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Friday, December 5, 2008

Davidson on Standardization and Pluralism in Property Law

Nestor M. Davidson (Colorado) has posted Standardization and Pluralism in Property Law on SSRN.  Here's the abstract:

Property interests evince a near-universal tendency to coalesce into a limited list of mandatory forms, such as the estates in land, servitudes, and the forms of intellectual property. This standardization poses an intriguing puzzle for property theory. If property law is meant to bolster autonomy and enhance the efficiency that private ordering can bring to economic relations, how then to account for a persistent feature of the law that seems to undermine these goals? A number of scholars have grappled with this problem in recent years. Some have argued that aspects of standardization might actually be efficiency enhancing. Others have argued that standardization instead reflects inherent categories of social or objective meaning. Efficiency theories, however, overemphasize structure, while explanations focused on content underappreciate the architecture of standardization.

This Article proposes a new approach that focuses on the particular patterns of pluralism evident in the standard forms. Even as standardization remains a consistent feature of property law, the legal system constantly tinkers with the standard list and with the mandatory content of the forms themselves. This process produces a menagerie of forms that reflect the ongoing resolution of complex, competing values embodied in property law. The pluralism evident in the forms thus brings to the fore the essentially regulatory function of standardization. Standardization persists in property law because it provides a stable framework through which the legal system regulates the ever-changing public aspects of this central area of private property.

This pluralist account of standardization as regulatory platform sheds light on contemporary debates in property theory more generally, including the development of property rights, the relationship between intellectual property and more traditional forms of property, and the constitutional balance between individual expectation and state ordering in regulatory takings.

Ben Barros

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