonment); CAL. PENAL CODE [section]597.1(a) (West1999) (establishing animal abandonment as a misdemeanor); COLO. REV.STAT. [section] 18-9-202 (2008) (stating that intentional abandonment ofan animal is a misdemeanor).

(184) 667 A.2d 233, 235-36 (Pa. Super. Ct. 1995).

(185) Roberton, supra note 155, at 1228. Texas once was, and Idahoevidently remains, an exception. See Hawe v. Hawe, 406 P.2d 106, 113(Idaho 1965) (citing O'Brien v. Best, 194 P.2d 608 (Idaho 1948))(holding that one can abandon real property in Idaho, though notnoticing that O'Brien actually dealt with railway fights of way);Harris v. O'Connor, 185 S.W.2d 993, 1012 (Tex. Civ. App. 1944)(pointing out that real property could be abandoned in Texas, under theremaining Mexican civil law, prior to the 1840 adoption of the commonlaw in Texas).

(186) Because the abandonment of real property necessarily entailsindifference as to the identity of the subsequent owner, it is wrong torefer to the abandonment of an incorporeal hereditament. When such aninterest is "abandoned," the interest in question reverts tothe owner of the previously burdened estate. For example, if an oil andgas interest is abandoned, any deposits on the land come to be owned bythe fee simple owner. It is thus accurate to say that real propertycannot be abandoned under the common law. Forfeited yes, abandoned no.See supra note 11 and accompanying text.

(187) Roberton, supra note 155, at 1228 n.13 (citation omitted).

(188) See UMA LELE ET AL., WORLD BANK, BRAZIL FORESTS IN THEBALANCE: CHALLENGES OF CONSERVATION WITH DEVELOPMENT 19 (2000)(discussing the "nutrient mining" that has occurred in theAmazon forests as a result of government policies that encouragesettlement and economic activity to the detriment of forestpreservation); John Batt & David C. Short, The Jurisprudence of the1992 Rio Declaration on Environment and Development: A Law, Science, andPolicy Explication of Certain Aspects of the United Nations Conferenceon Environment and Development, 8 J. NAT. RESOURCES & ENVIL. L. 229,282 (1993) (demonstrating how Brazil's original settlement policieshave provided the incentive to "slash, burn, graze and moveon" with ninety percent of new cattle ranches operating less thaneight years before moving on (internal quotation marks omitted)).

(189) See supra text accompanying note 164; see also ANGUS WRIGHT& WENDY WOLFORD, TO INHERIT THE EARTH: THE LANDLESS MOVEMENT AND THESTRUGGLE FOR A NEW BRAZIL 271 (2003) ("[S]ome individuals have ...chosen or felt forced to abandon their land and settlement.").

(190) This was the rationale for the regulation of public lands inthe American West in the 1890s. See Robert B. Keiter, Public Lands andLaw Reform: Putting Theory, Policy, and Practice in Perspective, 2005UTAH L. REV. 1127, 1133.

(191) The example suggested in the text is oversimplified. InBrazil, it is evidently the case that some deforestation results fromsquatters clearing land in order to obtain informal property rights toit. See LELE ET AL., supra note 188, at 34; Andrea Cattaneo & Nu NuSan, The Forest for the Trees: The Effects of Macroeconomic Factors onDeforestation in Brazil and Indonesia, in SLASH-AND-BURN AGRICULTURE:THE SEARCH FOR ALTERNATIVES 170, 183-85, 192 (Cheryl A. Palm et al.eds., 2005).

(192) Cf. Anthony R. Chase &John Mixon, CERCLA: Convey to aPauper and Avoid Cost Recovery Under Section 107(a)(1)?, 33 ENVTL. L.293, 301-06 (2003) (discussing a series of cases in which the owner of acontaminated site may have tried to avoid liability for remediation andcleanup by conveying the land to a judgment-proof purchaser).

(193) In Brazil's Amazon region, both land-use regulations andproperty taxes are widely ignored by property owners and users. See LELEET AL., supra note 188, at 20-24, 30.

