More is Not Always Better than Less: An Exploration in Property Law
Hebrew University - Faculty of Law
Minnesota Law Review, Vol. 92, No. 3, 2008
The common intuition that more is better than less often lies at the heart of arguments regarding legal rules. It supports the belief that the right to take an extreme measure with respect to property encompasses the right to take a more moderate one. For example, scholars have claimed that since owners are free not to transfer their assets, but rather destroy or sell them before death, then they should be entitled to bequeath those assets subject to conditions. As more property is better than less, and some property better than none at all, it is better to inherit property subject to restrictions or conditions than to inherit nothing. It follows that the law should permit moderate measures, lest owners are induced to opt for extreme measures, resulting in less property to other individuals.
This Article advances the counterintuitive view that more is not always better than less. First, it shows that numerous legal rules reject the more is better than less argument, and restrict moderate measures relating to property more than extreme measures. In many cases, owners have more freedom to use property than to avoid using it, more power to destroy property than to modify or neglect it, and more liberty not to transfer property than to transfer it conditionally. Second, the Article argues that this seemingly puzzling state of affairs rests on sound normative grounds and on widely tested behavioral observations. Three justifications are advanced for greater scrutiny and intervention in the case of moderate, rather than extreme, measures regarding property rights: protecting potential property transferees, reducing the incidence of low-valuing owners, and correcting distributive errors. These rationales can serve to evaluate and critique existing rules in property law as well as in other legal spheres, such as labor law, zoning law, and contract law.
Number of Pages in PDF File: 80
Keywords: property law, economic analysis of law, behavioral law and economics, trademarks, copyright, moral rights, rent control, overoptimism, endowment effect, redistribution, donative transfers
JEL Classification: A12, C78, D30, D61, K11, K12, K31
Date posted: March 4, 2008