“Shape” means “a mode of existence or form of being having identifying features” or the “form or embodiment” of something. Form and feature, in turn, arise from pressure and time. Property law has a shape all its own: it exists as a unique body of law, with distinctive conventions and rules. And that shape, those conventions and rules, derive from a variety of pressures that have, over the centuries, molded property law into its present form. This paper seeks to understand and explain the shape of a particular area of property law – that of property forms.
Of course, this attempt does not exist in a vacuum. Indeed, the shape of property law and the source of that shape has received quite a lot of attention recently, and this paper is a direct response to that discussion. In particular, Thomas W. Merrill and Henry E. Smith have written extensively about the numerus clausus principle, a term which means “the number is closed.” This is a shorthand way to describe the fact that property can only exist in certain standardized forms. Merrill and Smith have done much to popularize this concept as a unique and “deeply entrenched” element of property law. They argue that this limitation on the number of property forms has always existed in the underlying fabric of our common law and take the term from civil law countries, in which forms of ownership are clearly limited to those permitted under civil code. They claim that the numerus clausus describes and explains why property law is so narrowly proscribed when it comes to common law restrictions on property types.
Further, Merrill and Smith have discussed, at great length, their view of what has led to this underlying limitation in property law. They argue that the pressure that created the numerus clausus effect comes from a self-imposed informational cost-benefit analysis wherein courts habitually focus on whether a new property type provides informational benefits that exceed the marginal informational costs thereof.
This description of and explanation for property law have generated significant interest over the last decade or so. Many recent articles have focused on the concept of the numerus clausus, and either built upon or criticized the informational burden analysis developed by Merrill and Smith to explain it. Among those articles are two of mine, which built upon the numerus clausus as posited by Merrill and Smith. In A Theoretical Case for Standardized Vesting Documents (“SVD”), I first argued that this same cost-benefit analysis should apply to vesting documents, a very specific area of property law. Later, in Why is Property so Hard? (“WPH”), I expanded the argument, contending that the informational burden analysis proposed by Merrill and Smith ought not to be limited to vesting heterogeneity. The argument was that the informational pressures identified by Merrill and Smith are present in all areas of property law and, therefore, the informational benefit analysis driving the numerus clausus ought to act on the many, many areas of variability laced throughout property law.
I continue to believe in the validity of these normative arguments. However, I have come to believe that the contrast between these arguments and the actual shape of property law belies the underlying validity of Merrill and Smith’s theses regarding the numerus clausus. More specifically, the informational burden analysis propounded by Merrill and Smith does seem to explain the peculiarly homogeneity associated with the fixed number of property forms available throughout our system. But that analysis should also have the same effect on other areas of property law, and it clearly has not.
I believe that this failure to affect other areas of property law indicates that the numerus clausus does not arise due to the type of informational burden analysis propounded by Merrill and Smith. In other words, if the courts truly adopted and applied the type of informational burden analysis described by Merrill and Smith, then they would do so in all areas of property law. Property law is notoriously haphazard, in contrast to other areas of the law, and the court’s failure to remedy this heterogeneity (despite the same efficiency pressures extant in connection with property form issues) indicates that this judicial weighing of informational benefits and burdens simply does not occur in any area of the law. Part I lays the foundation for this argument in greater detail by reviewing the numerus clausus and contrasting Merrill and Smith’s contentions with my own previous analyses.
So, if the pressure to create informational efficiencies does not lead to the numerus clausus, what does? Part II answers this question by focusing on the historical setting in which property law developed. Often overlooked, legal history frequently explains why and how the law developed. I believe that is the case here. Rather than arising from a subtextual analyses regarding informational burdens, homogeneity of property forms arises from a series of ancient statutes meant to protect governmental revenue. These statutes narrowed the type of property that one could create in order to restrict the manner in which people were able to transfer land, thus ensuring that the English crown’s transfer tax stream would not be jeopardized.
The Article concludes that our property system, inefficient as it is, has been shaped by organic forces over the centuries. The numerus clausus, then, is a valid description of the current shape of property law, but it does not arise in the manner that many academics and commentators claim
