Evolution of Rules in a Common Law System: Differential Litigation of the Fee Tail and Other Perpetuities

25 Pages Posted: 18 Feb 2005 Last revised: 7 Jun 2013

Jeffrey Evans Stake

Indiana University Maurer School of Law

Abstract

This paper presents a variation on the Rubin-Priest theory of the evolution of common law rules toward efficiency. It offers the fee tail and similar restraints on alienation as examples of how inefficient rules can lead to inefficient uses of land, which cause owners to seek the help of courts in freeing their lands from the inefficient constraints. In other words, there is a feedback loop that provides courts with opportunities to overturn inefficient common law rules. We should expect this common law drift toward efficiency to be stronger for property rules than for tort rules. Because efficient property rules are important to a healthy economy, the common law process may have an internal advantage in its external competition with other legal systems.

Keywords: evolution, fee tail, perpetuities, common law, property

JEL Classification: K11, K41, K10

Suggested Citation

Stake, Jeffrey Evans, Evolution of Rules in a Common Law System: Differential Litigation of the Fee Tail and Other Perpetuities. 32 Florida State University Law Review 401 (2005); Indiana Legal Studies Research Paper No. 1. Available at SSRN: https://ssrn.com/abstract=668681

Jeffrey Evans Stake (Contact Author)

Indiana University Maurer School of Law ( email )

211 S. Indiana Avenue
Bloomington, IN 47405
United States
812-855-4444 (Phone)

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