Property frames.

AuthorNash, Jonathan Remy
PositionCognitive framing of property rights

TABLE OF CONTENTS INTRODUCTION I. PROPERTY RIGHTS PARADIGMS AS COGNITIVE FRAMES A. When Property Attitudes Are Too Strong B. Cognitive Framing Research C. Property Paradigms: Bundles versus Discrete Assets II. THE EXPERIMENTS A. Methods 1. Experiment 1 a. Study Design and Hypotheses b. Participants and Materials c. Procedure 2. Experiment 2 a. Study Design and Hypothesis b. Participants c. Procedure B. Results and Discussion of Findings 1. Experiment 1 a. Perceptions of Ownership b. Reactions to Regulation c. Emotional Response d. Data Exclusion 2. Experiment 2 III. REFRAMING PROPERTY RIGHTS: IMPLICATIONS FOR LEGAL THEORY AND PRACTICE A. The Resilience of the Discrete Asset Paradigm B. Reframing Property: Property Perceptions and Behavior C. Framing Synergies D. A Public Choice Model of Framing E. Framing Costs and Considerations 1. Cognitive Constraints 2. Disuniform Framing and Market Fungibility 3. Normative Considerations and Utility Reduction 4. Frame Drift IV. APPLICATIONS A. Property Rights and Environmental Regulation: Species Preservation on Private Land and Tradable Pollution Permits B. Property Rights in Common Interest Communities C. Intellectual Property Rights: The First Sale and Exhaustion Doctrines CONCLUSION INTRODUCTION

A voluminous scholarly literature has extolled the virtues of private property and advocated laws to secure strong property rights. (1) Yet, in certain contexts, intense preferences for strong, even unfettered, private property rights have created considerable havoc. At times, owners contemplate their property rights with a fierceness and inflexibility that clashes with the needs of modern society. Individuals have shot endangered species, chained themselves to foreclosed property, and built towering "spite fences." Conflicts arise when limitations do not square with owners' perceptions of their rights or of the nature of their property entitlement. (2) Ownership perceptions may prompt extra-legal, or "street level," property behavior that extends beyond the formal scope of the property right and may create negative externalities. (3) When that behavior is too costly to police it results in a de facto expansion of the scope of the individual's property rights; these property behaviors, if common enough, generalize to social norms. (4) Legislatures in turn may respond by enacting laws that formalize owners' expectations (5)--in some instances contrary to broader social goals or allocative efficiency. (6)

Groundbreaking psychology research in cognitive framing suggests an answer to the question of how to selectively weaken property perceptions. Daniel Kahneman and Amos Tversky have shown that the way in which a problem or choice is presented or "framed" affects the decision maker's perceptions, and ultimately the decision maker's preferences. (7) The framing of legal rights, specifically property rights, is novel ground in legal scholarship. our basic insight is that the same property entitlement (or as near to the same as one can obtain without using identical language), presented two different ways, may produce sharply divergent outcomes. How a property entitlement is framed--that is, both the scenario in question and the applicable legal rule--will affect the attitudes and behaviors of societal actors subject to legal rules and influence policy makers as they choose among possible legal rules. In short, how we think about property matters. And because the way we think about property depends in part upon the presentation of rights information, how we write laws and create property entitlements matters too.

The goal of this Article is to investigate how law can employ "property frames" systematically to alter ownership perceptions and expectations regarding regulation. If there are no effects from framing, this suggests that the tremendous academic debate over the proper conception of property may have limited utility on the ground in affecting how people think about their property. If, as we hypothesize, framing property to convey a sense of limitation and cognitively prime restrictions weakens ownership perceptions, then property law may serve to "set frames" in complex legal and social contexts. To clarify our analytical parameters, our aim is not to endorse a normative conception of weak property rights universally or to dispute the utility of private property. In many circumstances, strong property rights perceptions (and even misperceptions) promote individually and socially valuable investment. Rather, we contend that in certain contexts excessively strong rights expectations impose steep social costs in the various currencies of efficiency, fairness, and social responsibility--and may stymie the very property institutions they purport to extend.

