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:
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?
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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