On the economy of concepts in property

University of Pennsylvania Law Review

Volumn 160, Issue 7, 2012, Pages 2097-2128

  Smith, Henry E ^a  

^a HARVARD LAW SCHOOL   (United States)

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EID: 84864050547     PISSN: 00419907     EISSN: 19428537     Source Type: Journal    
DOI: None     Document Type: Review

References (133)

1. ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 402 (J. P. Mayer & Max Lerner eds., George Lawrence trans., Harper & Row 1966) (1835).
2. See, e.g., 1 FRIEDRICH A. HAYEK, LAW, LEGISLATION AND LIBERTY: RULES AND ORDER 44 (1973) [hereinafter Hayek, Rules and Order] (arguing that the abstraction of general rules leads "individuals to behave in a manner which makes social life possible");
3. FRIEDRICH A. HAYEK, THE CONSTITUTION OF LIBERTY 149 (1960) (explaining that unconsciously abstracted rules guide individual interactions and avoid a "trial of strength").
4. HAYEK, RULES AND ORDER, supra note 2, at 84-88, 94-95, 104-05, 118.
5. See generally Ronald Hamowy, F. A. Hayek and the Common Law, 23 CATO J. 241, 252 (2003) (arguing that even in its early history, the common law would not have survived if not supplemented with equitable standards);
6. John Hasnas, Hayek, the Common Law, and Fluid Drive, 1 N. Y. U. J. L. & LIBERTY 79, 104 (2005) (arguing that the common law, as opposed to customary law, requires judges to "consciously creat[e] rules").
7. For examples of sources in linguistics discussing intensionality, see GENNARO CHIERCHIA & SALLY MCCONNELL-GINET, MEANING AND GRAMMAR: AN INTRODUCTION TO SEMANTICS 257-328 (2d ed. 2000)
8. DAVID R. DOWTY ET AL., Introduction to Montague Semantics 141-78 (1981)
9. Richard Montague, The Proper Treatment of Quantification in Ordinary English, in APPROACHES TO NATURAL LANGUAGE: PROCEEDINGS OF THE 1970 STANFORD WORKSHOP ON GRAMMAR AND SEMANTICS 221, 228-32 (K. J. J. Hintikka et al. eds., 1973)
10. and Robert Stalnaker, Propositions, in ISSUES IN THE PHILOSOPHY OF LANGUAGE: PROCEEDINGS OF THE 1972 OBERLIN COLLOQUIUM IN PHILOSOPHY 79 (Alfred F. MacKay & Daniel D. Merrill eds., 1976).
11. This example goes back to Frege, who provided the philosophical roots of intensional logic. See Gottlob Frege, On Sinn and Bedeutung (Max Black trans.) (translating Gottlob Frege, Über Sinn und Bedeutung, 100 ZEITSCHRIFT FÜR PHILOSOPHIE UND PHILOSOPHISCHE KRITIK 25 (1892))
12. in THE FREGE READER 151, 156 (Michael Beaney ed., 1997).
13. Wesley Newcomb Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, 23 YALE L. J. 16, 58 (1913) (internal quotation marks omitted).
14. See Wesley Newcomb Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning, 26 YALE L. J. 710, 718-23 (1917) (reducing "in rem-ness" to the numerosity of the duty holders).
15. See Albert Kocourek, Rights in Rem, 68 U. PA. L. REV. 322, 335 (1920) (arguing that a definition of in rem should not be "based on" the characteristic of the large "number of persons who owe duties corresponding to rights in rem" because such a requirement is "not essential").
16. Arthur L. Corbin, Jural Relations and Their Classification, 30 YALE L. J. 226, 228-30 (1921).
17. See, e.g., 2 JOHN AUSTIN, LECTURES ON JURISPRUDENCE OR THE PHILOSOPHY OF POSITIVE LAW 799 (Robert Campbell ed., 5th ed. London, John Murray 1885) ("[I]ndefiniteness is of the very essence of the right; and implies that the right⋯ cannot be determined by exact and positive circumscription. ").
18. See, e.g., Felix S. Cohen, Transcendental Nonsense and the Functional Approach, 35 COLUM. L. REV. 809, 820 (1935) ("In every field of law we should find peculiar concepts which are not defined either in terms of empirical fact or in terms of ethics but which are used to answer empirical and ethical questions alike, and thus bar the way to intelligent investigation of social fact and social policy.").
