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The Rule of Reason in Property Law

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The Rule of Reason in Property Law The Rule of Reason in Property Law Joseph William Singer* TABLE OF CONTENTS I. RULES AND STANDARDS .......................................................... 1375 A. Conventional Analysis ..................................................... 1375 B. Legal Realism About Rules and Standards in Property Law ................................................................................. 1380 1. Why Rules Are Less Predictable than We Think ..... 1380 a. Informal Sources of Justified Expectations ............ 1380 b. Rules Do Not Determine Their Own Scope ........... 1383 c. Competing Norms Limit the Scope of Legal Rules .. 1385 * Copyright © 2013 Joseph William Singer. Bussey Professor of Law, Harvard Law School. Thanks and affection go to Martha Minow, Mira Singer, Lila Singer, Greg Alexander, Jane Baron, Bethany Berger, Eric Claeys, Hanoch Dagan, Nestor Davidson, Annie Decker, Rashmi Dyal-Chand, Mark Edwards, Kent Greenfield, Michael Kenneally, Gil Lan, Daphna Lewinsohn-Zamir, John Lovett, Hari Osofsky, Eduardo Peñalver, Stewart Sterk, Laura Underkuffler, André van der Walt, and Johan van der Walt. I would also like to thank all the participants in the Progressive Property Conference held at Harvard Law School in May 2012 and the Property Works in Progress Conference held at Fordham Law School also in May 2012. 1369 1370 University of California, Davis [Vol. 46:1369 2. Why Standards Are More Predictable than We Think ........................................................................ 1387 a. Exemplars and Precedent Make Standards Concrete .............................................................. 1388 b. Presumptions Make Standards Predictable ........... 1390 II. PROPERTY STANDARDS ............................................................ 1390 A. Right To Exclude ............................................................. 1391 1. Public Accommodations Law ................................... 1391 2. Trespass Damages ..................................................... 1393 B. Immunity from Loss ......................................................... 1395 1. Relative Hardship ..................................................... 1396 2. Adverse Possession ................................................... 1397 3. Equitable Distribution of Property ........................... 1400 4. Public Use ................................................................. 1401 5. Regulatory Takings ................................................... 1402 C. Freedom To Use Property ................................................ 1405 1. Flooding Doctrines ................................................... 1405 2. Land Use Regulation ................................................ 1407 D. Power To Transfer ........................................................... 1410 1. Restraints on Alienation ........................................... 1410 2. Future Interests ........................................................ 1411 3. Servitudes ................................................................. 1413 4. Leaseholds ................................................................ 1418 5. Real Estate Transactions ........................................... 1419 III. RULES OF REASON ................................................................... 1420 A. Systemic Functions of Rules of Reason ............................. 1421 1. Setting Minimum Standards Compatible with Democratic Norms ................................................... 1421 2. Consumer Protection: Things that We Would Like To Take for Granted ................................................. 1423 3. Managing Externalities and Systemic Effects of Property Rights ......................................................... 1424 B. Determining the Scope of Property Law Rules .................. 1425 1. Distinguishing Cases ................................................ 1425 2. Resolving Conflicting Norms ................................... 1427 3. Excusing Mistakes .................................................... 1429 4. Escaping the “Dead Hand” of the Past ..................... 1430 5. Deterring the “Bad Man” .......................................... 1432 IV. PRACTICAL REASON AND THE RULE OF LAW ........................... 