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Tuesday, May 1, 2012

Henry's Myth

One of the benefits of a blog (I am told) is the chance to introduce topics and ideas I know I'll never have the chance to turn into full articles.  Here is the first - an abstract of the beginning of a response to Henry Smith's "Property as the Law of Things":

http://lawprofessors.typepad.com/property/2012/03/smith-on-property-as-the-law-of-things.html

"Henry’s Myth; or, The Baby, the Bathwater, and the Bundle of Rights

Professor Smith’s recent article “Property as the Law of Things” (2011) 125 Harv L Rev [forthcoming] argues that the legal realists’ notion of property as a “bundle of rights” should no longer be considered useful to property lawyers and jurists.  This paper argues otherwise, pointing out that (a) Smith has misrepresented the intellectual origins of the idea of property as a bundle of rights; (b) the “bundle” is more appropriately seen as a metaphor, rather than a description, and Smith has misrepresented this metaphor;  (c) Smith’s new “modular architecture” metaphor bears more resemblance than Smith will admit to the idea of the bundle; and (d) there remain a number of examples for which the bundle of rights is a better analogy than modular architecture.  This paper criticises the notion that the bundle of rights metaphor must give way to a modular architecture analogy as “Henry’s myth”, and concludes that we should not too easily abandon an enduring metaphor like the bundle of rights without being aware of what else might be lost: the bundle of rights remains something of a “baby” within the bathwater of property law theory."

Mostly, I think, it is just a good title.  It begins from an assessment that Smith - and others - treat the "bundle" as a realist idea, when the phrase significantly pre-dates the realists and the legal realist movementFurther, a bundle is something we can picture quite well - "agenda setting" (as per Katz) or "modular architecture" less soThat said, the abstract is less nuanced than an article would be (as Smith's article is itself more nuanced than its title).

Comments welcome, but as I said, it's not likely to be something I have time to turn into a proper article, so as much as anything, I hope perhaps someone else can pick up on it. 

Thomas Gibbons

http://lawprofessors.typepad.com/property/2012/05/henrys-myth.html

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