The Dynamic Law of Property: Theorizing the Role of Legal Standards

Abstract

Property law is engaged in a constant conflict between stability and dynamism. As a field of law which delineates rights and duties to resources that apply in rem to large numbers of heterogonous parties, it is committed to ensuring stability and predictability. At the same time, even the most careful design of property norms cannot predict in advance all scenarios and legal contingencies, and must also address changes over time in values, socioeconomic environments, technological knowledge, etc. as affecting such norms.

One potential strategy to accommodate dynamism in law is by crafting norms as open-ended “standards” rather than as clear-cut “rules.” Contemporary scholarship has been dealing extensively with the rules/standards tradeoff by addressing both public promulgation of laws and various forms of private ordering, especially in contract law.

Property has, however, been generally left out of the rules versus standards literature, addressing only discrete issues such as the boundaries of a hard-edged right to exclude. This Article offers a first-of-its-kind systematic analysis of the ways in which legal standards operate in property. It identifies the unique manner in which the chief justifications for standards - i.e., inherent “incompleteness” of rights and enhancement of “value-based” jurisprudence - play out in constructing property law. Cutting across conventional public/private distinctions by referring to various standards such as “custom,” “reasonableness,” “abuse of rights,” or “public use,” the Article argues that legal standards in property hinge prominently on the institutional mechanisms through which such norms are crafted and filled with content over time, and identifies the conditions under which property standards may outperform clear-cut rules.

Keywords: property, jurisprudence, institutions, rules, standards, intellectual property, contracts, torts, takings, nuisance, abuse of right, custom, trade usage, informal norms

JEL Classification: D7, D8, F1, K11, K12, K13, N2