Remedies, rights, and properties

Journal of Tort Law

Volumn 4, Issue 1, 2011, Pages

  Dagan, Hanoch ^a  

^a TEL AVIV UNIVERSITY   (Israel)

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EID: 79958111352     PISSN: None     EISSN: 19329148     Source Type: Journal    
DOI: 10.2202/1932-9148.1108     Document Type: Conference Paper

References (132)

1. This approach is reflected in, and may also be perpetuated by, the study of remedies as a separate subject in the curriculum. Incidentally, contract law theory is far less affected by this approach: contract theorists tend to address remedies and appreciate the significance of remedial choices to the understanding of contractual rights. The locus classicus for this is L. L. Fuller & William R. Perdue, Jr., The Reliance Interest in Contract Damages, 46 Yale L. J. 52 (1936).
2. See Peter Benson, Introduction, in The Theory of Contract Law: New Essay 1 (2001).
3. Wesley Newcomb Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, 23 Yale L. J. 16 (1913).
4. See Joseph William Singer, The Legal Rights Debate in Analytical Jurisprudence from Bentham to Hohfeld, 1982 Wisc. L. Rev. 975, 987, 994, 1022-23, 1050, 1056-59.
5. See also Duncan Kennedy, A Critique of Adjudication - FIN de SIECLE 305, 319, 323(1997);
6. Andrei Marmor, On the Limits of Rights, 16 Law and Phil. 1, 10-14 (1996).
7. Wesley Newcomb Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning, 26 Yale L. J. 710, 753(1917).
8. Id., at 754-57, 763.
9. For an account of tort law that accepts a similar disjunction between the trigger for the plaintiff's right of action and the available remedies, see Benjamin C. Zipursky, Civil Recourse, Not Corrective Justice, 91 Geo. L. J. 695, 710-13, 735, 748-52 (2003).
10. Guido Calabresi & A. Douglas Melamed, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85 Harv. L. Rev. 1089 (1972).
11. Jules Coleman and Jody Kraus emphasize this point in their analysis of Calabresi and Melamed's framework, which resists the conventional treatment noted in the text. Coleman and Kraus argue that this framework makes little sense if we understand rights as "secured or protected liberties", demarcating "a realm of liberty or control." If the point of rights is "to secure a domain of control", rather than "to guarantee a particular level of welfare or utility", rights cannot be "reducible to or otherwise identifiable with a point on a right bearer's indifference curve... certainly, not if one wants to maintain the distinction between autonomy and utility." Because "the most liability rules can secure is a level of welfare equal to the value of the right bearer's interest, including even his interest in his autonomy... liability rules cannot, in this view, protect rights." But this conception of rights, Coleman and Kraus claim, is mistaken because it confuses one specific justification of rights with the meaning of rights, whereas "whether rights provide autonomy or are designed purely to guarantee a level of welfare is a contingent feature of them." And once we open up the possibility that rights can designate either liberties or interests "as warranting a privileged status", we realize that both property rules and liability rules are best understood not as different means of entitlement protection but rather "as devices for generating or specifying the content or meaning of such rights." Thus, Coleman and Kraus conclude, the choice between these types of rules depends on the purpose we want the right at issue to serve, which in turn is determined by the pertinent foundational or normative theory we adopt "and the facts of the world: that is, by a theory of what is desirable as constrained by what is feasible."
12. See Jules L. Coleman & Jody Kraus, Rethinking the Theory of Legal Rights, 95 Yale L. J. 1335, 1339-40, 1342-43, 1345, 1369-71 (1986).
13. See generally Hanoch Dagan, The Realist Conception of Law, 57 U. Toronto L. J. 607, 622-37 (2007).
14. Taking this point to what may be perceived as its logical conclusion leads to a strong version of the interdependence thesis. See, e.g., Ernest J. Weinrib, The Idea of Private Law 135 (1995);
15. Avihay Dorfman, What is the Point of the Tort Remedy?, 55 Am. J. Jurisp. 105 (2010). But this point should not be taken to its logical conclusion because the justificatory burden re the content and structure of the remedial apparatus applied by private law is only part of the justificatory burden of our private law.
