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Sunday, March 14, 2010

The Stagnation of the Common Law of Property(?)

I just finished my seventh and final "property year in review" article for the Indiana Law Review.  Each year, I abstract and comment on "noteworthy" decisions in Indiana property law or new statutes.

Since this year is my last article, I decided to more broadly critique the state of the common law of property in Indiana.  After particularly discussing commercial leasing and commercial real estate transactions, I concluded that it is "stagnant."  The most recent decisions on many key issues date to the 1980s or even the 1880s.  The old cases are particularly frustrating because they invariably describe disputes over agricultural land and we try to apply them to much more sophisticated and complicated arrangements. 

I tried to sum up what I see as the fundamental problem in the following paragraph:

Although Indiana seems particularly resistant to change, or has been especially limited in its opportunities to effect change, the problem is not limited to this state.  More broadly, the stagnation of the common law of property results from a combination of factors.  Transactional attorneys view the litigation process as unworkable, particularly in the real estate context, for three key reasons: (1) the cost; (2) the length of time until resolution; and (3) the uncertain outcome.  If neither the common law nor statutory law provide easy answers to an issue, the parties are likely to conclude that they are better off resolving their differences out of court than spending time and money to achieve an unpredictable result.  This situation is a classic Catch-22 – the parties to real estate disputes refuse to bring their cases to the appellate courts in part because of the failure of the courts to modernize the common law of property, but the appellate courts have limited opportunities to modernize the law because of the failure of parties to modern disputes to allow their cases to be heard.

Without the benefit of the lovely examples I discuss in the article, what do you think?  Am I being overly harsh?  Is the common law of property actually vibrant, dynamic, and relevant? 

Tanya Marsh

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Comments

Sure, a lot of aspects of property law are moribund. I think that property law is particularly resistant to change by the courts. Courts often to want to defer to legislatures, and this is particularly true in the property context, where long-term reliance interests counsel against making changes to "settled" law. I've recently been exploring statutory reform of property law, but that presents its own set of issues, including the need to factor in interest group politics and the general lethargy of state legislatures.

Posted by: Ben Barros | Mar 15, 2010 10:49:59 AM

I think you are right on. A professor of mine, Robert Nordstrom (a UCC guy), took the position that a commercial lawyer who wound up in litigation had failed to serve his client well. An overstatement to be sure, but, I think, of some merit and it confirms for me Tanya's hypothesis.

Posted by: Tom Roberts | Mar 16, 2010 9:31:34 AM

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