Judges and property

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Introduction. Much of private law in the common law tradition is judge-made law. Both the significant impact that judges have had in the past on the laws of contracts, torts, and restitution and the continuous active role of adjudication in private law's normative development – at times as interpreters of legislated statutes – are taken as obvious features of these fields. Property law may seem different. Many years ago, the English legal historian W. S. Holdsworth noted that “the Legislature has had a larger share in shaping the land law than it has had in shaping any other branch of private law.” Recently, the dominance of legislation seems as apparent regarding property's frontiers: the law of intellectual property. As Shyamkrishna Balganesh – a friend of common law – observes, “the frequency with which Congress amends the patent and copyright statutes seems to leave little doubt that it alone determines intellectual property's precise content and coverage.” These descriptive propositions should be treated cautiously, but may nonetheless seem conceptually tempting. They may invite a claim regarding the deep foundations of property law, which makes property conceptually distinct from other areas of private law. Property, in this view, is by essence less amenable to judge-made law than the rest of private law. An even more important lesson that might be learned is that judges should altogether avoid the business of affecting – creating, modifying, or abolishing – property rights, leaving this task entirely to legislatures. This temptation of property exceptionalism seems to be validated by the numerus clausus principle, which prescribes that, at any given time, property law offers only a limited number of standardized forms of property. As a principle of “judicial conservatism regarding innovation in the system of property rights,” which is a typical feature of many (and perhaps most) modern legal systems, numerus clausus may be interpreted as the doctrinal manifestation of such property exceptionalism.

Original languageEnglish
Title of host publicationIntellectual Property and the Common Law
PublisherCambridge University Press
Number of pages25
ISBN (Electronic)9781139013550
ISBN (Print)9781107014152
StatePublished - 1 Jan 2012


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