Restating the Architecture of Property

Modern Studies in Property Law, Volume 10 (May, 2019), edited by Ben McFarlane & Sinéad Agnew.

20 Pages Posted: 26 Feb 2019

Date Written: February 13, 2019

Abstract

Property law has proven difficult to restate, with none of the American Law Institute’s previous Restatements coming close to covering the full breadth of this area. In addition to trying to fill this gap, those working on the current Fourth Restatement aim to capture the architecture of property. In the terms of complex systems theory, a Restatement should reflect the arrangement and interactions, the groupings, and the coherence (sometimes) of property law, rather than treating it as a heap of full detachable rules and components. Conventional strong versions of the bundle of rights picture of property, reinforced by the nature of the Restatement process, make it difficult to address property as a complex system. Using examples of possession and the property torts, the paper shows how a Restatement can begin to incorporate property’s architecture and why it matters to the operation and the development of the law.

Keywords: Property, Restatement, Complexity, System, Complex Systems, Possession, Trespass, Nuisance

JEL Classification: B52, K11, K13

Suggested Citation

Smith, Henry E., Restating the Architecture of Property (February 13, 2019). Modern Studies in Property Law, Volume 10 (May, 2019), edited by Ben McFarlane & Sinéad Agnew.. Available at SSRN: https://ssrn.com/abstract=3334156

Henry E. Smith (Contact Author)

Harvard Law School ( email )

1575 Massachusetts
Hauser 406
Cambridge, MA 02138
United States

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