16. Cf. Hanoch Dagan, Just and Unjust Enrichments, in The Goals of Private Law 423 (Andrew Robertson & Tang Hang Wu eds., 2009).
17. See Karl N. Llewellyn, A Realistic Jurisprudence: The Next Step, in Jurisprudence: Realism in Theory and in Practice 3, 8-18, 21-23 (1962);
18. Llewellyn, Some Realism about Realism, in Jurisprudence
19. id., at 42, 63;
20. Karl L. Llewellyn, The Bramble Bush 93-94, 96-97 (1930).
21. Taking this important point seriously requires resisting views that conceptualize tort law around the remedial obligations following tortuous activities, thus obscuring the priority of discharging the primary obligations over remedying failures to do so. See Dorfman, supra note 10;
22. Gregory C. Keating, Is Tort a Remedial Institution? (unpublished manuscript).
23. Cf. Leif Wenar, The Nature of Rights, 33 Phil. & Pub. Aff. 223 (2005). Wenar develops "a several functions theory" of rights and defends it against both the monistic will and interest theories of rights and the "any-incident" theory of rights. Wenar argues that "there is no one thing that rights do for rightholders. Rights have no fundamental normative purpose in this sense. Rather, rights play a number of different roles in our lives.... [T]hey mark exemption, or discretion, or authorization, or entitle their holders to protection, provision, or performance."
24. Id. at 248, 252.
25. See Richard Nolan, Remedies for Breach of Contract: Specific Enforcement and Restitution, in Failure of Contracts: Contractual, Restitutionary and Proprietary Consequences 35, 37-38 (Francis D. Rose ed., 1997).
26. See, e.g., Coleman & Kraus, supra note 8, at 1347 & n17. Coleman and Kraus also mention that legal realists fail to appreciate that "entitlements specify the conduct others must exhibit if they seek to conform to the relevant norms, not just the sanctions or liabilities they are likely to incur in the event their conduct fails to conform." This proposition is correct, but is not necessarily threatened by Llewellyn's account. In fact, not with standing Hart's fierce critique of Oliver Wendell Holmes (and John Austin) for their dismissal of law's normativity, a charitable reading of the realist legacy suggests a much more subtle position re law's power and its normativity.
27. See Dagan, supra note 9
28. id.
29. Stephen A Smith, Rights and Remedies: A Complex Relationship, in Taking Remedies Seriously 31, 33, 39, 43-47, 49-52, 55, 57-60 (Kent Roach & Robert Sharpe eds. 2010).
30. Smith uses this point in order to critique the efficient breach theory of contract. Insofar as the prevalence of expectation damages, as opposed to specific performance, indeed relies on such institutional concerns, it cannot serve as evidence for the content of promisees' right. It is not clear, however, that these considerations can adequately account for many types of cases in which specific performance is denied, and that there are no good reasons for conceptualizing this right in these cases as indeed limited to the expectation interest. See Alan Schwartz & Daniel Markovitz, The Myth of Efficient Breach (unpublished manuscript).
31. Smith also mentions cases, notably in the context of family law, in which the court's wide discretion implies that remedies are given where plaintiffs have no rights.
32. Smith argues that remedies (or court orders in his terminology) are not part of private law, although they may be of evidential value to it. Rather, in his view, "[t]he law of court orders is fundamentally a branch of public law", as it determines our rights against courts (and not against one another).
33. See Ernest J. Weinrib, Punishment and Disgorgement as Contract Remedies, 78 Chi.-Kent L. Rev. 55, 91, 98(2003).
34. Cf. Dorfman, supra note 10, at 156 ("insofar as the engagement-based remedial process between victim and wrongdoer aspires to turn the former from a mere factor of production (in the latter's service) into a free and equal agent meriting, by virtue of being a person, the sort of respectful recognition mandated by tort law, imposing an additional cost on the wrongdoer owed to the victim becomes appropriate").