(194) For a similar argument in a very different employmentsetting, see Julie c. Suk, Discrimination at Will: Job SecurityProtections and Equal Employment Opportunity in Conflict, 60 STAN. L.REV. 73 (2007) (examining the ways that job-security protections canexacerbate racial inequalities in employment).

(195) See RLTD Ry. Corp. v. Surface Transp. Bd., 166 F.3d 808, 810(6th Cir. 1999).

(196) Id.

(197) Id.

(198) Chi. & Nw. Tramp. Co. v. Kalo Brick & Tile Co., 450U.S. 311,321 (1981) (internal quotation marks omitted) (quoting Purcellv. United States, 315 U.S. 381,384 (1942)).

(199) MISS. CODEANN. [section] 97-41-2 (West 1999).

(200) Id. [section] 97-41-2(2).

(201) Id. [section] 97-41-2(5).

(202) See supra note 183 and accompanying text.

(203) It is more common for the law to provide that the state mayclaim abandoned property and compensate its owner at fair market value.Such uses of eminent domain to condemn blighted property are relativelyuncontroversial under the Fifth Amendment. Similarly, the Italian CivilCode provides a clear statutory authorization for the use of eminentdomain:

 [W]hen the owner abandons the maintenance, cultivation or use of property that affects national production ... expropriation of the property by the administrative authorities can take place, subject to the payment of a just indemnity. The same provision applies if the deterioration of the property has the effect of seriously prejudicing the appearance of cities or considerations of art, history, or public health.

CODICE CMLE [C.C.] art. 838 (Italy), translated in THE ITALIANCIVIL CODE AND COMPLEMENTARY LEGISLATION, supra note 162.

(204) Westlaw's citing references to the statute includeseveral sources mentioning it in a string citation of stateanimal-cruelty laws, but there is no mention of its evidently uniqueanimal-abandonment provision.

(205) Of course this approach only works well for owners ofsingle-family homes---for condominium and apartment owners, not so much.

(206) See supra text accompanying note 80.

(207) Pets may again present an exceptional case. There are casesin which an individual contemplating imminent death seeks to destroy heranimals because of a concern that they will not be taken care ofadequately after her passing. See, e.g., Capers Estate, 34 Pa. D. &C.2d 121, 126 (Orphans' Ct. 1964); In re Wishart, [1992] 129N.B.R.2d 397, 404 (Can.).

(208) When a British price-comparison website hired representativesto stand on a street corner wearing signs saying, "If you ask mefor a 5 [pounds sterling] note you can have one," only twenty-eightout of 1800 passersby took them up on the offer. Posting of Stephen J.Dubner to N.Y. Times Freakonomics Blog, There's No Free Lunch, orMoney, http://freakonomics.blogs.nytimes.com/2008/07/29/theres-no-free-lunch-or-money (July 29, 2008) (internal quotation marksomitted). This failure to claim the money is probably explained byskepticism that the offer was bona fide.

(209) See Jan van Dijk & Kristiina Kangaspunta, PiecingTogether the Cross-National Crime Puzzle, NAT'L. INST. JUST. J.,Jan. 2000, at 35, 39.

(210) See Maire Gannon, Crime Comparisons Between Canada and theUnited States, JURISTAT, Dec. 18, 2001, at 1, 6-7, available athttp://www.statcan.gc.ca/pub/85-002-x/85-002-x2001011-eng.pdf.

(211) See Richard R. Bennett & P. Peter Basiotis, StructuralCorrelates of Juvenile Property Crime: A Cross-National, Time-SeriesAnalysis, 28 J. RES. CRIME & DELINQ. 262, 284 n.16 (1991).

(212) A colleague who has used Craigslist to transfer property atno cost points out that no-show claimants impose a substantial cost onthe would-be donor, who often must wait around for the claimant who haspromised to pick up the item. Ideally, the property owner would requirethe claimant to post a small bond to protect the owner against the costsof a no-show. An advantage of pure abandonment over quasi-abandonment isthat the abandoning owner can avoid these no-show costs. An associateddisadvantage is that true abandonment may discourage an item'shighest value user from trying to claim a valuable abandoned resourcebased on a fear that another claimant will take possession first. Thisanalysis suggests that in quasi-abandonment situations, where a would-beclaimant detrimentally relies on an owner's promise to hold an itemuntil the would-be claimant arrives, and the owner instead gives it toanother claimant, liability for detrimental reliance under an estoppeltheory would be appropriate. See supra note 94 and accompanying text.

