“Restatement Fourth of Property” sounds like an exercise in excess. It isn’t. It is true that there have been three rounds of previous Restatements of Property that have contributed greatly to the development of the law. And it is also the case that property law presents a large and seemingly disparate set of problems, doctrines, and institutions, making any attempt to restate the law in this area no small challenge.

Nonetheless, now is the time for a new Restatement. Why?

In the era spanned by the Restatements of Property, centrifugal forces have been at work on property law, to the point where some observers believe that there is nothing to the notion of property and nothing holding together the law of property at all. And yet something called the law of property persists in some form or other. In the actual world of law and in society, property law provides more guidance than one might expect. A Restatement can contribute to the guidance function of law by highlighting its overall architecture.

It is the overall structure of property law that has received the least attention in past Restatements. For a variety of reasons, mostly fortuitous, ALI has never produced a comprehensive unified treatment for property of the sort familiar in contracts and torts. The First Property Restatement was begun by Harry A. Bigelow in the 1920s. Bigelow’s vision for the field – and indeed the vision of ALI founder William Draper Lewis – was heavily influenced by the analytic framework famously developed by Wesley Newcomb Hohfeld, who taught at Yale and died in 1918 at the age of 39. In Hohfeld’s scheme, every legal relation is made up of atomic parts (rights, privileges, powers, immunities, and so on), and it is the job of the legal analyst to reduce more complex legal concepts, such as property, to its constituent elements. Circumstances intervened, and Bigelow became the Dean of the University of Chicago Law School. He handed the baton to Richard Powell of Columbia Law School, who took the Restatement project in a more historical direction. As a result, five volumes appeared in the 1930s and early 1940s, which covered the Hohfeldian framework, estates in land and future interests, and servitudes. The rest of the field went uncovered, with one exception: the property torts (trespass, nuisance, conversion) were shifted over to the Restatement of Torts. The end result was that the Property Restatement did some things very well, but left the field as a whole in an “un-restated” state.

Subsequent Restatements carried this targeted approach further. The Second and Third Restatements filled in some of the many gaps left by the First Restatement and took a second look at a few others. This made sense at the time. The dominant view, especially in academic circles, maintained that there was nothing holding together the various parts of the area of law traditionally called “property.” Thus, there was nothing particularly to be gained by putting its various doctrines together in a single Restatement. Indeed, it was perhaps considered more honest not to. Thus, the individual targeted efforts in the second round of Restatements from the 1970s to the early 1990s and the subsequent third round have offered important clarifications of and insights into individual aspects of property law, and yet have necessarily left out or downplayed the threads connecting them.

The Restatement Fourth has the potential to add this missing element. While accurately reflecting the law and articulating some of what is left implicit in previous Restatements, the new Project will draw out threads that provide some – some, not complete – unity to the field. Notions like possession run through property law. Is it possible that, with a suitably modest definition of possession grounded in social norms, seemingly disparate topics such as trespass, bailments, and the like can be illuminated and harmonized? What about other key notions such as notice, good faith, the generality of in rem duties, and the interplay between the in rem and in personam aspects of complex entitlements? Establishing these connections will allow for easier navigation of the law and, consistent with the original impetus behind the Restatements, will allow the contours and stakes of some problems to become clearer and so more amenable to solution. Notoriously convoluted areas plagued by ambiguous terminology, such as bailments and licenses, clearly stand to benefit from such a systematic treatment.

Also of potentially great value to judges and practitioners will be the coverage of areas left untouched by prior Property Restatements. Important and sometimes contested aspects of property law such as adverse possession will be restated for the first time, not to mention most of the entire area of personal property. The Fourth Restatement project benefits from an outstanding team of Associate Reporters: Sara C. Bronin, John C.P. Goldberg, Daniel B. Kelly, Brian A. Lee, Tanya D. Marsh, Thomas W. Merrill, and Christopher M. Newman. Lawrence W. Waggoner, the Reporter for the Restatement Third of Property (Wills and Other Donative Transfers), has graciously agreed to serve as a Special Consultant. We are committed to carrying forward the simplification of the estate system consistently with a modest conception of the judicial role in amending the basic forms of property. We have already received invaluable feedback from the group of advisers and consulting members, without whose expert assistance and good judgment such an ambitious project could not possibly be undertaken.

This is not a small undertaking, and we do plan to leave specialized areas for other current and future Restatement projects. We will do our best to connect property law to areas like intellectual property and trusts, recognizing that they are best treated in a standalone fashion.

A Fourth Restatement of Property could have a salutary effect of bringing coherence to a field that is notoriously disjointed and we look forward to reporting back on our progress soon.

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Henry E. Smith

Reporter, The Restatement of the Law Fourth, Property

Henry Smith is the Fessenden Professor of Law at Harvard Law School, where he directs the Project on the Foundations of Private Law. Professor Smith has written primarily on the law and economics of property and intellectual property, with a focus on how property-related institutions lower information costs and constrain strategic behavior.

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