35. This proposition is limited to the gap between our private law rights and the remedies provided by courts in response to claims following their violations. The gap may unfortunately be much wider, with rights far less protected or vindicated, if we include cases where no such litigation is instigated or followed through for a variety of reasons, or where court orders are not properly enforced. In other words, though we know injustice is rampant out there, we expect courts to refuse to give it their approval once they have a say. I am grateful to Roy Kreitner for this point.
36. These claims should have been integrated into his account also because Llewellyn, particularly as a realist, should have taken account far more carefully of various institutional contexts wherein rights are translated into remedies. For a recent discussion of the realist commitment to institutional analysis, see Roy Kreitner, Biographing Legal Realism, 35 L. & Soc. Inq. 765 (2010).
37. These are the two challenges posed more generally by legal realism. See Anthony T. Kronman, Jurisprudential Responses to Legal Realism, 73 Cornell L. Rev. 335, 335-36 (1988).
38. This would also mean that although rights are rather multifaceted they are not reducible to rules. Cf. Joseph Raz, On the Nature of Rights, 93 Mind 194 (1984).
39. See Hanoch Dagan, Unjust Enrichment: A Study of Private Law and Public Values chs. 2 & 4 (1997), on which the remainder of this section draws.
40. An additional important distinction that makes my test case easier is that, because I deal with cases of profitable invasions, the choice of applicable measure of recovery can credibly serve as evidence as to whether the law indeed sanctions a transfer subject to compensation, or refuses to treat such compensation as a substitute to consent. By contrast, because in most accident cases the plaintiff's harm is greater than the defendant's profits, the fact that law's typical remedy in such cases is aimed at making the plaintiff whole cannot arbitrate between these rival interpretations. For a recent attempt to resolve this ambiguity, see Mark A. Geistfeld, Tort Law and the Inherent Limitations of Monetary Exchange: Property Rules, Liability Rules, and the Negligence Rule, 4 J. Tort L. 4 (2011).
41. This was first noted in Daniel Friedmann, Restitution of Benefits Obtained through the Appropriation of Property or the Commission of a Wrong, 80 Colum. L. Rev. 504, 512-13, 556-57 (1980).
42. Admittedly, this aspect relates to the exact scope of the right, rather than the type of remedy. It nonetheless serves my discussion here because, as noted, remedies variability is only one example for the more general point of rights multiplicity.
43. A possible economic explanation for some remedial diversity may focus on the divergent subjective disutilities people may experience from the appropriation of different types of resources. The difficulties of verifying these harms and the entailed risk of their undercompensation may suggest that, where transaction costs are not too high, the appropriation of constitutive resources triggers harsh measures of recovery. I am not familiar with any full-blown account of the appropriation paradigm along these lines and am somewhat skeptical that it may successfully account for this doctrine, given its need to carefully balance the different risks of under-compensation and the divergent levels of transaction costs.
44. The full translation scheme is captured in the following table (from Dagan, supra note 25
45. If one focuses on the availability of injunctions in these various contexts, one would admittedly find much more uniformity. But this uniformity seems to be misleading, because if indeed the general availability of injunctions would have stood for a uniform Well-Being & Control type of entitlement, it would have not made much sense for the law to limit the ex post pecuniary recovery to less than max (Fair Market Value, Profits) in any of the categories mentioned above. Therefore, it seems that the broad availability of injunctions must be analyzed in terms that deviate from the contours of the rights they vindicate. In other words, this is yet another gap between rights and remedies, which - as we have seen - makes translation exercises quite difficult and nuanced.
46. See Margaret J. Radin, Property and Personhood, 34 Stan. L. Rev. 957, 992, 1013(1982).
47. A similar characteristic applies regarding the way accident law makes qualitative distinctions between different types of activities based on their contingent social meanings. The claims that follow apply mutatis mutandis to this phenomenon, as the text that follows implies. See Hanoch Dagan, Qualitative Judgments and Social Meanings in Private Law: A Comment on Professor Keating, 4 Theoretical Inq. L. 89 (2003).
48. See Stephen J. Schnably, Property and Pragmatism: A Critique of Radin's Theory of Property and Personhood, 45 Stan. L. Rev. 347 (1993).
