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The Rule of Reason in Property Law

66 Pages Posted: 13 Aug 2012 Last revised: 29 Jun 2013

Joseph William Singer

Harvard Law School

Date Written: August 12, 2012

Abstract

Property rights cannot work if they are not clear, and scholars generally assume that the best way to attain this goal is to define property rights by relatively rigid rules. However, recent evidence suggests that the intuitive view may be mistaken. The subprime crisis shows that clear rules do not produce clear titles if owners do not follow those rules. And during the twentieth century property law moved dramatically away from rigid rules toward flexible standards. Standards turn out to be crucial to property law, as well as increasingly important in property doctrine.

Empirical evidence and historical experience alike demonstrate that rules cannot be applied without being supplemented by standards to determine the scope of those rules. Conversely, standards achieve predictability through core exemplars, precedent, and presumptions. Thus rules and standards are less distinct from each other than one might imagine. Standards perform crucial functions for property law. They perform systemic functions to shape the infrastructure and the outer contours of the property system by (1) setting minimum standards compatible with the norms of a free and democratic society, (2) protecting the justified expectations of consumers, and (3) responding to externalities and systemic effects of the exercise of property rights. Standards also determine the scope of property rights by (4) distinguishing cases; (5) resolving conflicting norms; (6) excusing mistakes; (7) escaping the "dead hand" of the past; and (8) deterring the "bad man" from abusing property rights.

Keywords: property, rules, standards, administrability, formal realizability

Suggested Citation

Singer, Joseph William, The Rule of Reason in Property Law (August 12, 2012). UC Davis Law Review, 2013; Harvard Public Law Working Paper No. 12-39. Available at SSRN: https://ssrn.com/abstract=2128299 or http://dx.doi.org/10.2139/ssrn.2128299

Joseph W. Singer (Contact Author)

Harvard Law School ( email )

1575 Massachusetts
Hauser 406
Cambridge, MA 02138
United States

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