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
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: Suggested Citation