Judges and Property
INTELLECTUAL PROPERTY AND THE COMMON LAW, Shyam Balganesh, ed., Cambridge University Press, 2012
28 Pages Posted: 15 May 2011
Date Written: May 14, 2011
This Essay considers the question of whether judges should refrain from engaging in the development of property law and leave the field to the legislatures. Like previous studies, I address both the expected performance of the judiciary in property matters and its democratic legitimacy, considering the features characteristic of property. But while others have advocated judicial passivity in the creation and modification of property rights, I argue that, subject to a few exceptions dealing with general limitations of judge-made law, judges should not be excluded from the drama of property law. Indeed, the unique features of adjudication, at least in the “Grand Style” of the common law tradition, make it an important source for the ongoing critical and constructive process of reshaping property institutions by challenging the desirability of their normative underpinnings, their responsiveness to the social context in which they are situated, and their effectiveness in promoting their contextually examined normative goals.
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