Chad Pomeroy, ‘The Shape of Property’

… 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 courts’ 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 II 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 III 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 …

Pomeroy, Chad J (2014) ‘The Shape of Property’, Seton Hall Law Review, Volume 44, Issue 3, Article 2.

First posted 2014-08-07 12:18:24

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