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Property and the New Doctrinalism: Comment

A colleague of mine has a simple piece of advice for any student planning to write on a private law topic: for clear analysis of the doctrinal issues, find an American law review article published before 1920. This pre‐realist scholarship shares an important feature with much of the research currently undertaken in common law jurisdictions beyond the United States: the concepts used by the courts are taken seriously, and an attempt is made to see if those concepts form part of a coherent system. However, such contemporary research does not stubbornly proceed as if the realist revolution had never occurred. Instead, it is possible to adopt a “new doctrinalist” approach by accepting some important points made in realist critiques and using those insights to inform a careful inquiry into the nature and operation of legal concepts. This brief response considers some of the key features that might be possessed by such a “new doctrinalist” account of property law.

In locating a particular approach on a doctrinal–realist spectrum, it is useful to consider the relative importance of means as opposed to ends, concepts as opposed to contexts, and rights as opposed to value. Those three pairs will be considered here in relation to the nature and operation of legal property rights; of equitable property rights; and of choses in action.