The New Marriage Contract and the Limits of Private Ordering

Symposium: Law and the New American Family Held at Indiana University School of Law - Bloomington Apr. 4, 199

The Dead Hand and the Law of Trusts in the Nineteenth Century

This article discusses a basic paradox at the core of liberal property law. Individual freedom to dispose of consolidated bundles of rights cannot simultaneously be allowed and fully maintained. If the donor of a property interest tries to restrict the donee\u27s freedom to dispose of that interest, the legal system, in deciding whether to enforce or void that restriction, must resolve whose freedom it will protect, that of the donor or that of the donee. Although post-realist American property lawyers acknowledge this conflict, at least nominally, it did not emerge in legal consciousness in so starkly visible a form until the end of the nineteenth century. Several features of antebellum legal thought obscured the problem in the dead hand doctrines. Incident to the Classical, or late nineteenth century, effort to recategorize and rationalize private law rules on the basis of scientific principles that abandoned the old feudal policy supporting property\u27s technical elements, these pre-Classical mediating devices began to erode. With the disintegration of the pre-Classical conceptual structure, Classical lawyers explicitly faced the problem of the freedom of disposition principle. Their effort to construct a synthesis that resolved the contradiction on an objective basis and that assimilated equitable with legal doctrine failed toward the end of the nineteenth century. The demise of the Classical synthesis was signaled by the adoption in most jurisdictions of a pair of new trust law doctrines that reversed established trust rules. The spendthrift trust doctrine permitted trust transferors to tie up a beneficiary\u27s interest by imposing direct restraints on its alienability. The Claflin doctrine soon thereafter immunized private trusts from attempts by beneficiaries to destroy them through premature termination. Far from being reconcilable with the conventional property rules which invalidate most restraints on legal interests, these doctrines placed trust and property, equity and law in fundamental conflict over the problem of freedom of disposition. This doctrinal development and the changes in legal consciousness that underlay it are central to a historical understanding of the ideology of private property in liberal legal thought. Anglo-American lawyers have long identified the lifting of restraints on alienation as the major defining characteristic of a liberal commercial society as opposed to a feudal one. Along with liberty of contract, free alienation is one of the keystones of the twin policies of promoting individual autonomy and free exchange in competitive markets. Nineteenth century lawyers conflated the distinction between state-imposed restrictions on alienation and privately imposed restraints, treating the policy underlying rules proscribing the latter as continuous with the policy opposed to the old feudal restraints. Their historical vision, which persists today, sees the development of the law of disposition as continuous and directional. Within this vision, modem lawyers have pushed the deviationist trust rules into a corner as aberrational or accommodated them on the basis of instrumentalist accounts of the doctrines as pragmatic responses to existing social needs. Against this consensus view, this article relates the doctrinal conflict between property and trust law to the internal contradiction in the liberal legal principle of freedom of disposition. The historical account offered here suggests that within the individualistic regime of consolidated property there is no objective basis for choosing between the autonomy of the donor and that of the donee, the dead hand dilemma; any resolution of that problem is a naked preference

Freedom, Coercion, and the Law of Servitudes

What do we want from a restatement of servitude law? Doctrinal simplification presents one obvious objective. Property teachers and their students commonly observe that the law of servitudes is a mess. However, doctrinal simplification surely does not present the only objective of the restatement. Developing a unified body of servitude doctrine, by itself, merely creates a sense of aesthetic coherence. Presumably the project aims at achieving more than just that. Law reformers generally seek to enhance the legal system\u27s substantive coherence. At this level--developing a set of substantively coherent doctrinal practices--I am skeptical about the servitude restatement project. A restatement requires a background theory that structures the discourse by which the specific issues of policy are debated. Recent scholarship on servitude law clearly indicates that such a background theory already exists for this restatement. That background theory rests on the familiar, liberal distinction between individual freedom of choice and coercion. Recent normative debates over servitude law structured by that distinction have a familiar ring: should servitude law be oriented by a strict contractarian ethic, as Professor Richard Epstein urges, or should it include concessions to a regulatory or interventionist ideology? An essentialist quality permeates the way participants in these debates have argued. They have implicitly assumed both the possibility and the desirability of classifying every aspect of the legal apparatus for adjusting conflicting land-use preferences as either choice-maximizing or choice-inhibiting. Strong reasons support skepticism about this discursive structure. Its beguiling simplicity seriously distorts social reality. Choice and coercion are not alternative objective social states that either exist or do not exist. Rather they are rhetorics that, though contradictory, are both always available as interpretations of any given social experience. Pretending that they are more than just opposing rhetorics creates a form of nominalism that privileges one understanding, one interpretation. Choice and choicelessness do not occupy isolated realms of human activity. Rather they continuously intrude upon each other. In this Article, I will discuss how the rhetoric of freedom of choice and coercion obscures the choicelessness problem as experienced by actors in nominally consensual land transactions

Governance Property

Exclusion theorists of property think that the concept of property properly concerns only the relations between owners and nonowners — that is, the external relationships of owners, or what we might call the “external life” of property. From this perspective, the internal relationships among property stakeholders — the “internal life” of property — are irrelevant from a conceptual point of view. I argue that this is a distorted and misleading view of property. To reveal this misconception, I distinguish between two types of property, which I call exclusion property and governance property. Governance property, not exclusion property, is the dominant mode of ownership today. the emergence of GP as the predominant form of property means that the right to exclude can no longer be considered the core of private ownership. The right to exclude, although important, is not central to GP; rather, internal governance mechanisms are essential