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The Language of Property: Form, Context, and Audience

Posted: 23 Dec 2004  

Henry E. Smith

Harvard Law School

Abstract

This Article uses linguistic theory to bring out a tradeoff between the intensiveness of a message versus the extensiveness of the audience: With the same communicative effort, one can convey a great deal of information to a knowing few or less information to wider, more heterogeneous, and more anonymous audiences. The paper shows that this tradeoff can explain certain features of possession law, recording acts, intellectual property, and contract interpretation. Recognizing this informational tradeoff also leads one to expect formalism to be a matter of degree rather than the all-or-nothing choice often assumed by commentators. And the nature of communication within a broad spectrum of institutions is characterized by different modes of striking the informational tradeoff according to the nature of the intended audience. It is in this sense that law involves what linguists call "audience design."

Keywords: Property, Intellectual Property, Contract Interpretation, Linguistics, Information, Formalism, Audience, Possession, Pierson v. Post, Recording Acts63

JEL Classification: D83, K10, K11, K12

Suggested Citation

Smith, Henry E., The Language of Property: Form, Context, and Audience. Stanford Law Review, Vol. 55, pp. 1105-91, 2003. Available at SSRN: https://ssrn.com/abstract=638721

Henry E. Smith (Contact Author)

Harvard Law School ( email )

1575 Massachusetts
Hauser 406
Cambridge, MA 02138
United States

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