The Possession Heuristic

35 Pages Posted: 19 Feb 2014 Last revised: 11 Nov 2014

Christopher Serkin

Vanderbilt Law School

James E. Krier

University of Michigan Law School

Date Written: February 17, 2014

Abstract

This chapter for the forthcoming book, The Law and Economics of Possession (Yun-chien Chang, ed), explores the law of possession as an application of a heuristic (a simple decision making strategy devised to solve complex problems, part of System 1 thinking in Daniel Kahneman’s famous formulation). Since the law of property is essentially the law of belongings, its first task is to determine to whom things belong. There are all sorts of complicated inquiries that could be undertaken to figure out and justify an incredible range of answers to this question. Alternatively, there is a simple inquiry that provides a simple answer: A thing belongs to its possessor. This is the possession heuristic. The chapter canvases possession doctrines and ultimately argues that some current controversies in property, about the centrality of exclusion versus a social obligation norm in property, can be at least partly reconciled by viewing possession as a heuristic.

Keywords: Property, Property Theory, Possession, Heuristic

Suggested Citation

Serkin, Christopher and Krier, James E., The Possession Heuristic (February 17, 2014). The Law and Economics of Possession (Yun-chien Chang, ed.) Forthcoming; U of Michigan Public Law Research Paper No. 387; U of Michigan Law & Econ Research Paper No. 14-004; Vanderbilt Law and Economics Research Paper No. 14-16. Available at SSRN: https://ssrn.com/abstract=2397267

Christopher Serkin

Vanderbilt Law School ( email )

131 21st Avenue South
Nashville, TN 37203
United States
615-343-6131 (Phone)

James E. Krier (Contact Author)

University of Michigan Law School ( email )

625 South State Street
1039 Legal Research Building
Ann Arbor, MI 48109-1215
United States
734-764-4701 (Phone)
734-764-8309 (Fax)

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