Property Law Connections
Please join for all or any part of the second in our annual online Property Law Connections work-in-progress workshops. We are very fortunate to have six presentations, as well as a panel discussion, which between them will explore different aspects of property law and its connections with other areas such as trusts, legal history, public law, legal theory, and contract law.
The workshop will take place online on Teams. Registration in advance is required to receive the Teams log-in details. To register, please email ben.mcfarlane@law.ox.ac.uk. Material such as abstracts, handouts or papers will be circulated to registered participants two weeks before the workshop.
Schedule (timings subject to revision):
Session 1: Exploring Trusts
9.30am to 10.20am: Jessica Hudson (UNSW) and Charles Mitchell (UCL): Justificanda - This paper examines "the express trust" as an object for justification, arguing that "the trust" is a set of legal propositions that are designed to interact with one another as a system to produce an overall effect, which is to allow the parties to redefine the trustee's authority as the titleholder of trust property. "The trust" thus presents multiple objects for justification, and the paper considers how this might reveal new justifications for "trusts" and "trusts law", and help us to form a clearer understanding of justifications such as the autonomy rationale.
10.20am to 11.10am: Hanoch Dagan (Tel-Aviv) and Irit Samet (KCL): What's Wrong with Massively Discretionary Trusts - It is easy to see why massively discretionary trusts (MDTs) are widely condemned: after all, their raison d'etre is either tax avoidance or shielding resources from one's duties towards creditors, estranged spouses and the like. In response, "external" critics demonstrate that MDTs are deeply troublesome from a public perspective, while "internal" critics offer conceptual and doctrinal reasons for suspicion. Both perspectives are important; but neither fully captures what renders the MDT inherently scandalous. This paper seeks to offer this missing link. It is argued that MDTs are, at least on their face, abuses of the trust, namely: uses of this legal artefact in a way which threaten to undermine, rather than serve, its autonomy-enhancing telos.
Session 2: Issues in Land Law (and Trusts)
11.20am to 12.10pm: Ciara Kennefick (Oxford) - Continuous and Apparent Problems with "Continuous and Apparent" Easements - Building on a previous study of the tortuous and surprisingly cosmopolitan intellectual history of the concept of "continuous and apparent" easements, this paper argues that neither of those two adjectives has a sensible - or even any - purpose in the modern law, despite valiant attempts by judges to fashion a native English understanding of "continuous". It is therefore also argued that the concept of "continuous and apparent" should be discarded (judicially); no replacement is needed.
12.10 to 1pm: Panel Discussion on Two Recent Cases on Priorities - participants to include Sinéad Agnew and Amy Goymour (Cambridge) and Ben McFarlane and Aruna Nair (Oxford) - Examination and discussion of the potentially significant analyses of priorities issues by Sarah Worthington QC (Hon) sitting as a Deputy High Court judge in Ali v Dinc [2020] EWHC 3055 (Ch) and by Fancourt J in Byers v Samba Financial Group [2021] EWHC 60 (Ch).
Session 3: The Nature and Limits of Property
2pm to 2.50pm: Antonia Layard (Bristol) - Statues and the Paradox of Public Space - While public space is a widely used and even commonplace term, it rests on a paradox: we share an understanding of what public space is, yet we cannot legally define it. The consequence of this absence is that we rarely have a clear structure to guide decision-making, an absence that is particularly evident in spaces that contain "contested" heritage. This paper will consider the strains between the governance of public space and heritage protection, asking both how these tensions are legally produced and how they might be addressed.
3pm to 3.50pm: Yael Lifshitz (KCL) - Property Beyond Land - This paper shows how some of our key property assumptions are - literally - grounded in land. It argues that property law itself takes a view that is internal to land, which as a result ends up being external to many of the other resources to which property regimes are applied. One possible explanation for the "stickiness" of land is that land serves as an intuitive focal-point, a convenient proxy, around which human understandings can be reached. Challenging the role of land in our property paradigms is significant given the shifts in resource use, and the rising importance of non-land resources in our modern economy.
4pm to 4.50pm: Christopher Essert (Toronto) - On Some Liminal Cases of Property Rights - An important question for any theory of property is about what kinds of private rights do and do not count as property, and why. This presentation is based on material from a forthcoming book which answers that question normatively, by arguing that a right is a property right just when it realizes the idea of yours and mine.