Law sets the possibilities and reciprocal constraints within which human action can be incentivized, the benefits of exchange can be calculated, and conflicts can be resolved by a neutral arbiter in a predictable way. In these ways, law is operative on behavior. Law is not just a thing to be defined but instead can be defined by what it does.
In What Property Does, Professor Christopher Serkin reveals this insight by studying the services property law provides us for managing our relationships with others and with things. His article shifts the traditional baseline question. As he states, “Instead of asking what property is”—the question fielded in so much of property scholarship—his article “asks what property does.” (P. 893.)
Through dissection of several individual property doctrines, Serkin exposes a common, “underappreciated” purpose in the background of each—“protecting reliance on resources by favoring slow changes over fast ones in the evolution of property rights.” (P. 893.)
Consequently, Serkin’s article aims to explain why “Property, in this view, is a stabilizing but not ossifying force.” (P. 893.) A stable legal system needs the capacity to make durable commitments to those acting within it, but concomitantly should have enough play in its joints to grow slowly to adapt to changing conditions and evolving preferences of the consumers of the law.
Trespass, for example, protects expectations of ownership while adverse possession promotes dynamism. (P. 895.) Accretion and erosion can cause permanent changes in previously recognized property boundaries, but avulsion events like hurricanes, which involve dramatic and rapid shifts in the paths of rivers or shorelines, do not result in recognized changes to legal property lines.
The voluntary exchanges resulting in servitudes generally get protected by property law, but property law also recognizes the changes to property rights that occur by prescriptive easements, waiver, or changed conditions. These changes are justified, Serkin contends, by long time horizons that allow rights to shift only after reliance on the prior agreements becomes arguably unreasonable or not worthy of property law’s protection. Put differently, Serkin seems to conclude that property law does not effectively serve its broader governing purposes when, at best, it only protects anachronistic past reliance.
Among other examples, Serkin also uses his lens to help explain several areas of takings law. For example, while Penn Coal in 1922 held that coal miners were entitled to compensation for regulatory actions that negated clearly-delineated deed rights to mine all their coal, the Keystone Bituminous case sixty-five years later, finding no regulatory taking under a similar set of deeds and a similar regulatory limitation on mining, can be explained if viewed through Serkin’s “evolutionary reliance” lens. Serkin claims that the “[c]oal companies’…reliance had become tempered over time by increasingly restrictive regulations governing” mining. (P. 949.) Serkin calls these changes “accretive shifts” that are not just changes in law but necessarily precipitated by changes in reliance interests.
Serkin examines seemingly distinct doctrines and explains why they are intentionally or spontaneously and evolutionarily ordered to have related but sometimes concealed DNA strands that operate cross-doctrinally. This is an extremely valuable way to find coherence within a legal subject that might otherwise seem like only a collection of disjointed doctrinal parts. By doing so, we can see how doctrines relate, while generating metrics usable across doctrines to evaluate whether any particular doctrine has become aberrant to systemic themes.
That is precisely what Serkin is attempting to do for property law. He contends that his examination shows that property law “has its own internal logic based on protecting people’s reliance on resources in the world,” but that property is best seen as the “locus of competing reliance interests.” (P. 955.)
Further, “reliance…can arise or subside through use or disuse,” and consequently, property law recognizes dynamism in property rights as a consequence of “evolutionary reliance.” (P. 955.) But the property law system does so only in such a way that does not result in dramatic shifts in legal treatment that would themselves undermine the utility of reliance for setting reasonable expectations or allowing property law to aid individuals ordering their lives and investments.
Indeed, the doctrinal developments in property law create rules that “constrain how quickly reliance can change,” without prohibiting or unduly impeding doctrinal changes that help the system adapt to the changing human environment in which the rules operate. (P. 955.) By limiting change to gradual shifts, Serkin contends that property law preserves optimal levels of reliance ensuring that “people are given time to adapt” to changes in law. (P. 897.)
In private ordering protected by neutral arbiters and within a liberal and democratic system, law is supplied in a manner that reflects the demands its consumers place on it. Thus, law reflects the preferences of its consumers. Property law operates no differently.
But Serkin’s work explains that law may evolve as preferences evolve and in ways to accommodate competing demands or preferences too. However, because property law at its heart recognizes the importance of reliance interests, property serves a unique role in regulating the pace of that evolution and in mediating between competing reliance interests.
Notably, Serkin is defending changes that result in recognized alterations to previously-transacted or legally-expected property rights’ assignments. At the same time, Serkin recognizes the critical need for stability in property rights and argues against displacement of property rights by dramatic shifts (at least uncompensated ones) in favor of allowing property law and property rights claims to act as checks on such non-gradual changes.
Thus, he recognizes that “some may worry that focusing on reliance is too protective, and others that it is not protective enough.” (P. 899.) While Serkin then concludes that “adherents of both camps will find much to dislike” in his article, we should instead focus on why all property scholars of any camp should engage with Serkin’s account to refine their own work by thinking more about whether what property is can best be defined by what property does.
Indeed, the first question I ask my students on the first day of my property course each semester has always been “What is property?” Inspired by Professor Serkin, I think I will lead off next semester by asking the students “What does property law do?”