19. Compare MORTON WHITE, SOCIAL THOUGHT IN AMERICA: THE REVOLT AGAINST FORMALISM 12-13 (Beacon Press 1957) (1947) (tracing the various attacks historically levied against formalism)
20. with Hanoch Dagan, The Realist Conception of Law, 57 U. TORONTO L. J. 607, 611-12 (2007) (characterizing classical formalism as viewing law as "composed of concepts and rules").
21. Francis Heylighen, Advantages and Limitations of Formal Expression, 4 FOUND. SCI. 25, 26-27 (1999).
22. Cf. Douglas Glen Whitman, The Rules of Abstraction, 22 REV. AUSTRIAN ECON. 21, 23-28 (2009) (explaining that we rely upon intermediate abstraction, particularly in the law, to "deal with⋯ complexity by filtering it, deeming some features relevant while ignoring others"). One can regard concepts as components of modular systems: the concept suppresses some information in order to manage complexity. See infra Section II. C.
23. See, e.g., Holbrook v. Taylor, 532 S. W.2d. 763, 766 (Ky. 1976) (relying on the doctrine of easement by estoppel to allow the use of a roadway, despite the owner's right to exclude). These exceptions generally arise in the context of more specific facts, so they are closer to the governance end of the spectrum of strategies for delineating property rights.
24. See Henry E. Smith, Exclusion Versus Governance: Two Strategies for Delineating Property Rights, 31 J. LEGAL STUD. S453, S467-70 (2002) (discussing the spectrum of property rules with exclusion on one end and governance on the other).
25. See, e.g., HANOCH DAGAN, PROPERTY: VALUES AND INSTITUTIONS 38-42 (2011) (critiquing the exclusionary conception of property for its failure to "bear[] any resemblance to the law of property as lawyers know it or, even more importantly, as citizens experience it in everyday life");
26. Gregory S. Alexander, The Social-Obligation Norm in American Property Law, 94 CORNELL L. REV. 745, 747, 774 (2009) (calling the exclusionist account misleading and advocating an alternative theory centered on social obligations);
27. see also Jane B. Baron, The Contested Commitments of Property, 61 HASTINGS L. J. 917, 940 (2010) (contrasting information theorists' and progressive theorists' stances on the importance of exclusion to the notion of property).
28. See Henry E. Smith, Emergent Property, in PHILOSOPHICAL FOUNDATIONS OF PROPERTY LAW (James Penner & Henry E. Smith eds., forthcoming 2013).
29. See generally Henry E. Smith, Institutions and Indirectness in Intellectual Property, 157 U. PA. L. REV. 2083, 2090-101 (2009).
30. Although it goes well beyond what I can demonstrate here, a larger question this thesis raises is whether both the mind and property law are pushed toward economizing on information by evolutionary pressures-that is, success in the environment in which each operates. At least it would appear that many systems that manage complexity this way are well adapted to their environments. For examples in the field of economics, see THE ELGAR COMPANION TO INSTITUTIONAL AND EVOLUTIONARY ECONOMICS (Geoffrey M. Hodgson et al. eds., 1994)
31. and Armen A. Alchian, Uncertainty, Evolution, and Economic Theory, 58 J. POL. ECON. 211 (1950).
32. See, e.g., BASC. VAN FRAASSEN, THE SCIENTIFIC IMAGE 87 (1980) ("When a theory is advocated, it is praised for many features other than empirical adequacy and strength: it is said to be mathematically elegant, simple, of great scope, complete in certain respects: also of wonderful use in unifying our account of hitherto disparate phenomena, and most of all, explanatory." (first emphasis added)).
33. More technically, we are looking for the theory whose description can be generated by the shortest program in a binary language on a universal computer-the one with the least Kolmogorov complexity. MING LI & PAUL VITÁNYI, AN INTRODUCTION TO KOLMOGOROV COMPLEXITY AND ITS APPLICATIONS 319 (2d ed. 1997);
34. see also JORMA RISSANEN, STOCHASTIC COMPLEXITY IN STATISTICAL INQUIRY 6-10, 79-92 (1989) (discussing Minimum Descriptive Length). Interestingly, something like this idea is implicit in the work of the great Indian grammarian of the fourth century B. C., Pā n. ini.
