Faculty Bibliography
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Property has long played a central role in political and moral philosophy. Philosophers dealing with property have tended to follow the consensus that property has no special content but is a protean construct — a mere placeholder for theories aimed at questions of distributive justice and efficiency. Until recently there has been a relative absence of serious philosophical attention paid to the various doctrines that shape the actual law of property. If the philosophy of property is to be more attentive to concepts lying between broad considerations of political philosophy and distributive justice on the one hand and individual rules on the other, what in this broad space needs explaining, and how might we justify what we find? This book aims to fill this gap in the philosophical analysis of private law. This is achieved here by revisiting the contributions of philosophers such as Hume, Locke, Kant, and Grotius and revealing how particular doctrines illuminate the way in which property law respects the equality and autonomy of its subjects. Secondly, by exploring the central notions of possession, ownership, and title, and finally by considering the very foundations of conceptualism in property.
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Henry E. Smith, Equitable Intellectual Property: What's Wrong with Misappropriation?, in Intellectual Property and the Common Law 42 (Shyamkrishna Balganesh ed., 2013).
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Leading scholars of intellectual property and information policy examine what the common law can contribute to discussions about intellectual property's scope, structure and function.
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In this paper, we argue that the notion of equity as a safety valve on the law can be seen as part of the law’s response to the problem of opportunism. We define equity as the use of a more flexible, morally judgmental, and subjective mode of legal decision making that roughly corresponds with historical equity. We distinguish opportunists as agents who have unusual willingness and ability to take advantage of necessary imperfections in the law. We present a simple contracting model that captures the role of equity as a safety valve, and show how it can solve problems posed by opportunists. In our model, a simple but imperfect formal legal regime is able to achieve first best in the absence of opportunists. But when opportunists are added, a more flexible regime (equity) – specifically, one that denies damages to parties who exploit contractual gaps – can be preferred. However, equity is also vulnerable to being used opportunistically by the parties it intends to protect. For this reason, we show that it is often preferable to limit equity, reserving it for use only against those who appear sufficiently likely to be opportunists. Our model generates intuitive comparative statics that describe the optimal expansiveness or restrictiveness of equity.
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Henry E. Smith, F. Scott Kieff, Pauline Newman & Herbert F. Schwartz, Principles of Patent Law: Cases and Materials (Foundation Press 6th ed. 2013).
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This new edition also includes materials that contrast the common, utility patent, with other patent-like regimes including plant patents and design patents.
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The Coase Theorem is widely regarded as pointing to the importance of positive transaction costs for the analysis of economic institutions. Various interpretations of the Coase Theorem regard transaction costs as some set of impediments to contracting, or more broadly, as the costs of providing institutional solutions to conflicts over resource use. The abstract nature of the Coasean hypothetical tends to promote an abstract notion of property as a thin entitlement: a right in a designated person to take certain actions or derive value from a set of resource attributes. On this view, property is like a collection of tiny contracts. The property rights furnished by actual property law are much more coarse grained than this, and property is correspondingly “incomplete” for transaction costs reasons. Property and contract are substitutes in some situations, but they often are not interchangeable—because of Coasean transaction costs.
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Henry E. Smith, Takings and Givings: The Analytics of Land Value Capture and Its Symmetries with Takings Compensation, (Comment) in Value Capture and Land Policies (Gregory K. Ingram & Yu-Hung Hong eds., 2012).
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Henry E. Smith & Thomas W. Merrill, Teacher's Manual to Property: Principles and Policies (Foundation Press 2nd ed. 2012).
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Henry Smith, Preventing the Misuse of Preventive Adjudication: A Response to Bray (The Legal Workshop, U. Chi. L. Rev., Apr. 4, 2011).
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In his pioneering work on transaction costs, Ronald Coase presupposed a picture of property as a bundle of government-prescribed use rights. This picture is not only not essential to what Coase was trying to do, but its limitations emerge when we apply Coase’s central insights to analyze the structure of property itself. This leads to what we term the Coase Corollary: in a world of zero transaction costs the nature of property does not matter to allocative efficiency. But as with the Coase Theorem itself, the real point is the implication for a positive transaction cost world: we need to subject the notion of property to a comparative institutional analysis. Because transaction costs are positive, it is no accident that property is defined in terms of things as a starting point, that uses are grouped under exclusion rights, and that in rem rights are widely employed: these features of property receive a transaction cost explanation. Simple lumpy packages of property rights motivated by transaction costs form an important baseline that furnishes presumptive answers to bilateral use conflicts. A more thoroughly Coasean approach points back to a picture of property more like the traditional one furnished by the law.
