Structure and value in the common law.

• Author: Balganesh, Shyamkrishna
• Position: II. Stability and Change in the Common Law B. Normative Change in the Common Law 2. Interconceptual Change through Conclusion, with footnotes, p. 1281-1310

2. Interconceptual Change

   The second method through which normative change comes about in the common law is best described as the process of interconceptual change (or as interconceptual salience alteration). In basic terms, this mechanism works by altering the relative salience of different concepts, all of which are embedded in a common law doctrine, to the working of that particular doctrine. Whereas interpretive change effects an alteration of a concept's own normative meaning, interconceptual change accepts a concept's prevailing normative meaning as a given but either enhances or reduces the influence of that concept (and its normative meaning) in the overall scheme of the doctrine.

   Common law doctrines routinely entail multiple elements or factors, all of which courts are required to consider during their analysis and application of the doctrine. (173) Each of these elements in turn commonly embodies distinct legal concepts, which in turn contain their own jural and normative meanings as previously described. In interpreting a doctrine, courts do not give factors, elements, and concepts equal weight. Indeed, just the opposite is true. In applying a multi-element doctrine, courts usually emphasize one (or more) elements of a doctrine over others, either explicitly or implicitly. Insofar as the concepts underlying each of the elements reflect different normative ideals, this process of emphasizing or deemphasizing one element over another has the direct effect of raising or lowering that particular concept's salience and its associated normative value for the overall doctrine.

   Assume that a common law doctrine contains four independent (and cumulative) elements ([e.sub.1], [e.sub.2], [e.sub.3] and [e.sub.4]), each of which in turn embodies a distinct legal concept ([c.sub.1], [c.sub.2], [c.sub.3], [c.sub.4]). If the concepts emphasize varying normative ideals and values ([n.sub.1], [n.sub.2], [n.sub.3], [n.sub.4]), the process of emphasizing or deemphasizing one or more elements (e.g., [e.sub.3]) of the doctrine as more important than the others has the direct effect of rendering the normative values associated with the concept ([c.sub.3]) contained in that element ([n.sub.3]) more salient and influential within the overall analysis of the doctrine. Indeed, we see this occurring somewhat frequently in the common law, when courts come to treat one element of a multi-element doctrine as more important than others and in the process raise the salience of the legal concept embedded within that particular element. The following examples are illustrative.

   The doctrine of adverse possession is without a doubt the most striking and controversial way of acquiring property rights in realty and personality. (174) It effectively allows trespassers to divest rightful owners of their ownership rights and acquire good title to assets that they initially wrongfully possessed. For this to occur, the doctrine requires that the possession be actual, open and notorious, hostile (or adverse), exclusive, and continuous for the statutory period. (175) These requirements are considered the "elements" of the doctrine, but they each originate in an important conceptual device with its own jural and normative content. (176)

   Given the somewhat draconian nature of adverse possession as a mechanism of acquiring ownership, as a historical matter courts treated the element of hostility as especially important in the analysis since it allowed them to police the behavior and motives of the claimant. (177) The normative ideal of fairness remained at the core of this emphasis. This perspective reigned supreme when land records were poor and innocent third parties stumbled into others' land and cultivated it, believing in good faith that there was no wrongdoing involved in their actions. (178) The law of adverse possession sought to benefit these putatively innocent occupiers by protecting their labor and reliance interests. Jurally, the legal concept of hostility focused on the intent of the adverse possessor towards the original owner and the asset in question, and examined the adverse possessor's state of mind. Courts emphasizing the element originally seemed to suggest that considerations of fairness required that only adverse possessors who acted in good faith, on the honest albeit erroneous belief that they were possessing their own land, could avail themselves of the doctrine. (179) These courts used the element (and its underlying concept of "hostility" or that the possession be "adverse") to deny other claimants any relief; again, in the belief that the fairness ideals underlying the doctrine were best served by this approach. (180)

