The Craft of Property

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Abstract

Notwithstanding the modern description of property as a bundle of sticks, the conception of property as forms still exerts significant influence in legal analysis. This Article claims that both understandings of property are necessary and can indeed be incorporated into a realist approach to property. A realist perspective understands the forms of property as institutions: important default frameworks of interpersonal interaction that consolidate people's expectations and express law's normative ideals for core types of human relationships. For this reason, the existing forms of property are helpful as starting points of legal analysis. But as social institutions, the existing property forms are not accorded overwhelming normative authority. Rather, using the bundle metaphor, these property forms are subject to an ongoing normative (and properly contextual) reevaluation and possible reconfiguration. This Article presents the realist approach to property through analysis of United States v. Craft, a 2002 Supreme Court decision involving the vulnerability of marital property to the claims of one spouse's creditors. The conceptions of property presented in Craft as either forms or bundles are both riddled with flaws. This Article develops the competing approach of property as institutions and demonstrates how it can inform the resolution of conflicts between various types of creditors of one spouse and the nondebtor spouse. Property as institutions usefully focuses the legal analysis of these issues on the guiding principles of property governance in marriage and of legal accidents law, which regulates contradictory claims raised by parties with no contractual privity. Understanding property as institutions helps account for the numerus clausus principle, which prescribes that the forms of property are limited in number and standardized. It also refines the implications of this pervasive characteristic of property. This Article claims that, properly understood, the numerus clausus principle requires a purposive, rather than formalistic, legal discourse. It also shows that within the framework of property as institutions the numerus clausus principle leaves rather broad room for freedom of contract, allowing parties to opt out of most incidents of existing property forms.

Original languageEnglish
Pages (from-to)1517-1571
Number of pages55
JournalCalifornia Law Review
Volume91
Issue number6
DOIs
StatePublished - Dec 2003

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