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Henry E. Smith, Introduction, in Research Handbook on the Economics of Property Law (Kenneth Ayotte & Henry E. Smith eds., 2011).
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Legal scholars, economists, and other social scientists interested in property will find this Handbook an often-referenced addition to their libraries.
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Tort law presents a puzzle from an information cost point of view. Like property, its duties often avail against others generally, but unlike property it is appears not to be standardized and is more subject to judicial innovation. This essay argues that torts, like property, employs modular structures to manage the complexity of interactions between actors. Both property and torts solve the information cost problem with “in rem” rights in similar ways, by chopping up the world of interactions between parties into manageable chunks - modules - that are semi-autonomous. Instead of employing “things” to achieve modularity, tort law employs other strategies to limit information costs, by hiding information and making tort law less context-dependent than one might expect from a “law of actions.” The features of tort law emphasized by noneconomic theories of tort law - corrective justice, civil recourse, and natural rights - can be seen as managing the complexity of tort law. These include tort’s bilateral structure, the content of duties, and proximate cause. As in property, a heavy reliance in tort law on simple moral norms, which are easy to communicate and self-enforce, receives a partial explanation in terms of information costs. Economic analysis and broadly moral theories of torts turn out to be closer together at the descriptive level than is usually thought.
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Henry E. Smith, Standardization in Property Law, in Research Handbook on the Economics of Property Law 148 (Kenneth Ayotte & Henry E. Smith eds., 2011).
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Legal scholars, economists, and other social scientists interested in property will find this Handbook an often-referenced addition to their libraries.
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At the core of controversies over the correct scope of intellectual property lie grave doubts about whether intellectual property is property. Property covers a broad range of resources, from solid objects like land and cars, to fugitive resources like water, to intangibles like debts. But, as a resource, information is different from all of these. From the consumer point of view, information is nonrival; one person's enjoyment of the plot of Hamlet does not diminish another's (if anything, the opposite), and preventing people from using information – excluding them – is difficult. Although information itself is a public good and, once known, would be consumed at zero marginal cost, discovering and making information useful requires inputs that are rival and are susceptible to efforts to exclude. Edison's labor in testing filaments for the light bulb (not to mention his lab equipment and working space) were as rival and excludible as shrimp salads or Blackacre (the classic examples). On various theories, patent rights are said to give incentives to invent, develop, and commercialize information such as the light bulb. Other intellectual property rights regimes, such as copyright, focus more on creation, and yet others, like trademark, are concerned more with commercialization rather than creation. Yet all of these regimes reflect a concern that in their absence people will have too little incentive to engage in one or more activities with respect to information – from discovering it, to commercializing it, to using it to lower consumer search costs.
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Henry E. Smith, Toward an Economic Theory of Property in Information, in Research Handbook on the Economics of Property Law 104 (Kenneth Ayotte & Henry E. Smith eds., 2011).
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Legal scholars, economists, and other social scientists interested in property will find this Handbook an often-referenced addition to their libraries.
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Henry E. Smith & Thomas W. Merrill, The Oxford Introductions to U.S. Law: Property (Oxford Univ. Press 2010).
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Written by two authorities on property law, this book gives students of property a coherent account of how property law works, with an emphasis on describing the central issues and policy debates.
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Henry E. Smith, Differential Formalism in Claiming Intellectual Property: A Response to Fromer (The Legal Workshop, U. Chi. L. Rev., Feb. 22, 2010).
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F. Scott Kieff & Henry E. Smith, How Not to Invent a Patent Crisis, in Reacting to the Spending Spree: Policy Changes We Can Afford (Terry L. Anderson & Richard Sousa eds., 2009).
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This short essay written for a broad audience addresses the problems that are at the center of current debates in academic and policy circles about the patent system. Most current patent reform proposals are designed to give officials and courts more power to weaken or eliminate ‘‘unworthy’’ patents and take primary aim at so-called patent trolls. This essay argues that in light of the rapid, and excessive, changes that have already occurred in the courts, what patent law needs is a tweaking of existing safety valves and processes - not opening the floodgates to more discretion and uncertainty.