   More recently, the fairness justification for adverse possession has begun to lose ground and an efficiency-based rationale has begun to gain sway. In this perspective, the goal of adverse possession is to put land to productive use, accomplishing this by simultaneously (1) penalizing slothful owners who allow their land to lay fallow and (2) incentivizing third parties to seek such fallow land and make efficient use of it. (181) On this view, not only was the good faith (i.e., mistaken belief) of the possessor irrelevant, but an affirmative bad faith--wherein the actor knew he or she was trespassing on another's property--was preferable. A minority of courts thus tried altering the very normative meaning of the concept of hostility to require a showing of bad faith, all in order to further their utilitarian emphasis. (182) This process was in essence an attempt to bring about normative change interpretively. In due course, however, this approach failed to garner support. (183) When this occurred, advocates of the normative change--towards utilitarianism--adopted an alternative strategy--namely, seeking such change through an interconceptual salience alteration.

   Instead of seeking to reinterpret the concept of hostility in terms of bad faith, courts came to adopt the view that the element of hostility, with its emphasis on the possessor's state of mind, was altogether irrelevant to the adverse possession analysis. (184) In its place, they elevated the element of actual possession and the concept of "actuality" underlying it. (185) Jurally, actual possession requires the court to undertake a factual and empirical examination of the nature of the possessor's use to see if the possessor behaves as a standard owner would. (186) In a vast majority of cases, all actual possession required was the enclosure or improvement of the relevant tract. Clearly, the concept of actuality is more consistent with the utilitarian justification for adverse possession, insofar as it privileges the possessor's actual use of the land. By emphasizing the importance of "actuality" over "hostility" in adverse possession, this approach ensured that the doctrine as a whole came to affirm the utilitarian ideal of effective land use rather than the doctrine's original fairness goals. (187) One element and concept (i.e., actual possession, and actuality) was emphasized, while another (i.e., hostility) was simultaneously deemphasized, in the process rendering salient the normative ideals associated with the former.

   A second example of interconceptual normative change is seen in the federal common law of copyright, specifically the famed fair use doctrine. The fair use doctrine sanctions certain unauthorized uses of copyrighted works that would otherwise constitute copyright infringement. (188) In adjudicating fair use cases, courts are required to consider four factors: First, they must consider the purpose of the defendant's allegedly infringing use, including whether the use is commercial or not and whether it is transformative in nature. (189) Second, they must take account of the nature of the plaintiffs copyrighted work. (190) Third, they have to weigh the amount and substantiality of the defendant's appropriation. (191) Finally, they must assess the copying's impact on the actual and potential market for the plaintiffs copyrighted work. (192)

   While fair use is today codified in the Copyright Act, it emerged from the decisions of common law and equity courts. (193) Indeed, Justice Story is commonly credited with originating the doctrine in his now famous opinion in Folsom v. Marsh. (194) Even while codifying the fair use doctrine, Congress intended that courts continue to develop it as they had done before, in traditional common law style through the "process of accretion." (195) Indeed, the legislative history accompanying the codification indicates that Congress mandated that "the courts must be free to adapt the doctrine to particular situations on a case-by-case basis." (196) A review of the courts' application and development of fair use jurisprudence since its codification reveals an ongoing tussle between the normative ideals of fairness and autonomy, and efficiency. (197) And in this tussle, we see courts effectively employing the mechanism of interconceptual change to mold the doctrine along the lines of their preferred normative goal.

   Early in the development of the doctrine, the rough idea of fairness-manifested in the notion of consumer autonomy--dominated the framing of the doctrine. One of the principal ways in which this was realized by courts was through an emphasis on the first fair use factor, which looks at the purpose of the defendant's use. In Sony Corp. of America v. Universal City Studios, Inc. ,198 the Supreme Court did precisely this. In emphasizing that the defendant's actions amounted to a fair use, the Court focused on the first factor and tied it to the concept of commercialism, noting that "every commercial use of copyrighted material is presumptively an unfair exploitation of the monopoly privilege that belongs to the owner of the copyright." (199) By converting commercialism into the cornerstone of the first fair use factor and implicitly making it the most salient factor in the...