Tuesday, October 4, 2005
My students sometimes ask me why we don't cover more of the Restatements in our first year property class. In torts and contracts, the Restatements are all over the place. In property, they don't come up much at all, though I do cover the Restatement (Third) when I'm teaching servitudes. My answer varies, but is based on the following impressions: (1) there is far less uniformity across jurisdictions in property than there is in, say, torts and contracts; (2) the first two Restatements reinforced a lot of silly common law rules and as a result academics don't like them much; and (3) courts are less willing to change the common law of property than they are in other common law disciplines, so the Restatements of Property have had less impact than the Restatements of other subjects.
I don't have any real empirical support for these impressions, and feel free to correct me in the comments if you think I'm wrong about any of them. I've read enough property decisions to think that number 3 is true. Courts are always hesitant to upset expectations by changing the rules in mid-stream, and the long duration of many property relationships reinforces this tendency. Major change in property law, the courts often say, should be done by the legislature.
So if courts are hesitant to reform and rationalize property law, why do we keep doing Restatements? I'm generally a fan of the Restatement (Third) of Property, Servitudes. Among other things, abolition of the distinction between real covenants and equitable servitudes makes a great deal of sense -- the difference between the two is a relic of the division between law and equity, and it seems silly to have different rules if a covenant is going to be enforced through an injunction or money damages. Some courts might be bold enough to make such a radical change, but my bet is that most would not. So why be court-centric? Why don't we put the same substance into a Model Law of Servitudes and try to reform property law through the legislatures? Some legislative property reform might raise takings issues (a subject I'll address in a future post), but I have a hard time seeing that as a problem with servitudes reform.
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