35. See Paul Kiparsky, Economy and the Construction of the Sivasutras ("Economy requires making the list as short as possible, which means avoiding repetitions of sounds, and using as few markers as possible."), in PĀN. INIAN STUDIES: PROFESSOR S. D. JOSHI FELICITATION VOLUME 239, 240 (Madhav M. Deshpande & Saroja Bhate eds., 1991);
36. Henry Smith, Brevity in Pān. ini, 20 J. INDIAN PHIL. 133, 136 (1992) (noting that, for Pā nini, "[b]revity seems to take precedence" in the statement of grammatical rules);
37. see also Paul Kiparsky, Stanford Univ., Pān. ini's Razor, Presentation at the Symposium on Sanskrit and Computational Linguistics 14 (Oct. 29, 2007), available at http://www.stanford.edu/~kiparsky/Papers/paris.pdf (linking the thoughts of Pan. ini to Kolmogorov complexity).
38. See, e.g., Morris Halle, Phonology in Generative Grammar, 18 WORD 54, 55-56 (1962) (applying a simplicity criterion to decide between expressions of a statement of generative grammar)
39. reprinted in THE STRUCTURE OF LANGUAGE 334, 335 (J erry A. Fodor & Jerrold J. Katz eds., 1964).
40. NOAM CHOMSKY, THE LOGICAL STRUCTURE OF LINGUISTIC THEORY 118 (1975).
41. This example is drawn from Noam Chomsky & Morris Halle, Some Controversial Questions in Phonological Theory, 1 J. LINGUISTICS 97, 101 (1965).
42. The nature of the rules involved, if any, is a subtler question, because the reluctance to accept an isolated sequence like bn-could be a statistical generalization from the lexicon or be based on analogy. For discussion and some experimental evidence in favor of a version of structural rules, see Adam Albright & Bruce Hayes, Rules vs. Analogy in English Past Tenses: A Computational/Experimental Study, 90 COGNITION 119 (2003). Grammaticality judgments have their limits as data but can be supplemented by data of relative preference of one unattested sequence over another, such as blick over bzick.
43. See generally CARSON T. SCHÜTZE, THE EMPIRICAL BASE OF LINGUISTICS: GRAMMATICALITY JUDGMENTS AND LINGUISTIC METHODOLOGY (1996);
44. Adam Albright, Natural Classes Are Not Enough (Oct. 16, 2007) (unpublished manuscript), available at http://web.mit.edu/albright/www/papers/ Albright-BiasedGeneralization.pdf.
45. John Manning dubs the principle that "the specific governs the general" the "specificity maxim." John F. Manning, Separation of Powers as Ordinary Interpretation, 124 HARV. L. REV. 1939, 2012 (2011). The principle is also well known in contractual interpretation.
46. See, e.g., Smoot v. United States, 237 U. S. 38, 42 (1915) (Holmes, J.) ("In general, specific or individual marks prevail over generic ones.");
47. DCV Holdings, Inc. v. Conagra, Inc., 889 A.2d 954, 961 (Del. 2005) ("Specific language in a contract controls over general language, and where specific and general provisions conflict, the specific provision ordinarily qualifies the meaning of the general one.").
48. See, e.g., JOHN H. HOLLAND ET AL., INDUCTION: PROCESSES OF INFERENCE, LEARNING, AND DISCOVERY 18-19 (1989) (discussing the use of default hierarchies in a knowledge structure and providing examples of how defaults avoid overwhelming a computational system);
49. Marco Dorigo, New Perspectives About Default Hierarchies Formation in Learning Classifier Systems (noting that "default hierarchies" allow models to be built with fewer total rules), in TRENDS IN ARTIFICIAL INTELLIGENCE: 2ND CONGRESS OF THE ITALIAN ASSOCIATION FOR ARTIFICIAL INTELLIGENCE 218, 221-22 (Edoardo Ardizzone et al. eds., 1991).
50. This is the central example in STEVEN PINKER, WORDS AND RULES: THE INGREDIENTS OF LANGUAGE 13-19 (1999).
51. Case marking is a dramatic example in linguistics of a phenomenon that can be modeled with nested default rules. HENRY SMITH, RESTRICTIVENESS IN CASE THEORY (1996). Thus, Modern English, with very little case, could be analyzed as having the nominative case as the default case. It is used for subjects (She runs) and for apposition (It is he). The objective case is more specific, being used for objects of verbs and prepositions (The dog bites him, The cat is with her). The point is that case marking can be captured by a theory that posits rules of varying generality where the specific rule trumps more general ones in environments where more than one rule might apply. A telling controversy arose in the nineteenth century about how to analyze the accusative case in Vedic Sanskrit. Carl Gaedicke analyzed it as serving no particular function other than capturing functions not fulfilled by other cases.
