Journal article
Conflicts of Entitlements in Property Law: The Complexity and Monotonicity of Rules

Publication Details
Gomez, F.; von Wangenheim, G.
Publication year:
Iowa Law Review
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In property law, and especially in the law of nuisance, thesimple Calabresi-Melamed scheme of property and liability rules experiencesignificant transformations, mainly through their recombination-whichresults in rules that are a combination of the elementary rules-and lessfrequently through the interplay between the rules and public regulatorystandards. The result of these combination processes and the interactionbetween private law rules (property and liability) and public law standardsis a set of complex rules in which some threshold acts as a switch that triggersa given property or liability rule to change into a different rule. In this respect,the negligence rule can be seen as a composite rule, consisting of a pure strictliability rule favoring the victim, and a property rule favoring the injurer,with the variable of due care acting as the switch between the two. Sometimes,the number of switches, and thus, the complexity of the rules, increase to twoand, eventually, to a larger number.The above explanation implies that property law, the area of the law that mostconspicuously (albeit not exclusively) deals with the protection of entitlements is, in fact, much more structurally complex than most current law andeconomics analyses have assumed.We also explore how the switches between elementary rules move along thevariables typically involved in situations of conflict of entitlements: measuresof care taken by parties in conflict, investments made by the parties, and usesof such investments. We identify how rules appear to be (using, with someconceptual abuse, the mathematical notion) monotonic in all those variables:The sequence of elementary rules and switches combined in complex rules doesnot allow "reversals of ordering" as choice variables increase or decrease. Weconjecture that new developments and new forms of property would conformto the monotonicity property we identify and that informal coordinationbetween the agents involved, instead of heavy reliance on formal legalenforcement, would play a large role in the choice of the structure of rulesprotecting entitlements through future property forms.


Last updated on 2018-02-11 at 11:05