Abstract

The article proceeds as follows. As the information theory is a reaction to legal realism, Part I explores its antecedents in the work of Wesley Newcomb Hohfeld and Ronald H. Coase. Part II presents the information theory as arising from Professor Smith’s interpretation of the Coase theorem.11 In the imaginary world of TC0, we are supposedly indifferent to organizing by property and organizing by contract. Property eclipses contract as the organon of the economy because property reduces the cost of delineation and processing—of speaking and comprehending. We show that this theory is founded on a misunderstanding of Coase.

Part III sets forth the jurisdiction proper to an information theory of property. This part borrows a distinction invented by J.L. Austin—the difference between constative and performative speech. Professor Smith’s information theory of property is constative.12 That is, he posits O informing the “world” of a static underlying reality—O’s possessory right. But some speech does not report; it creates. To the extent speech creates a new reality, speech is performative. Performativity is out of bounds for Professor Smith’s information theory. As a result, an information theory does not capture an aspect of what is distinctive about property, which is empowerment of the owner against all others and the power to alienate.

Keywords

Schroeder, Carlson, Jeanne L. Schroeder, David Gray Carlson, Property and Information, Legal Realism, Death of Property