52. See CARL GAEDICKE, DER ACCUSATIV IM VEDA 22, 52-181 (Breslau, Verlag von Wilhelm Koebner 1880) presenting the accusative case as the default case in Vedic Sanskrit). William Dwight Whitney, meanwhile, objected to defining the accusative as the default case, arguing that such a moniker could apply to any case.
53. W. D. Whitney, On Delbrück's Vedic Syntax, 13 AM. J. PHILOLOGY 271, 285-86 (1892). Whitney is technically correct, but not all such formulations would be equally simple-that is, short-in the agreed-upon meta-language. See Smith, supra, at 39-40.
54. See Herbert A. Simon, The Architecture of Complexity, 106 PROC. AM. PHIL. SOC'Y 467, 477 (1962) ("The fact⋯ that many complex systems have a nearly decomposable, hierarchic structure is a major facilitating factor enabling us to understand, to describe, and even to 'see' such systems and their parts.").
55. See generally CHRISTOPHER ALEXANDER ET AL., A PATTERN LANGUAGE: TOWNS, BUILDINGS, CONSTRUCTION (1977) (outlining various "patterns" of livability to illuminate potential solutions to various social problems).
56. Cf. NOAM CHOMSKY, SYNTACTIC STRUCTURES 24 (1957) (discussing the hierarchy that any linguistic theory requires).
57. See, e.g., William Marslen-Wilson & Lorraine Komisarjevsky Tyler, Against Modularity (rejecting the understanding of "special properties of language" as a distinct "module" and arguing for the inclusion of inferences deriving from "nonlinguistic knowledge"), in MODULARITY IN KNOWLEDGE REPRESENTATION AND NATURAL-LANGUAGE UNDERSTANDING 37, 58 (J ay L. Garfield ed., 1991).
58. JERRY A. FODOR, THE MODULARITY OF MIND 37 (1983).
59. See, e.g., WILLIAM R. UTTAL, THE NEW PHRENOLOGY: THE LIMITS OF LOCALIZING COGNITIVE PROCESSES IN THE BRAIN 89-146 (2001) (noting difficulties with the argument that cognitive functions may be localized in particular parts of the brain);
60. David J. Buller, Get Over: Massive Modularity, 20 BIOLOGY & PHIL. 881, 885 (2005)
61. (reviewing EVOLUTION AND THE PSYCHOLOGY OF THINKING: THE DEBATE (David E. Over ed., 2003)) (suggesting that the massive modularity hypothesis may not be "a theoretically viable hypothesis about the structure of the mind."). In some sense, even Fodor is in this camp. See generally Fodor, supra note 53, at 38 (noting that modularity may be limited to specific parts of the mind).
62. For an accessible introduction to modularity in cognitive theory that argues that evolution only acts to connect modules if it leads to better functioning, see ROBERT KURZBAN, WHY EVERYONE (ELSE) IS A HYPOCRITE: EVOLUTION AND THE MODULAR MIND 50 (2010).
63. For an argument that although modules are rigid the mind can be flexible, see Dan Sperber, Modularity and Relevance: How Can a Massively Modular Mind Be Flexible and Context-Sensitive?, in THE INNATE MIND: STRUCTURE AND CONTENTS 53, 57 (Peter Carruthers et al. eds., 2005).
64. See generally THOMAS W. MERRILL & HENRY E. SMITH, PROPERTY: PRINCIPLES AND POLICIES 684-829 (2007) (discussing entity property).
65. See generally 1 CARLISS Y. BALDWIN & KIM B. CLARK, DESIGN RULES (2000) (characterizing complex systems and changes as ultimately composed of simpler ones);
66. MANAGING IN THE MODULAR AGE: ARCHITECTURES, NETWORKS, AND ORGANIZATIONS (Raghu Garud et al. eds., 2003) (exploring and comparing modularity in technology and organizational settings);
67. Richard N. Langlois, Modularity in Technology and Organization, 49 J. ECON. BEHAV. & ORG. 19, 32-34 (2002) (noting increased modularity in American industries, such as the automobile industry);
68. Ron Sanchez & Joseph T. Mahoney, Modularity, Flexibility, and Knowledge Management in Product and Organization Design, 17 STRATEGIC MGMT. J. 63, 64 (1996) (analyzing product design and organizational processes for developing products through the prism of the structural conception of hierarchy in complex systems).
