Research Handbooks in Law and Economics series
Edited by Kenneth Ayotte and Henry E. Smith
Chapter 14: Servitudes
Carol M. Rose In popular democracies, any legal doctrine with the name ‘servitude’ has a strike against it. According to the law of servitudes, generally speaking, one property is subordinate to another for some specified set of purposes, presumably in a kind of ‘service’ to the other. As if these intimations of hierararchy were not enough, in the United States, the servitudes that most readily come to mind for most people are racially restrictive covenants, now unenforceable for decades but still remembered as a part of a race-ridden history. Servitudes raise misgivings for another reason as well: their reputation for head-breaking and deal-breaking complexity. In spite of these caveats, servitudes are tremendously useful. They lie at the heart of sophisticated modern land developments as varied as shopping malls, common interest residential developments, and environmentally oriented land conservation arrangements. They now appear to be poised for an alternative life in intellectual property, where various devices have now come to the fore to enable promises to ‘run’ with software or information.1 None of these developments, of course, could have occurred without a considerable number of alterations in traditional servitude law, or without the development of a supporting legal institutional infrastructure. Perhaps the most dramatic signal of these changes is the arrival in 2000 of the American Law Institute’s new ‘Restatement’ of servitude law, in which this non-radical assemblage of notable lawyers and academics endorsed a dramatic simplification and paring-back of the bristling complications of traditional servitude law.2 These developments raise interesting issues...
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