Smith on Property Law as a System

Post by Henry Smith

I have two new papers up on SSRN (one out and the other forthcoming), which both deal with the question of property law as a system.  In “Complexity and the Cathedral: Making Law and Economics More Calabresian,” a piece for a symposium in the European Journal of Law and Economics, on Guido’s recent book, I argue that law and economics could learn more from law (in a Calabresian fashion) if we abandon the strongly reductionist versions of the bundle of rights picture that stands behind Guido’s famous “Cathedral” article – about property rules, liability rules, and inalienability rules – with Doug Melamed. (When I presented the paper, Guido was in the audience and Doug the commentator – a once in a lifetime experience for me!).

In a related vein, I have a paper “Restating the Architecture of Property,” forthcoming in Modern Studies in Property Law, which argues that “system” has been a systematic (!) problem for restating property law. From the beginnings of the American Law Institute and continuing on through Realism and its aftermath, a numerosity-based approach to complexity and a reductionist view that law is a heap of rules have contributed to the difficulty of capturing the architecture of property law. Complexity is a matter of interconnectedness and emergent properties – as important as it is difficult to capture in the conventional process of restating the law.  I give some examples from the property torts of how with the Fourth Restatement we are trying to remedy this lack of attention to complexity and system.

Bonus teaser question: Which figure best represents the bundle of rights?:

[Figure adapted from Lee Alston & Bernardo Mueller, Towards a More Evolutionary Theory of Property Rights, 100 Iowa L. Rev. 2255, 2263, Fig. 1]

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