WHAT IS PROPERTY LAW IN AN AGE OF STATUTES AND REGULATION?: A REVIEW OF PROPERTY: PRINCIPLES AND POLICIES BY THOMAS MERRILL, HENRY SMITH AND MAUREEN BRADY
Abstract
The Fourth Edition of Property: Principles and Policies by Thomas Merrill, Henry Smith and Maureen Brady lays out what the field's leading thinkers believe we all should know about property law. Unlike most casebooks, the book is an intellectual achievement, a powerful argument made through educational materials. But it is premised on a set of beliefs, common among property law scholars, about what is important about the field. Although it discusses many legal and policy issues, Property: Principles and Policies focuses on the common law of property and the structure of property rights, both in theory and in historical practice. However, the property law it presents is often quite distant from how we actually regulate the uses and transfers of real property today. For better or for worse, we live in an age of statutes and administration. From mortgage regulation to zoning to property tax policy and administration, the most important means through which we regulate real property fall outside of the common law. The book, and indeed much of the work done by property law scholars, does not wrestle with the methods through which government institutions regulate real property. While systems of real property regulation build on the structure of property rights established over time, most relevant legal and policy disputes about real property do not turn on interpretations or changes in the common law of property. Instead, they are instances where other types of law--administrative, local government, securities, and tax, among others--apply to real property. Focusing on the traditional common law of property, rather than the effects other types of law have on real property, is not a mistake. It is a choice. But it is a choice that comes with costs for students and scholars alike. Most real property regulation is done through state and local governments. First-year students, whether they have requisite traditional property law courses, federal-law focused "Leg-Reg" courses, or both, are often not exposed to how state and local governments work. Similarly, focusing on the common law and the theoretical structure of property rights renders property law scholars less able to be useful to legal and policy disputes. The rich insights of property law theory could contribute more to contemporary law and policy if scholars took seriously the institutions that regulate most property most of the time.Collections
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Intellectual Property as Property: Delineating Entitlements in InformationThis Article proposes that intellectual property's close relationship to property stems from the role that information costs play in the delineation and enforcement of exclusion rights. As theorists have emphasized, the nonrivalness of information causes exclusive rights to be more costly in terms of forgone use than in the law of tangible property. But if intellectual property does not solve a problem of allocation, it can play a role in allowing those who find and develop information to appropriate the returns from their rival inputs. It is on the cost side that exclusion emerges as a possible shortcut: exclusive rights in information are simple, indirect, and low-cost devices for solving the problem of appropriating the returns from these rival inputs. Building on a framework that identifies exclusion and governance as complementary strategies for defining property rights, the Article derives some propositions about which factors can be expected to push toward and away from exclusion in delineating entitlements to information. The role that exclusion plays in keeping the system of entitlements over information modular? allowing information to be hidden behind metaphorical boundaries? is both its strength and its weakness. Because exclusion is both more costly and potentially more beneficial as interconnected information becomes more valuable, it is an empirical question whether we would expect more exclusion ? and whether it would be desirable. The Article uses this information-cost theory to explain some of the basic differences between the more tort-like copyright regime and the more property-like patent law. The information-cost theory also has implications for suggestive sources of empirical evidence on the structure of entitlements, such as rules within business organizations. Intellectual property, like property in general, can be seen as (at best) a second-best solution to a complex coordination problem of attributing outputs to inputs.
