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Sender:
Lionel Smith
Date:
Sun, 25 Nov 2007 09:47:44 -0500
Re:
Deceit: damages and account

 

[I post the following on behalf of Bill Swadling:]

As a property lawyer, it is hardly 'awe' in which I hold Calabresi and Melamed, for their nomenclature causes nothing but confusion. Given, for example, that the legal system redresses interferences with the right to the exclusive possession of goods with an award of damages, we would end up having to describe this undoubted enforcement of a property right as not being an instance of a court invoking a 'property rule'. By contrast, because it is possible to specifically enforce a contractual licence to occupy land, an undoubted personal right, we would have to see that as involving the application of a 'property' rule. The word 'property' is normally used to distinguish different sorts of rights, those which are generally exigible against third parties as opposed to those which are not. This is now how the authors use it, and in that sense their terminology is unhelpful, so much so that it is nowadays difficult to have an intelligent conversation about property with a US lawyer. Calabresi and Melamed may have stumbled across something inspiring awe, but they should have thought more carefully about what to call it. To talk of 'specific recovery rules' and 'damages rules' would have been fine, but not 'property rules' and 'damages rules'. If we are to make sense of the law, we should never confuse the nature of the right and the means by which it is enforced.

  

Bill Swadling


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