Vanderbilt Law Review
At the heart of contemporary property theory stands an intriguing puzzle. Unlike the relatively unconstrained freedom that contract law provides for private ordering, property law recognizes only a limited and standard list of mandatory forms. This standardization-known as the numerus clausus from the civil law concept that the "number is closed" -poses a basic conundrum: what can explain a persistent feature of the law that seems, at first glance, so clearly to restrict the autonomy and efficiency gains conventionally associated with private property? This Article proceeds in four parts. Part I describes the numerus clausus principle and the problems that standardization poses to prevailing conceptions of property as a tool of resource allocation and as an expression of individual autonomy and identity. Part II then examines the flurry of recent attempts to explain why standardization persists despite these concerns. These accounts, while illuminating individual aspects of the numerus clausus, still leave much about the phenomenon unexplained. Part III accordingly presents a pluralist perspective on the numerus clausus grounded in the principle's underlying regulatory function. This pluralist account of standardization as a regulatory platform better explains both the structural function that standardization plays and the nature of the tradeoffs instantiated in the content of the standard forms. Finally, as explained in Part IV, this account sheds light on larger debates in property theory, ultimately providing a richer understanding of this core phenomenon in property law.
Nestor M. Davidson,
Standardization and Pluralism in Property Law , 61 Vand. L. Rev. 1597
Available at: http://ir.lawnet.fordham.edu/faculty_scholarship/158