Private Land Made (Too) Simple

February 2003
ELR 10155
Eric T. Freyfogle

In a recent article in the Yale Law Journal, Profs. Thomas W. Merrill and Henry E. Smith express concerns about what they take to be the excessive abstraction of law-and-economics writing on private property. This scholarly discourse, they tell us, seems to have forgotten that property law has to do with things. It has become too focused on property as a bundle of legal entitlements and liabilities, overlooking the underlying res that a person might actually own. In the case of land, scholars have forgotten that property law deals with the hypothetical Blackacre or Greenacre, rights to which might and do differ from typical contract rights because of the actual, physical nature of land. Professors Merrill and Smith admonish their colleagues to recover this lost wisdom. Doing so, they claim, would improve the ongoing economic discourse: it would help explain why certain elements of property law are as they are, and it would aid ongoing discussions about theoretical issues that economists find intriguing.

As a property scholar who has long tracked this economic discourse from the sidelines, I find myself heartened by the question that Professors Merrill and Smith pose: what has happened to property in law and economics? And I am heartened even more that such prominent insiders would be the ones to raise the question. What, indeed, has happened to property at the hands of such economic scholars, particularly to privately owned land?

The author is the Max L. Rowe Professor of Law, University of Illinois. He is grateful for comments on a draft of this essay supplied by Tony Arnold, Chris Elmendorf, and Julianne Newton. Professor Arnold's important contributions to the piece include the title.

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Private Land Made (Too) Simple

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