A theory of property

Abraham Bell, Gideon Parchomovsky

Research output: Contribution to journalArticlepeer-review

96 Scopus citations

Abstract

Notwithstanding its importance, property law has eluded both a consistent definition and a unified conceptual framework. Indeed, modern property scholarship has utterly splintered the field. On the one hand, instrumentalists view property as nothing more than default contract rules. On the other hand, conceptualists proclaim the primacy of in rem rights and specially privileged rights such as the rights to exclude, to use, and to transfer. Still other legal scholars think of property as a "bundle of sticks" capable of assuming any shape or form. This Article proposes a unified theory of property predicated on the insight that property law is organized around creating and defending the value inherent in stable ownership. Focusing on the value of stable ownership renders coherent the splintered theories currently plaguing property scholarship and provides useful conceptual, descriptive, and normative implications. This Article begins by demonstrating that any coherent and comprehensive property theory must address four legal questions: (1) What things are protected by property law; (2) vis-à-vis whom; (3) with what rights; and (4) by what enforcement mechanism ? Then, by focusing on the value inherent in stable ownership, we comprehensively address these four questions, showing how property law recognizes and helps create stable relationships between persons and assets, thereby allowing owners to extract utility otherwise unavailable. In addition to theoretical coherence, this approach provides conceptual simplicity and clarity by rendering obsolete the "bundle of sticks" metaphor, replacing it instead with the view that property rights are a means to property's end of defending the value of stable ownership. Furthermore, our value-oriented approach has both descriptive and normative power. For instance, descriptively, this Article shows that the modern trend to reduce the rights of finders of lost objects aims to protect the original owner's value of stable ownership, as does the rejection of property claims by the good faith purchaser of void title. Normatively, this Article demonstrates the need for reform in a number of areas, including nuisance law, where current doctrines protect an owner's right to "use and enjoyment," but fail to protect the owner's right to value. Finally, the theory is extended to the outer boundaries of property by examining situations where the declining value of stable ownership suggests that property law should yield to the needs of other fields like contract law or secured transactions.

Original languageEnglish
Pages (from-to)531-615
Number of pages85
JournalCornell Law Review
Volume90
Issue number3
StatePublished - Mar 2005

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