This anecdote also suggests an important dimension of the right toabandon that gets only a little attention here. The choice among sales,gifts, and abandonment will engender a selection effect. The sort ofpeople who are likely to take possession of a surrendered resource maydepend on the mechanism the prior owner chooses for relinquishment. Insome settings, claimants of abandoned property may possess undesirableattributes--perhaps they take less care of real property and are worseneighbors than purchasers. But from other perspectives,abandonment's selection effects may be welfare maximizing. Forexample, claimants of abandoned property usually will be poorer thanpurchasers, and might be even less well off than recipients (to theextent that socially well-connected needy recipients are more likely tobenefit from charity). Abandonment therefore may function as aprogressive mechanism for voluntary wealth redistribution, given thedecreasing marginal utility of wealth. See supra note 89 andaccompanying text.

(213) See generally Lawrence Lessig, The Regulation of SocialMeaning, 62 U. CHI. L. REV. 943, 962-72 (1995) (providing examples ofinterventions that prompted changes in social norms).

(214) Popov v. Hayashi, No. 400545, 2002 WL 31833731, at * 1 (Cal.Super. Ct. Dec. 18, 2002). Popov's attempt to claim the abandonedproperty would then give him title to the ball once either (a) he tookcertain control of it, or (b) a third party's unlawful act impededhis ability to do so.

(215) 3 Cal. 175, 182 (N.Y. Sup. Ct. 1805) (Livingston, J,dissenting).

(216) See Allen, supra note 42, at el (reporting that police werecalled to break up a melee following an incident where a basketballspectator threw dollar bills in the air).

(217) See Platoni, supra note 74.

(218) See Molly Shaffer Van Houweling, The New Servitudes, 96 GEO.L.J. 885, 907-10 (2008) (describing the hostility of common law courtsto the enforceability of personal property servitudes).

(219) See supra text accompanying notes 145-50.

(220) See supra text accompanying note 184.

(221) See Douglas Baird & Thomas Jackson, Information,Uncertainty, and the Transfer of Property, 13 J. LEGAL STUD. 299, 308-10(1984) (noting the first and third of these attributes). Baird andJackson point out that some chattels, such as airplanes and automobiles,do have serial numbers that lend themselves to the creation of recordingsystems. Id. at 309-10.

(222) Note that this is true for land but not for buildings orother improvements. Note further that because chattel property isdestructible, the law conceivably could favor abandonment of chattelsover abandonment of real property based on a fear that, in the absenceof an abandonment option, owners of positive-value chattels will destroythe resource in question. I thank Jeremy Meisel for the latterobservation.

(223) See supra text accompanying note 156.

(224) Scafidi et al., supra note 7, at 293, 297.

(225) Penalver, supra note 10, at 22-28.

(226) See supra notes 89, 129, and accompanying text.

(227) See Eduardo Penalver, Land Virtues, 94 CORNELL L. REV. 821,860-84 (2009) (arguing that property laws should incentivize owners toact virtuously rather than selfishly).

(228) See Penalver, supra note 10, at 4 ("[T]he law concerningthe right to abandon ... reveals that the owner's right to abandonis largely illusory.").

(229) See id. at 16-17, 32 n.79 (arguing that abandonment ofchattels can only be accomplished by leaving them on one's ownland, which is more like an "open-ended gift" thanabandonment).

(230) See Memorandum from Michael B. White, Chief of Operations,Directorate of" Civil Works, U.S. Army Corps of Eng'rs to U.S.Army Crops of Eng'rs District Commanders (June 10, 2005), availableat http://corpslakes.usace.army.mil/employees/cecwon/pdfs/05jun16-geocache.pdf CGeocaching may be allowed on public lands managed by the U.S.Army Corps of Engineers in accordance with the Code of FederalRegulations Title 36 .... "); Georgia Geocachers Association, GACache Guidelines and Requirements,http://www.ggaonline.org/gadodont.html (last visited Nov. 15, 2009)("The US Army Corps of Engineers... has determined that geocachingis an appropriate and compatiable [sic] recreational use of Corps ofEngineers regulated property.").