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Community custom has played a limited but important role in the law of property. In addition to a few major historic examples such as mining camp rules and whaling, property law sometimes relies on community custom, for example in adverse possession, nuisance law, and beach access. This Article proposes an informational theory of custom in property law. Custom is subject to a communicative tradeoff in the law: all else being equal, informationally demanding customs require an audience with a high degree of common knowledge. General customs already known throughout society do not require much extra publicity from the law, and the law can easily draw on such customs. By contrast, customs that vary by community raise the question of the need for processing by non-expert audiences, i.e., outgroup dutyholders and government officials. This tradeoff helps explain the differential receptiveness to various customs and the process by which they are formalized if they are adopted into the law. The information-cost theory suggests that enthusiasts and skeptics of custom have both tended to ignore this process. The theory is then applied to some suggestive evidence from grazing customs and the pedis possessio doctrine in mining law, under which miners have pre-discovery rights to the spot being worked. Finally, the information-cost theory of custom sheds some light on the history and controversies over the numerus clausus (standardization and limitation of the set of basic property forms) and on the question of baselines of property entitlements in the law of takings.
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Copyright law may not be the answer, but what is the question? Dotan Oliar and Christopher Sprigman explore an example of a norm system—the one among stand-up comedians against joke theft—and show why it is likely superior to use of copyright to protect rights in jokes. In the course of their study they document both how formal copyright law is unsuited to protecting comedic material and what type of norm system, enforced by other comics and booking agents, has sprung up in its stead. From a property point of view, the likely bi-causal relationship between the development of the antiplagiarism norm and the rise of narrative, observational, and social commentary-style comedy out of earlier vaudeville and post-vaudeville styles is now, thanks to Oliar and Sprigman, one of the better documented cases of Demsetzian development we have. Oliar and Sprigman also argue that for all its dangers of mob justice and extreme simplicity, the norm system does protect investments in developing comedic material and is likely more effective and desirable than an enhanced copyright law that might well crowd out the norms system.
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This Article applies an information-cost theory of property to water law. Because of its fluidity, exclusion is difficult in the case of water and gives way to rule of proper use, i.e., governance regimes. Looking at water through this lens reveals that prior appropriation employs more governance and riparianism rests more on a foundation of exclusion than is commonly thought. The development of increasing amounts of exclusion and governance are both compatible with a broadly Demsetzian account that is sensitive to the nature of the resource. Moreover, hybrids between prior appropriation and riparianism are not anomalous. Exclusion strategies based on boundaries and quantification allow for rights to be formal and modular, but this approach is particularly challenging in the case of water and other fugitive resources. The challenges of exclusion that water and other fugitive resources present often lead to a semicommons in which elements of private and common property both coexist and interact.
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The relationship between property and morality has been obscured by three elements in our intellectual tradition. First is the assumption, which can be traced to Bentham, that property is a pure creature of law. An institution assumed to be wholly dependent on law for its existence is unlikely to be infused with strong moral content. Second is the related tradition, also Benthamite, of examining questions about property law from a utilitarian perspective. Utilitarianism is, of course, a moral theory. But in its modern applications, based on price theory and cost-benefit analysis, it adopts a framework largely indifferent to questions of individual rights and distributive justice, which many consider the hallmarks of a moral perspective. Third is the tradition, stronger perhaps in academic circles than in popular thought, that associates property with immorality. Starting with Proudhon's slogan that "property is theft,"' and building through Marx and Engels with their call for the abolition of private property,4 this tradition has put property on the defensive in the minds of those drawn to thinking of public policy in moral terms.
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The Telecommunications Act of J996 divides entitlements to network elements between incumbents and recent entrants. This Article analyzes this mandatory sharing regime as a semicommons, a property regime which combines interacting elements of private and common property. The tele-semicommons exhibits problems of strategic behavior and requires complex governance rules to abate them. These problems are particularly acute when they impede needed change in the governance regime. The Article therefore suggests a greater role for sunset provisions in the mandatory sharing regime.
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Self-help and the law's response to it lie at the center of a system of property rights. This has become all the more apparent as questions of property - and whether to employ property law at all - have arisen in the digital world. In this Article, I argue that self-help comes in different varieties corresponding to different strategies for delineating entitlements. Like property entitlements more generally, the law does not regulate self-help in as detailed a fashion as it could if delineation were costless. Both property entitlements and self-help show far less symmetry and a far lesser degree of tailoring than we would expect in a world in which we did not face delineation costs of devising, describing, communicating, and enforcing the content of rights and privileges to use resources.