Meredith Render, ‘The Concept of Property’

… this Article adopts three positions: (1) that property is conceptually distinct from other areas of law, and that it is numerus clausus that makes it distinct; (2) while numerus clausus embodies a kind of formalism, it is the good kind of formalism, not the bad (as in savaged by the American Realists) kind of formalism; and (3) regardless of whether one agrees with the conceptual account of property, it is important to clarify what that account is and to distinguish it from the confusion that generally surrounds it.

This argument is presented in the following format. Part I introduces the conceptualist/non-conceptualist divide and explicates the necessary point of divergence between the positions. Part II discusses various anti-formalist critiques as they are relevant to the conceptualist account of property. Part III demonstrates how numerus clausus succeeds both in avoiding the pitfalls of formalism generally and in effectuating form restriction. Finally, Part IV offers a conclusion …

Meredith M Render, ‘The Concept of Property’, University of Pittsburgh Law Review volume 78 (Summer 2017).

First posted 2017-08-16 06:46:49

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