(231) See generally ROBERT C. ELLICKSON, ORDER WITHOUT LAW: HOWNEIGHBORS SETTLE DISPUTES 141 (1991) ("Substantive norms oftensupplant substantive laws." (italics omitted)).

(232) See St. Louis Union Trust Co. v. Smith, 182 S.W.2d 945,946-47 (Ark. 1944) (holding that an abandoned parcel of land cannot beadversely possessed). The occasional sloppily reasoned case holds thatthe same facts constitute both abandonment and adverse possession. See,e.g., Sackett v. O'Brien, 251 N.Y.S.2d. 863, 868 (Sup. Ct. 1964)(holding that an abandoned parcel of land was adversely possessed),abrogated by Sackett v. O'Brien, 278 N.Y.S.2d 788, 790 (App. Div.1967) (finding that the adversely possessed parcel of land was notabandoned). The lower court holding was incoherent because abandonmenttransfers title to the first claimant immediately. On the facts ofSackett, it would have been coherent for a court to hold that title hadbeen lost either by abandonment or, alternatively, adverse possession.

(233) Something similar happened in Yourik v. Mallonee, 921 A.2d869, 871-72 (Md. Ct. Spec. App. 2007), where a divorcing coupleabandoned real property, and the parents of the husband took possessionof the property and began making tax and mortgage payments on it. Theprodigal son sued to quiet title decades later, asserting that he owneda fee simple in the property, the mortgage of which had been paid off bythe parents. The court held that the parents were the owners of theland, not by virtue of abandonment, but rather through adversepossession. Id. at 880 & n.6. See also Anson v. Tietze, 190 S.W.2d193, 197 (Mo. 1945) (recognizing the prior owner's abandonment butnoting that tide transferred by adverse possession).

(234) See DUKEMINIER ET AL., supra note 9, at 115.

(235) See O'Keeffe v. Snyder, 416 A.2d 862, 870 (N.J. 1980)(holding that adverse possession of chattels should be subject to thediscovery rule, which dictates that the statute of limitations startsrunning only when the true owner reasonably knows or should know thewhereabouts of the property and the identity of its possessor); SolomonR. Guggenheim Found. v. Lubell, 569 N.E.2d 426, 429 (N.Y. 1991) (holdingthat the statute of limitations does not run until the true ownerdemands return of the chattel property and a good faith purchaserrefuses to hand it over).

(236) Note further the contrast to the law governinggovernment-owned lands. Here, too, abandonment is typically permittedand adverse possession is largely prohibited. See, e.g., McCauley v.Thompson-Nistler, 10 P.3d 794, 800-01 (Mont. 2000) (stating that apublic road cannot be adversely possessed but can be abandoned by ashowing of clear intent).

(237) See supra text accompanying note 187 (suggesting that therule against abandonment is a remnant of the past that no longer servesa logical purpose).

(238) See, e.g., Trask v. Nozisko, 134 P.3d 544, 549 (Colo. Ct.App. 2006) (holding that an adverse possessor occupies the land when shemakes ordinary use of the land); Moore v. Musa, 198 So. 2d 843, 848(Fla. Dist. Ct. App. 1967) (same); Burkhardt v. Smith, 115 N.W.2d 540,543-44 (Wis. 1962) (same).

(239) This efficiency argument for good-faith adverse possessorscould weaken the case that Lee Anne Fennell has made on behalf ofbad-faith adverse possessors in her recent work, though theselection-effect factors that she points to in her work do cut the otherway. It is hard to know how the empirical issues wash out. See generallyLee Anne Fennell, Efficient Trespass: The Case for "Bad Faith"Adverse Possession, 100 NW. U. L. REV. 1037 (2006).