69. See Yoram Barzel, Measurement Cost and the Organization of Markets, 25 J. L. & ECON. 27, 40-42 (1982) (highlighting the role of various institutional actors in overcoming the challenge of measuring asset values in a complex market system).
70. 1 ADAM SMITH, AN INQUIRY INTO THE NATURE A ND CAUSES OF THE WEALTH OF NATIONS 477 (Edwin Cannan ed., Univ. of Chi. Press 1976) (1776).
71. See F. A. Hayek, The Use of Knowledge in Society, 35 AM. ECON. REV. 519, 524-26 (1945) (arguing that markets enable the employment of widely dispersed information).
72. See Henry E. Smith, Property and Property Rules, 79 N. Y. U. L. Rev. 1719, 1767 (2004) ("[T]he use of exclusion together with a property rule sweeps a broad class of uses into the definition of the entitlement."). This theory differs from those that see the right to exclude as the sine qua non of property.
73. See, e.g., Thomas W. Merrill, The Property Strategy, 160 U. PA. L. REV. 2061, 2066 (2012) ("[T]he owner's right to exclude is a necessary condition of identifying something as being property."). It also differs in emphasis from theories that posit a necessarily tighter connection between the mechanism of delineation and the interests in use.
74. See, e.g., RICHARD A. EPSTEIN, TAKINGS: PRIVATE PROPERTY AND THE POWER OF EMINENT DOMAIN 61 (1985) ("Linking rights of possession, use, and disposition into a single bundle of rights offers powerful utilitarian advantages.");
75. Larissa Katz, Exclusion and Exclusivity in Property Law, 58 U. TORONTO L. J. 275, 290 (2008) ("Ownership's defining characteristic is that it is the special authority to set the agenda for a resource.");
76. Adam Mossoff, What is Property? Putting the Pieces Back Together, 45 ARIZ. L. REV. 371, 397-403 (2003) (noting the centrality of possessory rights, such as exclusion, use, enjoyment, and alienation, to the concept of property).
77. The full statement of the maxim is cujus est solum, ejus est usque ad coelum et ad inferos ("he who owns the soil owns also to the sky and to the depths"). The maxim is routinely followed in resolving issues about ownership of air rights, building encroachments, overhanging tree limbs, mineral rights, and so forth, and is subject to certain limited exceptions, for example, for airplane overflights. See Brown v. United States, 73 F.3d 1100, 1103-04 (Fed. Cir. 1996) (explaining that "the advent of human flight" justifies an exception to the common law rule);
78. THOMAS W. MERRILL & HENRY E. SMITH, The Oxford Introductions to U. S. Law: Property 31-32, 57-58 (2010) (reviewing the principle of, and modern exceptions to, ad coelum);
79. Henry E. Smith, Exclusion and Property Rules in the Law of Nuisance, 90 VA. L. REV. 965, 992 (2004) (noting the heavier reliance of the law of trespass on the physical boundaries of parcels, as defined by the ad coelum rule, as compared to the law of nuisance).
80. See J. E. PENNER, THE IDEA OF PROPERTY IN LAW 75-76 (1997).
81. Henry E. Smith, Intellectual Property as Property: Delineating Entitlement in Information, 116 YALE L. J. 1742, 1806-07 (2007) (noting the parallel concepts in use in intellectual property law).
82. The Realists were fans of von Jhering's sarcastic dismissal of Savigny's legal metaphysics as a "heaven of legal concepts." Rudolf von Jhering, In the Heaven of Legal Concepts, in READINGS IN JURISPRUDENCE AND LEGAL PHILOSOPHY 678, 679 (Morris R. Co-Cohen & Felix S. Cohen eds., Edith Lowenstein trans., 1951).
83. In similar fashion, a firm is a nexus of contracts, but the firm has special modular bundling features that are only achievable by contract under the property-like aspect of organizational law. The asset-partitioning theory of the firm can be interpreted as an example of using modularity to manage complexity. Cf. Henry Hansmann & Reinier Kraakman, The Essential Role of Organizational Law, 110 YALE L. J. 387, 390 (2000) (arguing that asset-partitioning is not achievable by contract, making it the "essential role" of organizational law).
