Custom in American Property Law: A Vanishing Act

SummaryIntroduction 507I. The Informational Trade-Off 509A. Generality and Formality 511B. In Personam Versus in Rem 514II. Quasi in rem Custom as a Laboratory 516III. The Decline in Custom in American Property Law 518A. Natural Law and Custom 519B. Positivism 519C. Legal Centralism 520D. Tradition and Made Orders 521E. The Fusion of Law and Equity 521Conclusion 522IntroductionCustom isn't what it used to be. Custom today plays a smaller role in American law, and American property law in particular, than it did before the late nineteenth century. This Article advances two related hypotheses for the decline of custom in American property law. First, the law faces a general constraint of information costs in incorporating custom, and second, developments in American law since the nineteenth century have made courts, legislatures, and commentators less receptive to incurring the costs of incorporating custom into property law.All legal systems, including those that incorporate custom into the law, face informational constraints. For information-cost reasons it is difficult for custom to be detailed and generally applicable at the same time. Something usually has to give. First, custom can be detailed and confined to informal use within a smaller community.1 For example, merchants in a given industry in a given city might have customs about delivery times or quality of goods. Or the users of a common pool resource like a grazing area or a fishery might have customs of proper use. Second, custom can feed into the law where law adopts and reinforces existing regularities of behavior. For example, which acts show an intent to abandon things is part of everyday knowledge, which exists in semi-isolation of the law, but the law of abandonment makes use of such behavior in a factual sense. Third, the law might incorporate custom by allowing it to directly define rights and duties, but in such situations custom must be stripped down, simplified, and formalized in order to be usable by a wide and impersonal set of actors.2This constraint of simplicity and formality for substantive direct use of custom in the law applies with special force in that part of property law that deals with in rem rights. An in rem right binds the widest and most impersonal class of duty bearers. In many contexts, from its origins in the aftermath of the French Revolution to modern China, the numerus clausus principle (property comes in a closed number of standard forms) on the one hand and the use of custom in property law on the other have stood in great tension.3 Legislatures might educate the public about the details of a custom, but in such cases they are doing something very similar to ordinary legislation where custom loses some of its advantage of being already familiar to its audience. Thus, for law to incorporate custom, it usually must be adapted from application in smaller communities by stripping out some of the details and becoming more formalized.For a variety of reasons, American property law has become less receptive to this process of simplifying and formalizing custom as part of the development of property. First, earlier uses of custom had natural law and natural rights overtones. Starting some time in the nineteenth century, there was a move away from natural law and natural rights. Custom may have been too associated with natural law and natural rights to remain welcome as a source for substantive lawmaking. Second, positivism became popular over the course of the nineteenth century, and narrow versions of positivism tend to look towards legislatures as a source of law and to emphasize the consciously designed character of legal orders. …