Henry Smith, ‘On the Economy of Concepts in Property’

Abstract:
Legal concepts, like concepts generally, help economize on information. Conventional wisdom is correct to associate conceptualism with formalism, but misunderstands the role concepts play in law. Commentators from the Legal Realists onward have paid insufficient attention to the distinction between intensions – functions from worlds to categories – and extensions – the categories themselves. Concepts that pick out the same category can differ greatly in terms of information costs. This Article applies some tools of cognitive science to explore the economics of legal concepts. As in cognitive science, we expect simplicity of description and generality of explanation to coincide. Specifically, both the mind and the law can be regarded as information-processing devices that manage complexity and economize on information by employing concepts and rules, the specific-over-general principle, modularity, and recursiveness. These devices work in tandem to produce the economizing architecture of property. The cognitive theory is then applied to longstanding puzzles like the role of baselines such as nemo dat (“one can give that which one does not have”) and ad coelum (“one who owns the soil owns to the heavens above and the depths below”), the notion of “title,” and the function of equity as a safety valve for the law. The cognitive theory also allows one to reconcile reductionism and holism in property theory as well as static and dynamic explanations of the contours of property.

Smith, Henry E., On the Economy of Concepts in Property (January 19, 2012). University of Pennsylvania Law Review, Vol. 160.

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