84. See, e.g., Aaron Clauset et al., Finding Community Structure in Very Large Networks, 70 PHYSICAL REV. E 066111-1 (2004) (determining community structure within a network based on Amazon. com purchase data);
85. M. E. J. Newman, Modularity and Community Structure in Networks, 103 PROC. NAT'L ACAD. SCI. 8577, 8578-79 (2006) (proposing a modularity matrix for community detection);
86. Henry E. Smith, Community and Custom in Property, 10 THEORETICAL INQUIRIES L. 5, 24-34 (2009) (discussing the importance of strong ties in effective custom-based property law).
87. For an engaging introduction that describes recursion through real-life examples, see DOUGLAS R. HOFSTADTER, GÖDEL, ESCHER, BACH: AN ETERNAL GOLDEN BRAID 127-57 (1979).
88. For another introduction, see generally JOSEPH R. SHOENFIELD, RECURSION THEORY (1993).
89. See, e.g., Marc D. Hauser, Noam Chomsky, & W. Tecumseh Fitch, The Faculty of Language: What Is It, Who Has It, and How Did It Evolve?, 298 SCIENCE 1569, 1577 (2002) ("It is a foundational observation of modern generative linguistics that, to capture natural language, a grammar must include [a capacity for recursion].");
90. Steven Pinker & Ray Jackendoff, The Faculty of Language: What's Special About It?, 95 COGNITION 201 (2005) (explaining the role of recursion in language).
91. But see Daniel L. Everett, Cultural Constraints on Grammar and Cognition in Pirahã: Another Look at the Design Features of Human Language, 46 CURRENT ANTHRO. 621 (2005) (questioning recursion's centrality in linguistics by way of an example language that lacks it).
92. See generally RECURSION AND HUMAN LANGUAGE (Harry van der Hulst ed., 2010).
93. The need for recursion in syntax and the creativeness of language is a loose and suggestive relationship, contrary to a common assumption among linguists. See Geoffrey K. Pullum & Barbara C. Scholz, Recursion and the Infinitude Claim, in RECURSION AND HUMAN LANGUAGE, supra note 81, at 113, 118-24 (refuting the "Standard Argument").
94. See, e.g., IVAN A. SAG & THOMAS WASOW, SYNTACTIC THEORY: A FORMAL INTRODUCTION 36, 259 (1999) (describing the recursion of prepositional phrases and thatclauses).
95. Henry E. Smith, Standardization in Property Law ("Property rights can be standardized because they combine recursively⋯."), in Research Handbook on the Economics of Property Law 148, 152-53 (Kenneth Ayotte & Henry E. Smith eds., 2011).
96. See 4 AMERICAN LAW O F PROPERTY § 17.10 (A. James Casner ed., 1952).
97. See U. C. C. § 2-403 (1) (2011) ("A PERSON WITH VOIDABLE TITLE HAS POWER TO TRANSFER A GOOD TITLE TO A GOOD FAITH PURCHASER FOR VALUE.").
98. THE MARKET OVERT RULE ALLOWS A GOOD FAITH PURCHASER TO BEAT THE ORIGINAL TITLE HOLDER, EVEN WITH A THIEF IN THE CHAIN OF TITLE, IF THE PURCHASER BOUGHT IN AN OPEN MARKET, (I. E., FROM A MERCHANT DEALER OPENLY DISPLAYING THE GOODS). SEE, E. G., CODE CIVIL [C. civ.] art. 2277 (Fr.) (requiring the original owner to pay the purchaser the purchase price to regain item the item if bought in open market), translation available at http://www.legifrance.gouv.fr/content/ download/1950/13681/version/3/file/Code-22.pdf (listed in translation at art. 2280);
99. BÜRGERLICHES GESETZBUCH [BGB] [CIVIL CODE], Aug. 18, 1896, as amended, § 935, para. 2 (Ger.) (allowing someone that purchases an item at public auction to retain ownership even if the item was stolen), translation available at http://www.gesetze-im-internet.de/englisch-bgb/englisch-bgb.html. The French and German rules are broader than the American rule, which requires that the original owner have entrusted the goods to a merchant dealing in "goods of that kind."
