Crafting Property Forms by the Bundle

Abstract:     
Notwithstanding the modern description of property as a bundle of sticks, the forms of property still exert significant influence in legal analysis. This Essay claims that both understandings of property are necessary and can indeed be incorporated into a realist approach to property. In this approach the forms of property are helpful starting points of legal analysis, for they constitute society's existing property institutions. The bundle metaphor prevents the stagnation of these institutions by allowing - indeed requiring - their normative (and properly contextual) reevaluation and possible reconfiguration.

This Essay presents the realist approach to property through analysis of United States v. Craft, a 2002 Supreme Court decision involving the vulnerability of marital property to the claims of creditors of one spouse. The majority and dissent in Craft present conceptions of property as forms and property as bundles that cannot be reconciled and are fraught with difficulties. This Essay develops these competing accounts and demonstrates the way in which these accounts - and the realist approach to property that connects them - can inform the analysis of marital property and, more particularly, of the rights of various types of creditors of one spouse in the marital estate.

Working Paper Series