The potential applications of our research to property and environmental law are numerous. Statutory law, regulations, case law, and even legal theory can all reframe property rights. Legislators, judges, and regulatory agencies frame (and reframe over time) rights in pollution, intellectual property, land use, concurrent and common ownership, and inheritance to name a few. In some cases, these institutional players craft legal measures that respond to (or even capitalize on) strong, preexisting frames of citizen-owners. (8) In other cases, they endeavor to limit spillovers and other social harms by reframing property rights as a limited set of use rights, rather than unfettered dominion.

Too often, the subject of attitudes and perceptions has been cast aside in legal scholarship in favor of entirely hypothetical models of behavior or ex post markers such as economic gains or losses, votes, or other external behaviors. (9) This Article seeks to intervene at an earlier point in the process--before the decision has been made, the money spent, the vote cast. Is this psychological manipulation, a legal sleight of hand? Perhaps. We argue that in some contexts the social ends justify the means. In certain cases, greater gains may avail from the strategic presentation or framing of the initial property right than from our current menu of choice: ex post regulation, incentives, government intervention, and litigation. In addition, attitudes and perceptions not only affect the behavior of individual property owners, but determine the political viability and ultimate fate of laws. In many instances, framing motivates politicians, who act as attitude entrepreneurs, gleaning the sentiments of constituents in some instances, attempting to reshape those sentiments in others. (10)

We investigate two ways of framing property: first, bundle-of-rights versus discrete-asset framing, and second, forewarning framing. There is a long-standing debate in the scholarly literature about the appropriate conception of two paradigms--the "discrete-asset" paradigm and the "bundle-of-rights" paradigm--used at various times and by various groups to represent the notion of property rights. (11) Under the discrete-asset approach, the owner of a piece of property has dominion, subject to some constraints, over that asset. (12) Under the bundle approach, property can be viewed as a bundle of sticks: each stick represents a right to occupy, use, sell, exclude others from, or deploy property in some way. (13) Many theorists who have employed the bundle-of-rights conception emphasize its instrumental orientation: rights follow from social goals and policies. (14) Systematically framing property as a bundle of rights may weaken ownership perceptions because individual strands of rights evoke a sense of limitations; if owners associate dominion with owned objects, moving from object language to rights language may reduce expectations of unlimited control. In addition, the description of a complex of rights, rather than the more simplistic ownership of an object, may increase cognitive demand and encourage information-driven rather than emotional responses. In addition to bundle versus discrete asset frames, we consider whether framing through forewarning affects subsequent rights restrictions. We test whether forewarning--meaning ex ante limitations and restrictions explicitly communicated to the rights holder--affects perceptions of ownership, valuation, and regulatory action. We hypothesize that this form of framing primes, or increases the cognitive accessibility of, information on rights restriction and tempers expectations for subsequent property use.

To date, the legal scholarship has largely neglected the potential for property frames to alter ownership perceptions and reactions to subsequent rights infringement. The rational choice model does not account for the powerful effects of framing on decision making. (15) The legal scholarship on property paradigms (i.e., bundles versus discrete assets) focuses exclusively on normative models of property and treats behavior with respect to property as exogenous to the choice of property paradigm. The exception is the legal realists' use of the bundle of rights to depict property as limited, flexible rights capable of ceding to social needs and obligations. Legal realism's deployment of the bundle paradigm may be recast through a psychological lens as cognitive re-framing, at least with respect to the realists' intended audience of sophisticated legal actors. (16) The legal realism scholarship fails, however, to examine the impact of the bundle paradigm on owners' perceptions and to seek empirical evidence of the framing capability of bundles of rights. This Article seeks to fill that empirical void in the property scholarship.

To accomplish this, we created an experimental deception where incoming first-year law students learned that the law school was considering a change in the school laptop computer policy. We presented the proposed laptop purchase policy to students randomly assigned to one of four "framing" conditions: the bundle-of-rights form, the discrete-asset form, the bundle-of-rights form...

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