Monday, April 1, 2013

Roark on Trade Fixtures Doctrine, 1350-1803

We somehow missed the posting of Disease War and Waste: A Consideration of External Factors on the Trade Fixtures Doctrine between 1350-1803, by Marc Lane Roark, which appeared in volume 41 of the Cumberland Law Review.  Here is the abstract:
Between 1350 and 1803, eleven cases were decided that shaped the trade fixtures doctrine for jurisprudence in the English Commonwealth and its admirers. Prior to 1350, rights to things attached to real property were settled solely considering its attachment to the realty. However, between 1350 and 1803 dramatic shifts in the doctrine occurred. Interestingly, each of those shifts were paralleled by significant social seismic events. Instead, this essay considers not a particular moment in time, but rather a subset of doctrinal decisions that occur across a variety of moments. In short, this essay argues that the dates of the decisions deciding early trade fixture cases point to courts ruling out strict attachment as an all-encompassing fixtures definition, in favor of a more pliable and flexible doctrinal rule that could account for social unevenness between landlords and tenants. This essay attempts to contextualize in a very small subset of cases the slow turn away from attachment. This essay, considers the development of the trade fixtures doctrine in three movements: the early trade fixtures cases; the formative trade fixtures cases; and the refining trade fixtures cases.

No comments: