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.