1432 2013] The Rule of Reason in Property Law 1371 The inquiry would be adequately made if it should attain the clarity that accords with the subject matter. The noble things and the just things, which the political art examines, admit of much dispute and variability. ¶ It would certainly be desirable enough, then, if one who speaks about and on the basis of such things demonstrate the truth roughly and in outline, and if, in speaking about and on the basis of things that are for the most part so, one draw conclusions of that sort as well.1 Aristotle [S]teadfast adherence to principle, with rigorous disregard of the conflicting exception, is a sure mode of attaining the maximum of attainable truth, in any long sequence of time. The practice, in mass, is therefore philosophical; but it is not the less certain that it engenders vast individual error.2 Edgar Allan Poe Scholars often remark that property rights cannot work if they are not clear.3 After all, we cannot use or transfer property if we do not know who owns it. If title to real estate is not clear, disputes over control rights will arise, impeding both development and marketability. If this intuition is correct, we might expect a mature property system to be based on clear rules defining who owns property and what they can do with it. Vague standards would pass away over time and be replaced by predictable, rigid rules of law. Such rules would not only better protect the rights and liberties of owners 4 but would promote desirable investment in the real estate market. 1 ARISTOTLE’S NICOMACHEAN ETHICS 3 (Robert C. Bartlett & Susan D. Collins trans., Univ. of Chi. Press 2011). 2 Edgar Allan Poe, Mystery of Marie Roget, in TALES 151, 174-75 (1845), available at http://www.eapoe.org/works/tales/rogetb.htm. 3 See, e.g., Abraham Bell & Gideon Parchomovsky, Reconfiguring Property in Three Dimensions, 75 U. CHI. L. REV. 1015, 1022 (2008) (“There cannot be ownership in land without some clear idea of who owns the land, what land is owned, and what rights accrue to the owner as a result of her status.”); Steven J. Eagle, Private Property, Development and Freedom: On Taking Our Own Advice, 59 SMU L. REV. 345, 352 (2006) (“Individuals working to grow their assets must be supported by clear laws defining their property rights”); Henry E. Smith, Property and Property Rules, 79 N.Y.U. L. REV. 1719, 1797 (2004) [hereinafter Property and Property Rules] (“Property rules have informational advantages”). 4 On the crucial importance of the institution of property in lowering information costs in knowing who has presumptive control over predictable packages of resources 1372 University of California, Davis [Vol. 46:1369 Recent developments show that these expectations may be misplaced. First, contrary to the intuitive view, the subprime crisis reveals that clear rules may neither promote predictability nor clarify property rights. The securitization of subprime mortgages occurred against a background of relatively clear rules; for example, put your property transactions in writing and record them in the registry of deeds. These rules were intended to clarify title to real property and to publicize the relevant information in an accessible government office. But the banks did not consistently follow these clear rules. Many not only bypassed public recording offices — thus privatizing information about mortgage ownership — but they carelessly failed to formalize all the mortgage transactions involved in the securitization process. We are left today with clouded titles, rampant litigation, and insecure property rights. Clear rules did not lead either to clear titles or predictable results. Second, and also contrary to the intuitive view, property law has always contained flexible standards as well as clear rules. Nor has it relegated those standards to peripheral or unimportant areas of the law.5 More surprising still, property law seems to be moving away in the world, see the work of Henry Smith and Thomas Merrill. See, e.g., Thomas W. Merrill & Henry E. Smith, The Morality of Property, 48 WM. & MARY L. REV. 1849, 1856-57 (2007) [hereinafter Morality of Property] (arguing that property rules must be simple to cohere with ordinary morality and to promote widely accepted norms in order to lower the costs of recognizing and complying with property rights); Thomas W. Merrill & Henry E. Smith, Optimal Standardization in the Law of Property: The Numerus Clausus Principle, 110 YALE L.J. 1, 24-42 (2000) [hereinafter Optimal Standardization] (limiting the packages of property rights that can be created minimizes information costs by enabling clear communication of what rights are associated with ownership); Thomas W. Merrill & Henry E. Smith, What Happened to Property in Law and Economics?, 111 YALE L.J. 357, 359, 385-88 (2000) [hereinafter What Happened] (arguing that because property rights must be communicated to everyone, they must come in standardized packages to minimize the costs of communicating what rights are associated with ownership); Henry E. Smith, Exclusion v. Governance: Two Strategies for Delineating Property Rights, 31 J. LEGAL STUD. S453, S469-S471, S486-S487 (2002) [hereinafter Exclusion v. Governance] (noting that broad exclusion strategies lower the cost of delineating property
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