(240) Perhaps, as Eduardo Penalver has suggested to me, PoconoSprings could be de fended on much narrower grounds than those embracedby the court. Namely, whatever the rule ought to be regarding theabandonment of land, the law should restrict landowners' ability toabandon obligations to pay homeowners' association dues requiredunder the covenants, conditions, and restrictions of a common-interestcommunity. Even this narrower and more sensible approach might be inaptin a case like Pocono Springs, where the litigants and many othersimilarly situated landowners purchased their holdings under themistaken impression that the land could be developed. See E-mail fromSandra M. Lloyd to author (May 10, 2009) (on file with author); E-mailfrom Sandra M. Lloyd to author (Apr. 28, 2009) (on file with author).According to Ms. Lloyd, her parents, Joseph and Doffs MacKenzie,purchased the land at issue in Pocono Springs using the proceeds of agift from Ms. Lloyd's grandmother. After discovering that theycould not build on the land, the MacKenzies tried in vain to convincethe Homeowners' Association to take possession of it, but theAssociation, which Lloyd describes as a "syndicate of non-residentowners/speculators," refused. See Email from Sandra M. Lloyd toauthor (May 10, 2009) (on file with author). The MacKenzies feltcompelled to litigate the case because of a concern that the propertywould "become the ultimate family white elephant." Id.

Scenarios like the one in Pocono Springs, where real estate becomesan inescapable money pit, explain the common law courts' historicrefusal to let affirmative covenants bind successors in interest. See,e.g., Miller v. Clary, 103 N.E. 1114, 1117 (N.Y. 1913) ("[T]he rulethat affirmative covenants accompanying conveyances of land are notenforceable against subsequent owners is a wise one."). This commonlaw rule was rejected in the landmark case of Neponsit PropertyOwners' Ass'n v. Emigrant Industrial Savings Bank, 15 N.E.2d793 (N.Y. 1938), which held that an affirmative covenant to payassessments may run with the land and be enforceable against subsequentowners.

(241) The imposition of such a burden on the would-be abandoner isnecessary to counter the unappetizing prospect raised by Bob Ellicksonthat the homeowners' association at a place like Pocono Springswould have great difficulty determining the identity of the personresponsible for paying the assessments on its various parcels.

(242) If the landowner in question is the party that polluted it,abandoning the property would not relieve the polluter of the legalliabilities resulting from that pollution. See Baird, supra note 14, at187 (stating that abandonment of property has no effect "onobligations that have arisen as a result of past ownership of theproperty").

LIOR JACOB STRAHILEVITZ, Professor of Law and Walter ManderTeaching Scholar, University of Chicago Law School. The author thanksSandra Lloyd and James Tierney for providing helpful family historyconcerning the Pocono Springs case; Eduardo Penalver for his generouscollegiality and insight as we each tried to make headway on the issueof abandonment; Adam Badawi, Douglas Baird, Shyam Balganesh, Eric Biber,Anu Bradford, Anupam Chander, Rosalind Dixon, Joel Dobris, BobEllickson, Chris Elmendorf, Lee Fennell, Tom Ginsburg, Bernard Harcourt,Paul Heald, Dick Helmholz, Alison LaCroix, Brian Leiter, Saul Levmore,Anup Malani, Jeremy Meisel, Adam Muchmore, Adam Samaha, Henry Smith,Madhavi Sunder, and Josh Tate; workshop participants at the Universityof Chicago, the University of California Davis, Washington University inSt. Louis, and the University of Colorado's Property Works inProgress Conference for helpful comments and suggestions; Ben Foster andKatie Heinrichs for energetic research assistance; and the Morton C.Seeley Fund and the John M. Olin Foundation for research support.

Figure 1: Value and AbandonmentPositive Subjective Value, Positive Subjective Value,Positive Market Value Negative Market ValueMedium-low abandonment Very low abandonment frequencyfrequency (Examples: (Example: tyrannicalgeocaching, major league heirlooms)baseballs, making it rain)Negative Subjective Value, Negative Subjective Value,Positive Market Value Negative Market ValueMedium-high abandonment Very high abandonmentfrequency (Examples: property frequency (Examples: refuse,associated with ex-lovers, contaminated land, badlycultural objects predating damaged chattels)owners' taste changes, somepets)