James Stern, ‘Property, Exclusivity, Jurisdiction’

… It is time conflict-of-laws scholarship became equivalently sophisticated in its contemplation of property, and as this Article will argue, a fuller appreciation of property’s structure and function offers compelling reasons to adhere to the situs rule and the principles it instantiates. Drawing on insights from the property theory literature and offering further refinements of its own, this Article will show how certain peculiar problems associated with the formal attributes of property support the traditional situs rule. The key is exclusivity and its jurisdictional alter ego, uniformity: Because of property’s in rem structure, the prospect that the substantive standard governing a controversy will depend upon the forum where it is litigated creates special conceptual and practical difficulties. Property uses the idea of an allocation as its central organizing idea, and as a result, a property entitlement is meant to be secure against the possibility of someone else holding a property entitlement that is logically incompatible with it. This model elevates the importance of conflict-of-laws uniformity in two ways …

James Y Stern, ‘Property, Exclusivity, Jurisdiction’. 100 Virginia Law Review 111 (2014).

First posted 2014-02-27 12:17:52

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