Saturday, February 19, 2011

More on Merrill and Smith's Attempted Resurrection of the In Rem/In Personam Distinction

In yesterday's post on Thomas Merrill and Henry Smith's new article on Coase's conception of property (see here), I noted my strong disagreement with their efforts to resurrect the in rem/in personam distinction the common law inherited from Roman law, but which fell into obsolescence during the first part of the twentieth century. However, I did not present many of my reasons for opposing a return to the in rem/in personam distinction because I wanted to keep the focus of that post on Merrill and Smith's analysis of Coase.

So, just in case anyone's interested, I am embedding below a brief essay I drafted a few years ago, but never completed or published, in response to a few earlier articles by Merrill and Smith complaining about how property is treated in Law & Economics (prominently including Coase's theories) and advocating a return to the old in rem/in personam distinction.

In Rem In Personam Distinction

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