19 Pages Posted: 8 Dec 2011
Date Written: December 8, 2011
This short essay, presented at Fordham's conference on the social functions of property (and in an earlier form at a conference on law and memory at USC), explores the relationship between property and memory. It distinguishes between property as the object of memory ("memory of property") and property as a medium of memory ("memory in property"). With respect to both kinds of memory, the common law expresses a great deal of ambivalence towards memory. Unlimited memory is no less dangerous to a system of property than it is to an individual’s ability to think. Recent reforms of adverse possession, the rule against perpetuities, and the estate tax seem to reflect their supporters’ apparent disregard of the costs of overprotecting memories of property and memories in property. The common law’s more balanced approach seems implicitly to recognize the need to weigh memory against possession, stability against fluidity. The recognition that ratifying property’s memories generates both costs and benefits does not counsel decisively against the wisdom of modifying the law of adverse possession or abolishing the rule against perpetuities, but it does cast doubt on the one- sided approach of the proponents of these measures. In the law of property, memory is not an unmitigated good.
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