49. See Steven J. Burton, Judging in Good Faith 19-21 (1992).
50. Isaiah Berlin, Introduction, in Four Essays on Liberty at l-li (1969).
51. Usually, there is no reason to think that subjective valuations will be particularly idiosyncratic. Resources gain their significance as reflections of the self socially. People perceive certain resources as reflecting their personalities better than others, and thus attach subjective value to them because other people in society, to whom the self's external image is communicated, share with them the same symbolic understanding. Therefore, not only considerations of rule of law but also the nature of the very phenomenon of constitutive property justifies law's reference to social (objective) meanings.
52. Cf. Meir Dan-Cohen, Defending Dignity, in Harmful Thoughts: Essays on Law, Self, and Morality 150 (2002).
53. See Jeremy Waldron, The Right to Private Property 353, 364-65, 369-70, 372-73, 378, 385(1988).
54. See also Peter G. Stillman, Property, Freedom, and Individuality in Hegel's and Marx's Political Thought, 22 NOMOS 130, 135(1980).
55. See generally Joseph Raz, The Value of Practice, in Engaging Reason: On the Theory of Value and Action 202 (1999).
56. More precisely, the justification for resorting to the social meanings of resources and of activities is both (a) epistemic or pragmatic, namely: the ideals, on which the practices we have work out over time are founded, are oftentimes helpful starting points to guide us to the right values, and (b) democratic, that is: at least some part of law's authority - especially the authority of the common law - rests on the way in which its evolution is a story of articulating in doctrine the values implicit in the community's practices facing normative challenges emerging out of reallife encounters.
57. See MICHAEL WALZER, INTERPRETATION AND SOCIAL CRITICISM 22, 30, 41, 43, 46-48, 61(1987).
58. See also Margaret Jane Radin, Lacking a Transformative Social Theory: A Response, 45 STAN. L. REV. 409 (1993).
59. See Donald W. Large, This Land Is Whose Land? Changing Concepts of Land as Property, 1973 WIS. L. REV. 1039, 1040;
60. Clare Cooper, The House as Symbol of the Self, in ENVIRONMENTAL PSYCHOLOGY: PEOPLE AND THEIR PHYSICAL SETTINGS 435, 437-38 (Harold M. Proshansky et al. eds., 2d ed. 1976);
61. HERBERT MCCLOSKY & JOHN ZALLER, THE AMERICAN ETHOS: PUBLIC ATTITUDES TOWARD CAPITALISM AND DEMOCRACY 138 (1984);
62. Lynton K. Caldwell, Land and the Law: Problems in Legal Philosophy, 1986 U. ILL. L. REV. 319, 320;
63. Russell W. Belk, Possessions and the Extended Self, 15 J. CONSUMER RES. 139, 153(1988);
64. E. Doyle MaCarthy, Toward a Sociology of the Physical World: George Herbert Mead on Physical Objects, 5 STUD. SYMBOLIC INTERACTION 105, 116-17 (1984).
65. But see Stephanie M. Stern, Residential Protectionism and the Legal Mythology of the Home, 107 MICH. L. REV. 1093 (2009).
66. First clues to such a distinction can be found in Hawkes Estate v. Silver Campsites, [1994] 7 W. W. R. 709, 721 (B. C.);
67. Centex Homes Corp. v. Boag, 820 A.2d 194 (Sup. Ct. N. J. 1974).
68. See also MARGARET J. RADIN, REINTERPRETING PROPERTY 12 (1993). More generally, if land or some other resource is important to the individual because only by owning and controlling it will property ensure a stability and maturity that would not otherwise be possible, meaning that, if absent some constitutive ownership people's moral development would be seriously at risk, then property, that is, potentially constitutive property, must be available to all.
69. See WALDRON, supra note 39, at 377-78, 385-86, 429, 444.
70. Cf. RONALD DWORKIN, TAKING RIGHTS SERIOUSLY 118-23 (1977).
71. Roy Kreitner, Multiplicity in Contract Remedies, in COMPARATIVE REMEDIES FOR BREACH OF CONTRACTS 19, 19-20, 38 (Nili Cohen & Ewan McKendrick eds., 2005).
