The language of property: form, context, and audience.

Author:Smith, Henry E.

INTRODUCTION I. AUDIENCES IN POSSESSION AND RELATED LAW II. AN INFORMATIONAL TRADEOFF IN LANGUAGE AND THE LAW A. Information and Intensiveness 1. Convention and semantic meaning 2. Nonconventional or pragmatic meaning and principles of conversation B. Audience Design and Extensiveness C. Levels of Information Costs of Legal Relations by Audience Type 1. Purchasers 2. Successors in interest 3. Third-party enforcers 4. Potential violators 5. Market participants in general D. A Model of the Communicative Tradeoff E. Legal and Institutional Responses to Informational Externalities 1. Limiting the amount of information 2. Limiting reliance on special contexts 3. Limiting ambiguity 4. Nondefeasibility and structured search 5. Limiting audience responsibility III. DIFFERENTIAL FORMALISM AND THE INFORMATIONAL TRADEOFF A. Search and Notice in Land Records B. Specialized Audiences in Intellectual Property C. Contract Interpretation CONCLUSION INTRODUCTION

In many areas of the law, the notion of context is more important than ever. The realists and their successors tirelessly have pointed out how older, more "conceptualistic" or "formalistic" modes of legal thinking and interpretation obscure the richer reality to which law should respond. Property is one of the main battlegrounds in this struggle. The conventional wisdom that emerged over the course of the twentieth century holds that we should concern ourselves with entitlements--arbitrary bundles of rights, privileges, and the like--and whether we attach the label "property" to any given bundle is a choice that is likewise arbitrary. (1) As long as these choices are arbitrary, entitlements can be designed at will, to any degree of specificity, to further the policymaker's ends. No longer can the owner of Blackacre claim with much force that ownership entails the right to use the resource without interference. As long as the ownership of Blackacre is a bundle of sticks, any given right--say the right to exclude others from a beach--can just as easily be assimilated to anyone's bundle as to the owner's. Thus, the idea that a property right is a right to a thing that avails against the world has been replaced with the idea that a property right is only one possible entitlement plucked from a wide range of equally privileged results.

At first blush, the similarity between a system of entitlements and a language seems to lend further support to this (post) realist position. As is well-known, the relation between words and the things they refer to is arbitrary, the result of conventions that could easily have been different. "Book" could just as easily refer to what "plant" refers to, and vice versa. Nor is how we carve up conceptual space into word meanings completely determined by nature, as can be seen in the cross-linguistic variety of systems of color terms. (2) Moreover, work in the field of linguistic pragmatics--the study of how messages are communicated by using language--has demonstrated the central role of context in the interpretation of utterances. Just as with the bundle-of-rights view of property, bringing in the richness of context has allowed linguists to appreciate language systems' high degree of flexibility. And, as we will see, scholars of linguistic pragmatics and legal realists both define themselves in opposition to what they perceive as rigid and overly simplistic "formalism."

The broadly realist program of paying attention to social context focuses on the benefits of nuance in important ways. For example, splitting up an entitlement into finer bundles can allow specialization, internalization of externalities, and direct assertion of community goals to a greater degree than coarser-grained property rights. The realist program concerns itself with the benefits of detail to and by decisionmakers; and, to the extent realists consider costs, they consider the supply-side costs of writing down rules to delineate the sticks in the bundle, describing the contextual factors relevant to a judgment, and so on. At the same time, realism professes to be concerned with the audience for legally relevant communication. Most often, this takes the form of regarding judges as audiences for communications by various other actors such as contracting parties, legislatures, administrative agencies, or other judges. (3) And part of this court-centric tendency in realism focuses on clearing away obstacles, such as legal formalism, that stand in the way of clear, honest communication by and to judges.

I will argue that this view of property is not wrong but that it tells only one side of a more complex story, and that an investigation of the communicative aspect of property will lead to a more complete view. This Article considers the relationship between context and form, taking into account that the benefits and costs of communication vary with the nature of the audience. Relatively context-sensitive realism and relatively acontextual formalism can be seen as points along a spectrum of methods of striking a tradeoff between communicating a lot to a few or a little to many.

This informational tradeoff points to an unacknowledged tension lurking in the realist project of coupling nuanced decisionmaking with concern for the audience: Not all audiences--especially large and heterogeneous audiences--can process nuanced messages at reasonable cost. The realists and their successors argue that many features traditionally associated with formalism--from literalistic interpretation to standardization of property under the numerus clausus principle--are nothing more than archaic relics. (4) Controversy has centered on how far, if at all, the benefits of certainty in the law mitigate the inevitable incorrect results in some cases--much less the promotion of unattractive and outmoded values. (5) But, some of these "formalistic" devices reflect the need to limit the cost of processing messages about legal relations that are broadcast to wide audiences. If everyone in the world is expected to respect an owner's right to Blackacre, the content of that right cannot be too complicated or idiosyncratic without placing a large burden on many third parties. On the other hand, when two parties are deep within an ongoing relationship, their contractual language can be given substantial deference in all its idiosyncrasies. This even extends to a court's enforcing such idiosyncrasies as long as a court's efforts are likely to achieve accuracy at reasonable cost. Various situations fall between these extremes, and the law will accordingly adopt interpretive methods of an intermediate sort.

This Article will argue that much of the structure of property and related law stems from compromises inherent in a system of communication. In both law and linguistics, the less-studied side of communication relates to the audience. Only recently have linguists become sensitive to the differing impacts of addressees, nonadressee participants, and overhearers on speakers' choice of language style. This adjustment of speaker style according to the nature of the audience is called "audience design," (6) and I will argue that a similar adaptation to audiences occurs in the law. In law, it is often overlooked that information must be processed by those under a duty to respect rights and by those wishing to acquire rights, as well as by those expected to enforce rights. Once the full range of these different audiences and their costs of processing information about rights enter the picture, it is not clear that the detailed picking out of each stick in the bundle is always a good idea.

Because audiences of different types have different abilities to process messages, the nature of the audience has implications for the amount and form of the information communicated. When choosing a mode of communication, the aim is to maximize the net benefits of communication, that is, the excess of the benefits of communication over the costs of production and processing. "Processing costs," in the broad sense in which I use the term, include the costs incurred by a cognitive agent in receiving information from a message. (7) Given finite resources, one can communicate a lot to a few or a little to many.

To be more precise, we need to specify what, from the point of view of processing costs, it means to communicate a lot--and what the relevant characteristics of the audience are. Linguistic semantics is concerned with how various expressions convey information through the conventions of a language. To get a handle on this difficult topic, semantics has traditionally (and fruitfully) borrowed from the study of logic. (8) Both semantics and logic have in turn focused on certain limited but convenient symbolic systems. However, some limitations of this approach have become apparent. One such limitation is that the traditional tools have been so useful that they can disguise the fact that symbols are not the only way to represent information. Recently, a number of mathematicians, philosophers, linguists, and computer scientists have sought to model information independent of representational modes (such as symbols). (9) Representations of all kinds--symbols, diagrams, and even situations in the world--carry information. A first step toward capturing this larger picture is to measure the amount and distribution of information in situations.

For this task, information theory, as developed by Claude Shannon and others from the mid-twentieth century on, is a well-developed tool, and I will borrow its definition of the amount of information. (10) Information theorists concern themselves with the amount of information, and the maximum average flow of information through a given channel--something highly relevant to the early theorists' focus on applications to telecommunications. (11) This quantitative study of information has given us the useful notion of "bits" of information. Thus, if a coin toss can be heads or tails...

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