Sunday, February 12, 2006

Bundles of sticks and mineral rights -- chopping property

On the subject of disaggregating property rights, there are three articles I know of that attack the infinite divisibility of property into sticks. Thomas C. Grey, The Disintegration of Property in XXII Nomos 69, argues that chopping property up into too-fine parcels destroys its intelligibility as a category. Carol Rose has noted in her book Property and Persuasion (which I have not read) that the bundle-of-sticks metaphor does violence to the idea that certain central characteristics of property are more important than the easily lopped-off parts. Finally Merrill and Smith argue in The Optimal Standardization in the Law of Property, 110 Yale L J 1 (2000), that the usefulness of property depends on its standardization of expectations, and that chopping it up can make property, in fact, more of a hindrance than a help.

Read these and impress Ellickson. I can never remember any of this stuff. I do think this is another example of how modern analysis frequently misses the telos of a concept. From Legal Realism, Legal Formalism, and the Interpretation of Statutes and the Constitution, 37 Case W. Res. 179, Posner:
If you take the legs off of a table (permanently -- not just for storage or moving), it is no longer a table. But it doesn't follow that if you don't have an acceptance you don't have a contract. A contract is just a promise that courts will enforce, and if there is a good policy reason for doing so they can decide to enforce a promise even though it was not consciously accepted. Nor is it a good reply that a contract without acceptance is like a table missing only one leg; that no essential, defining characteristic of the concept of contract is missing, as would be the case if there were neither offer nor acceptance. What should count as the essential, defining characteristics of contract is not a semantic question; it is a policy question. We may enforce any promise we want, and call it a contract, just as we can punish a drug dealer for his agent's possession of illegal drugs by saying that the dealer has "constructive" possession.
This is a perfect example of the anti-essentialist position. And I think it truly screws with the idea of contract. No doubt some small things can come and go; but without acceptance, the central moral power that does the work of contract is missing. Treating it as optional is to miss the boat.


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