72. Kreitner identifies three recent variants of pluralism in contract theory, and offers a "pluralist statement" of the conception of contract as "an encompassing and multi-faceted institution" that has no core: "there is no one idea that encapsulates the sine qua non of contract, no nodal point from which all the instantiations of the institution of contract flow." Contract in this view is "a framework for cooperation among societ al. agents", which "serves as an infrastructure that provides a means to carry out a range of collaborative projects." This infrastructure, Kreitner adds, "provides benefits even to those who are not using it at any given moment, because it structures in productive ways the interactions (actual and potential) among past, present, and future participants."
73. * (2011).
74. The same goes for torts theory. See Christopher J. Robinette, Tort Rationales, Pluralism, and Isaiah Berlin, 14 GEO. MASON. L. REV. 325, 359-60 (2007).
75. *2 (Univ. of Chi. ed. 1979) (1765-69).
76. RESTATEMENT (FIRST) OF PROPERTY intro., §§ 1-5 (1936).
77. Thomas W. Merrill & Henry E. Smith, The Morality of Property, 48 WM. & MARY L. REV. 1849, 1850(2007).
78. See also, e.g., J. E. PENNER, THE IDEA OF PROPERTY IN LAW (1997);
79. Larissa Katz, Exclusion and Exclusivity in Property Law, 58 U. TORONTO L. J. 275 (2008).
80. I discuss these accounts elsewhere. See HANOCH DAGAN, PROPERTY: VALUES AND INSTITUTIONS chs. 2 & 3 (2011). This part draws on these chapters.
81. Merrill & Smith, supra note 51, at 1851-57, 1867, 1891-92.
82. th ed. 2007).
83. See generally DAGAN, supra note 52, at chs. 8-10.
84. Think, for example, of the frequently implicit reasons underlying doctrines dealing with leveraged buyouts, or with the conditions under which legal conflicts between owners and third parties are resolved.
85. Felix S. Cohen, Dialogue on Private Property, 9 RUTGERS L. REV. 357, 362, 370-74, 379(1954).
86. See, e.g., Kevin Gray & Susan Francis Gray, Civil Rights, Civil Wrongs and Quasi-Public Space, 1 EUR. HUM. RIGHTS L. REV. 46 (1999).
87. See DAGAN, supra note 52, at ch. 2.
88. See also, e.g., JAMES GORDLEY, FOUNDATIONS OF PRIVATE LAW: PROPERTY, TORT, CONTRACT, UNJUST ENRICHMENT 130-39 (2006), discussing the doctrine of necessity.
89. Cf. Joseph W. Singer, No Right to Exclude: Public Accommodations and Private Property, 90 NW. U. L. REV. 1283, 1303, 1466(1996).
90. General rights-based arguments for private property-such as autonomy and personhood-are distinct from two other types of arguments. as right-based arguments, they rely on an individual interest, as opposed to a collective interest; as general arguments they are distinct from special right-based arguments which rely not on the importance of an individual interest as such, but rather on a specific event. For an analysis of this distinction and its distributive implications, on which the text relies, see WALDRON, supra note 39, at 115-17, 423, 425-27, 430-39, 444-45.
91. See JEREMY WALDRON, Homelessness and the Issue of Freedom, in LIBERAL RIGHTS 309 (1993).
92. See Frank Michelman, Tutelary Jurisprudence and Constitutional Property, in LIBERTY, PROPERTY, AND THE FUTURE OF CONSTITUTIONAL DEVELOPMENT 127, 139 (Ellen Frankel Paul & Howard Dickman eds., 1990);
93. Frank I. Michelman, Possession vs. Distribution in the Constitutional Idea of Property, 72 IOWA L. REV. 1319, 1319-20 (1987).
