John Humbach, ‘Property As Prophesy: Legal Realism and the Indeterminacy of Ownership’

Abstract:
Property law is, like all law, is indeterminate. This means that ownership itself is indeterminate, including the ownership of valuable works of art. Every owner is vulnerable to challenges based on unexpected legal rules or, even, newly-created ones. Even the most seemingly secure rights can be defeated or compromised if a clever enough lawyer is retained to mount a challenge. The casebooks used in first-year property courses are, essentially, compendia of examples. In the case of particularly valuable property, such as art works, the motivation to fashion arguments to support such challenges is obvious. Short and strictly interpreted statutes of limitations can mitigate this risk of ownership by cabining the timeframes from which title challengers can draw facts on which predicate their claims.

Humbach, John A, Property As Prophesy: Legal Realism and the Indeterminacy of Ownership (August 31, 2017). Case Western Reserve Journal of International Law, volume 49, 2017

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