During Hurricanes Katrina and Rita, thousands of Gulf Coast residents lost their homes, their possessions, their savings, and some, their lives. Those states hit hardest by the hurricanes have struggled to recover. In places like New Orleans, where hundreds of thousands of residents evacuated and may never return, uncertainty regarding the future of private property has become a fact of life. As the excerpt from Senator McPherson's letter indicates, arguably the single most critical question facing local and state governments trying to rebuild the devastated coast is how to encourage use of abandoned properties to spark the economy.
Michael A. Heller explores this question in an article that analyzes historical situations in which property has gone underused for long periods of time. American property law supports an owner's right to subdivide ownership in her property. According to Heller, however, beneath this seemingly free ability to divide ownership lies a subtle property law doctrine that prevents and abolishes excessive fragmentation and thus ensures that owners have the ability to put property to its most productive use. Heller elaborated on these general anti-fragmentation ideas with a theory he called the "tragedy of the anticommons.
William C. Spaht,
Overcoming Another Tragedy in New Orleans: Rebuilding in the Wake of "Kelo" and Act No. 851,
60 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol60/iss5/5