94. This conclusion is but one manifestation of the important insight that negative liberty must always be analyzed as a means, important as it is, for people's autonomy. It should thus be curtailed when it undermines rather than serve the more fundamental value of self-determination. See H. L. A. HART, BETWEEN UTILITY AND RIGHTS, IN CHAPTERS IN JURISPRUDENCE AND PHILOSOPHY 198, 206-207 (1983);
95. WILL KYMLICKA, CONTEMPORARY POLITICAL PHILOSOPHY 120, 123-125 (1990).
96. See WALDRON, supra note 39, at 377-78, 384-86, 429, 444.
97. Cf. Margaret Jane Radin, Residential Rent Control, 15 PHIL. & PUB. AFF. 350 (1986). For another argument for the right to entry based on the Hegelian account of the personhood theory of property
98. see William N. R. Lucy & Francois R. Barker, Justifying Property and Justifying Access, 6 CAN. J. L. & JURISP. 287, 309-17 (1993).
99. Fair Housing Act, 42 U. S. C. 3601.
100. See DAGAN, supra note 52, at 48-50, 52-54.
101. As the text implies, many of the manifestations of the right to entry are often discussed in terms of public law. I do not deny such potential effect of public law considerations, though their implications in the horizontal context of private law may be different from their effect in the vertical context of public law. But I claim that at times the very same justifications for the property institutions at issue embrace these rights to entry, so that even friends of property who doubt or contest the relevance of these public law considerations can (and should) follow suit.
102. See generally Hanoch Dagan, The Limited Autonomy of Private Law, 56 AM. J. COMP. L. 809 (2008).
103. The recent revival of the Kantian conception of property follows this path. Neo-Kantians advocate a legal architecture of a rather strict division of labor between private and public law. Strong property rights and a viable welfare state, these authors claim, cluster as a matter of conceptual necessity. See ARTHUR RIPSTEIN, FORCE AND FREEDOM: KANT'S LEGAL AND POLITICAL PHILOSOPHY (2009);
104. Ernest J. Weinrib, Poverty and Property in Kant's System of Rights, 78 NOTRE DAME L. REV. 795 (2003).
105. I discuss and criticize this position in DAGAN, supra note 52, at ch. 3.
106. Cf. Avihay Dorfman, Private Ownership, 16 LEGAL THEORY 1 (2010). Dorfman's account of ownership centers on the normative status of owners vis-à-vis nonowners. Dorfman avoids the difficulty of smuggling normatively disputed claims into the conceptual analysis by arguing that the only conceptual requirement of ownership is that owners have some measure of authority.
107. This does not deny that such carefully-delineated statements as to the thin common denominator of the wide legal terrain covered by the wholesale category of property are meaningless or useless. as usual, the answer to the question of the correct level of abstraction is a function of the purpose of our inquiry. Thus, thin propositions like Cohen's may well be useful if, for example, they are invoked in the context of examining the proper boundaries of property law.
108. See DAGAN, supra note 52, at ch. 2 & 3.
109. See Hohfeld, supra note 4, at 710, 720, 733-34, 746-47.
110. See Thomas W. Merrill & Henry E. Smith, Optimal Standardization in the Law of Property: The Numerus Clausus Principle, 110 YALE L. J. 1, 9-24 (2000).
111. See JOHN RAWLS, POLITICAL LIBERALISM 298 (1993)
112. Indeed, property law supports a wide range of institutions that facilitate the economic and social gains possible from cooperation. Some of these institutions, such as a close corporation, are mostly about economic gains-securing efficiencies of economies of scale and risk-spreading-with social benefits being merely a (sometimes pleasant) side-effect. Other institutions, such as marriage, are more about the intrinsic good of being part of a plural subject, where the raison d'être of the property institution refers more to one's identity and interpersonal relationships, while the attendant economic benefits are perceived as helpful byproducts rather than the primary motive for cooperation. The underlying characters of the divergent relationships prove to be the key to explaining the particular property configuration that serves as the default for the property institution at hand.
113. See DAGAN, supra note 52, at ch. 10.
114. See ELIZABETH ANDERSON, VALUE IN ETHICS AND ECONOMICS 145 (1993).
115. See Richard A. Epstein, On the Optimal Mix of Private and Common Property, in PROPERTY RIGHTS 17 (Ellen F. Paul et al. eds., 1994).
116. See Mark A. Lemley, Ex Ante versus Ex Post Justifications for Intellectual Property, 71 U. CHI. L. REV. 129, 143(2004).
