Adverse Possession and Perpetuities Law: Two Dents in the Libertarian Model of Property Rights

Abstract

Richard Epstein adheres to what can fairly be called a "libertarian model" of law. Although he occasionally implies that this model positively describes the law as it is, his is mainly a normative vision of what it should be. With great energy and courage, over the past dozen years he has used the model to assess, and often to condemn, prevailing legal doctrines in torts, contracts, labor law, and other fields. In his article "Past and Future: The Temporal Dimension in the Law of Property" Epstein carries the libertarian mission into new territory, and analyzes a number of fundamental doctrines of property law that law-and-economics scholars have largely ignored. Although in this comment I am often critical of Epstein's analysis, I congratulate him for opening up these neglected topics to debate. I will first outline the libertarian model of law and contrast it with a utilitarian model. I will then analyze the adverse possession and perpetuities problems, and conclude that the venerable doctrines that govern these areas reveal a utilitarian theme in property law. I will conclude by contending that Epstein himself often lapses into utilitarianism, perhaps because the reality of transaction costs makes a purely libertarian model of property rights normatively untenable.