‘Property, Fast and Loose’

Katrina M Wyman, The New Essentialism in Property, 9 Journal of Legal Analysis 183 (forthcoming 2018), available at SSRN. What’s the best model for property – a sack of LEGO bricks or a heap of sticks? For those with a formalist view of property that emphasizes a stable set of characteristics and a distinctively self-contained architecture, the LEGOs win hands down. The blocks are standardized, free of rough edges and irregularities, and they snap cleanly together while maintaining their individual integrity. The sticks, by contrast, lack any obvious organizing principle or irreducible core. The bundles they form are loose and contingent, vulnerable to endless unbundling and rebundling. Yet the choice of bricks over sticks becomes far less clear on a functional vision of property that focuses on making property rights work well in the messy, interdependent modern world. For a functionalist, the question of optimal property structure must depend on the challenges and pressures presented by the surrounding conditions, and on what one is trying to build … (more)

[Lee Anne Fennell, JOTWELL, 10 October]

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