100. U. C. C. § 2-403 (2);
101. ("Any entrusting of possession of goods to a merchant who deals in goods of that kind gives him power to transfer all rights of the entruster to a buyer in ordinary course of business."). For a summary of various jurisdictions' approaches to this question, see Alan Schwartz & Robert E. Scott, Rethinking the Laws of Good Faith Purchase, 111 COLUM. L. REV. 1332, 1378, 1380, 1382 (2011).
102. For a survey of ancient and modern treatment of the good faith purchaser rule, see Saul Levmore, Variety and Uniformity in the Treatment of the Good-Faith Purchaser, 16 J. LEGAL STUD. 43, 49-65 (1987).
103. See Henry E. Smith, Response, Mind the Gap: The Indirect Relation Between Ends and Means in American Property Law, 94 CORNELL L. REV. 959, 963-65 (2009) (arguing that property serves interests in use indirectly through exclusion and more directly through governance such that conceptualizing property as based in exclusion with various exceptions does not diminish the importance of the exceptions).
104. See United States v. Causby, 328 U. S. 256, 261 (1946) ("[The ad coelum] doctrine has no place in the modern world⋯.").
105. See K. N. Llewellyn, Through Title to Contract and a Bit Beyond, 15 N. Y. U. L. Q. Rev. 159, 169 (1938) ("[Title] remains, in the Sales field, an alien lump, undigested.").
106. Henry E. Smith, Rose's Human Nature of Property, 19 WM. & MARY BILL RTS. J. 1047, 1050 (2011);
107. see also Henry E. Smith, An Economic Analysis of Law Versus Equity 17-18 (May 30, 2011) (unpublished manuscript) (on file with author) [hereinafter Smith, Law Versus Equity] (showing "that equity is a coherent mode of decision making in which features work together to combat opportunistic behavior that undermines the modular structures of the common law").
108. See, e.g., F. W. MAITLAND, EQUITY 19 (A. H. Chaytor & W. J. Whittaker eds., 1929) ("Equity was not a self-sufficient system, at every point it presupposed the existence of common law. Common law was a self-sufficient system⋯. Equity without common law would have been a castle in the air, an impossibility.").
109. See, e.g., Pardee v. Camden Lumber Co., 73 S. E. 82, 83 (W. Va. 1911) (noting that the "chief restraint" on a court's revisiting a legal rule is that it not "disturb[] property rights");
110. Charles M. Gray, The Boundaries of the Equitable Function, 20 AM. J. LEGAL HIST. 192, 202-06 (1976) (illustrating how courts of equity were supposed to refrain from declaring property rights).
111. Common law lawyers were always skeptical that equity could be cabined, as famously captured by Selden's quip about the Chancellor's foot: Equity is a Roguish thing, for Law we have a measure, know what to trust to, Equity is according to the Conscience of him that is Chancellor, and as that is larger or narrower, so is Equity. 'Tis all one as if they should make the Standard for the measure, a Chancellors Foot, what an uncertain measure would this be? One Chancellor has a long Foot, another a short Foot, a Third an indifferent Foot: 'Tis the same thing in the Chancellors Conscience. JOHN SELDEN, TABLE-TALK: BEING THE DISCOURSES OF JOHN SELDEN, Esq. 18 (London, E. Smith 1689). Recently, Douglas Laycock has argued that the irreparable injury rule presents no constraint on the issuance of injunctions.
112. See, e.g., DOUGLAS LAYCOCK, THE DEATH OF THE IRREPARABLE INJURY RULE 106 (1991) ("[C]ourts do not deny specific relief because of the irreparable injury rule alone. There is always another reason. ").
113. (discussing equity's ability to "soften the remedy" in specific cases to avoid socially wasteful behavior). Part of the problem is the modern lack of understanding of the undue hardship defense. See generally Douglas Laycock, The Neglected Defense of Undue Hardship (and the Doctrinal Train Wreck in Boomer v. Atlantic Cement), 4 J. TORT L., no. 3, 2012, at 1, 4-5 (outlining the complexity of the undue hardship defense in the encroachment and nuisance contexts).
114. See, e.g., Golden Press, Inc. v. Rylands, 235 P.2d 592, 595 (Colo. 1951) ("A study of many decisions discloses no specific and universally-accepted rule as to encroachments.").
