Property as Prophesy: Legal Realism and the Indeterminacy of Ownership

By Humbach, John A. | Case Western Reserve Journal of International Law, Spring 2017 | Go to article overview

Property as Prophesy: Legal Realism and the Indeterminacy of Ownership


Humbach, John A., Case Western Reserve Journal of International Law


Property law, like all law, is indeterminate. This means that ownership itself is indeterminate and every owner is vulnerable to challenges based on unexpected legal rules or newly created ones. Even the most seemingly secure rights can be defeated or compromised if a clever-enough lawyer is retained to mount a challenge. The casebooks used in first-year property courses are full of examples. In the case of particularly valuable property, such as works of art, the motivation to fashion arguments to support ownership challenges is obvious. Short and strictly interpreted statutes of limitations can mitigate the risks to ownership by cabining the timeframes from which title challengers can draw facts to support their claims.

CONTENTS

I.     INTRODUCTION
II.    OWNERSHIP INDETERMINACY
III.   GETTING PROPERTY BY CREATING NEW RULES: DEWEERTH V. BALDINGER
IV.    STATUTES OF LIMITATIONS REDUCE THE INDETERMINACY OF PROPERTY
         RIGHTS
V.     CONCLUSION

I. INTRODUCTION

Property is a fundamental and pervasive social practice. In everyday interactions, people recognize, respect, and reaffirm "ownership" in a myriad of different ways. There are many similarities between the law of property and the social practice. In both, for example, owners are viewed as having a variety of special advantages or benefits, including, most prominently, the right to have or possess the things they own; the right to exclude others from them; and, generally, the right to deal with them more or less as they please. The law of property and the social practice are, however, different in important respects. Perhaps most important: when compared with the law, ownership in the social practice of property is not a particularly complex concept. In everyday social interactions, a person either owns something or does not. In the law of property, by contrast, the conception of ownership is far less simple.

Because the law of property and the social practice are different, it is possible for the two to give different answers on questions of who owns what. The law, of course, takes precedence, but only if someone invokes it. This does not mean, however, that the social practice of property necessarily follows the law on questions of ownership. What is more accurate to say is that, as long as the players in the social practice do not takes steps to invoke the legal system to resolve disputes, the social practice of property generally ignores the intricacies and vagaries of the law. Meanwhile, ownership in the social practice of property is constantly affirmed and reaffirmed in the ways people deal with one another in ordinary social interactions. Legal ownership is, by comparison, rarely declared by the institutions of the legal system and almost never reaffirmed at law. Consequently, attributions of ownership under the social practice of property almost surely predominate over legal ownership in people's property consciousness. When the law does intervene in ownership disputes, however, the outcomes are as likely as not to go against the social practice. Even as a purely legal matter, such outcomes are largely unpredictable.

There are practical and theoretical reasons for this divergence and unpredictability. The practical reason is that lawyer time is expensive, and persons having legal expertise usually do not get professionally involved in (or, at least, they do not spend much time on) cases whose resolution is "clear cut" or "easy." Lawyers are only likely to get seriously involved in ownership disputes when they believe the issues, either of law or fact, are at least plausibly contestable, with sound reasons in support of outcomes going either way. That is to say, there must ordinarily be a fair degree of uncertainty as to how a legal dispute will come out before a client will want to spend money on the lawyer hours needed to seek a legal determination. This pre-requisite of uncertainty is in and of itself enough to make the outcomes of legal disputes notably unpredictable. …

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