117. Cf. Gregory S. Alexander, The Concept of Property in Private and Constitutional Law: The Ideology of the Scientific Turn in Legal Analysis, 82 COLUM. L. REV. 1545, 1560-70 (1982).
118. The fact that people's understanding of property follows the rough contours of its legal structure should not be surprising. Property, like many other important social institutions, is a legal concept and thus necessarily artificial. Therefore, although law's constitutive power is undoubtedly limited, the appeal of exclusion theorists to the everyday understanding of property, which implies that the concept is independent of law, is highly problematic. See Roy Kreitner, On the use and Abuse of Blackstone, 10 THEORETICAL INQUIRIES L. FORUM, available at: http://services.bepress.com/tilforum/vol10/iss1/art1 (2009).
119. Critics of value pluralism in property tend to assume that the multiplicity of property institutions (and thus of the normative underpinnings of property) must be structured in the form of vague standards (as opposed to bright-line rules). They thus imply that a successful critique of open-endedness as a threat to legal stability undermines the position that refuses to accept exclusion as the core of property. See Henry E. Smith, Mind the Gap: The Indirect Relation between Ends and Means in American Property Law, 94 CORNELL L. REV. 959 (2009). This is false, however. One can coherently argue that we need to talk less about property and more about property institutions and yet insist that: (1) The (different) ways in which the various property values are embedded in these institutions are, or at least can and should be, rule-based (rather than affected by the equities of each particular case), so that only some legal actors, notably judges of appellate courts, occasionally use new cases as triggers for an ongoing refinement of existing rules qua rules; and (2) These rules can be reasonably founded on a contextual application of normative judgment rather than on the decision makers' subjective preferences. This allows supporters of property pluralism to actually respect property's stability and predictability
120. Cf. Gregory S. Alexander, The Complex Core of Property, 94 CORNELL L. REV. 1063, 1063-68 (2009).
121. See DAGAN, supra note 52, at ch. 1.
122. This point, interestingly enough, is one of the most important insights of the natural law tradition. See Neil MacCormick, Natural Law and the Separation of Law and Morals, in NATURAL LAW THEORY 105 (Robert P. George ed., 1992).
123. See ANDERSON, supra note 79.
124. See also JOSEPH RAZ, ETHICS IN THE PUBLIC DOMAIN: ESSAYS IN THE MORALITY OF LAW AND POLITICS 281-282, 291-304 (1994). As Raz argues, in a world of incommensurable human values, a monistic legal voice is repressive. The plurality of normative voices may thus be conducive to our collective coexistence. Raz therefore rejects coherence as an independent value while acknowledging the virtue of normative local coherence if, but only if, it derives from the normative injunction to found a given area of the law on one certain value or on a given balance among pertinent values.
125. The requirement of choice is of course crucial because the sheer multiplicity of property institutions does not serve autonomy if individuals cannot choose which institution to fall under when they form the relevant material relationship. In fact, as I explain elsewhere, the conception of property as institutions is also particularly hospitable to choice in another sense-especially where it is compared to Merrill and Smith's account-namely: its endorsement of the recent shift in property law from mandatory rules to default rules.
126. Compare DAGAN, supra note 52, at 34 to
127. Merrill & Smith, supra note 76, at 38.
128. Recall that the same conclusion applies regarding the utilitarian case for property as exclusion. See supra text accompanying notes 82-85.
129. See JOSEPH RAZ, THE MORALITY OF FREEDOM 373-77, 381, 398-99 (1986).
130. Cf. ROBERT NOZICK, ANARCHY, STATE, AND UTOPIA 309-12 (1974).
131. In other words, the practical payoff of discarding property monism in favor of property pluralism lies in the fact that the latter approach situates the normative inquiries regarding property law at the correct level. Thus, on the one hand, it resists smuggling normatively disputed claims by way of a purportedly-conceptual presumption, and on the other hand it structures these normative inquiries so that they properly address both the social context and the nature of the resource.
132. See Hanoch Dagan, Legal Realism and The Taxonomy of Private Law, in STRUCTURE AND JUSTIFICATION IN THE PRIVATE LAW 147, 162-63 (Charles Rickett & Ross Grantham eds., 2008).