115. See, e.g., Pile v. Pedrick, 31 A. 646 (Pa. 1895) (granting an injunction for a permanent trespass).
116. See Rylands, 235 P.2d at 595 ("[W]here the encroachment was in good faith, we think the court should weigh the circumstances so that it shall not act oppressively.");
117. RESTATEMENT (THIRD) OF RESTITUTION AND UNJUST ENRICHMENT § 10 (2011) (providing that a mistaken improver "has a claim in restitution as necessary to prevent unjust enrichment");
118. RESTATEMENT (FIRST) OF RESTITUTION: QUASI CONTRACTS AND CONSTRUCTIVE TRUSTS § 42 (1) (1937) (providing that, in the case of a building encroachment, where a trespasser's "mistake was reasonable", the plaintiff is entitled to an injunction only if she compensates the defendant to the extent that her land was "increased in value" by the encroachment);
119. see also Kelvin H. Dickinson, Mistaken Improvers of Real Estate, 64 N. C. L. REV. 37, 42-49 (1985) (discussing the range of relief available to mistaken improvers).
120. Rylands, 235 P.2d at 595.
121. See CHRISTOPHER ST. GERMAN, DOCTOR AND STUDENT 94-107 (T. F. T. Plucknett & J. L. Barton eds., 1974) (discussing the function of equity as a corrective principle).
122. ARISTOTLE, THE NICOMACHEAN ETHICS 317 (H. Rackham trans., Harvard Univ. Press 1982);
123. see also, e.g., Riggs v. Palmer, 22 N. E. 188, 189 (N. Y. 1889) (quoting Aristotle for the proposition that equity prevents exceptionally strained applications of rigid rules of law);
124. Eric G. Zahnd, The Application of Universal Laws to Particular Cases: A Defense of Equity in Aristotelianism and Anglo-American Law, 59 LAW & CONTEMP. PROBS. 263, 270-75 (1996) (documenting the influence of Aristotelian equity on the development of Anglo-American law).
125. But cf. Darien Shanske, Comment, Four Theses: Preliminary to an Appeal to Equity, 57 STAN. L. REV. 2053, 2066-68 (2005) (arguing that Aristotle's equity was not primarily legal but instead a "personal virtue").
126. See supra note 103; see also Dennis Klimchuk, Is the Law of Equity Equitable in Aristotle's Sense? 4 (June 2011) (unpublished manuscript), available at http://www.law.ucla.edu/workshops-colloquia/Documents/Klimchuk. %20Is%20the%20Law%20of%20Equity%20Equitable%20in%20Aristotles%20Sense.pdf ("Correction is sometimes necessary because all law is universal and, owing to its universality, can lead to error in particular cases.").
127. ("The legal conventions encapsulated in property law⋯ do not merely supply an assortment of disconnected choices. Rather,⋯ they offer a repertoire that responds to various forms of valuable human interaction. "); Nestor M. Davidson, Standardization and Pluralism in Property Law, 61 VAND. L. REV. 1597, 1638 (2008) (supporting the pluralist approach to property that first demands "recogni[tion] of the influence of a diversity of institutions, communities, and corresponding perspectives and "then seeks to draw meaning from that mosaic");
128. Emily Sherwin, Two-and Three-Dimensional Property Rights, 29 ARIZ. ST. L. J. 1075, 1082 (1997) (treating property "as a social institution, justified by the advantages that the institution of property rights provides to all").
129. For a defense of pragmatic holism, see Bruce Edmonds, Pragmatic Holism (or Pragmatic Reductionism), 4 FOUND. SCI. 57(1999), which suggests that "a very similar range of issues⋯ face both the in-principle reductionists and the in-principle holist."
130. See Henry E. Smith, Modularity and Morality in the Law of Torts, 4 J. TORT L., no. 2, 2011, at 1, 16-28 (analyzing the modularity of four common issues in tort law).
131. Thomas W. Merrill & Henry E. Smith, The Morality of Property, 48 WM. & MARY L. REV. 1849, 1852-66 (2007) (discussing the moral and economic dimensions of in rem rights).
132. ("[T]he language of transcendental nonsense⋯ is entirely useless when we come to study, describe, predict, and critique legal phenomena."); Roscoe Pound, Mechanical Jurisprudence, 8 COLUM. L. REV. 605 (1908) (criticizing a conception of the law as a set of rigid rules applied in a "scientific" way);
133. see also Thomas C. Grey, Langdell's Orthodoxy, 45 U. PITT. L. REV. 1, 9 n. 28 (1983) ("The indirect effect of category-assignments and the ideological importance of legal categorical schemes have been neglected both by advocates and by legal scholars.").