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What’s common sense got to do with it?

By December 4, 2009Uncategorized

In my first year of law school I had to take a course called Common Law Property, which lasted a whole year. It was taught by a brilliant Harvard Law graduate who believed that, to understand our current legal rules, you need to understand how the rules came into being. 

Property law is, of course, focused on how title to property is acquired and then transferred. My professor spent weeks explaining how title to property was transferred in late Middle Ages. Basically, if you wanted to transfer a parcel of farmland to another nobleman you’d both have to mount your steeds and trot over to the plot of turf in question. Then, while you were both standing on the property itself, you’d have to reach down, grab a chunk of turf and then hand it to the transferee while reciting some pompous phrases. 

Today, transferring property is much easier. You still have to deal with pompous phrases (and reams of disclosure forms and bureaucratic paperwork). But, at least you don’t have to waste half a day riding to the property site. 

But, if you read some typical title documents you'll probably catch a whiff of history.  Look closely and you’ll see a lot of strange verbiage, most of which is pretty dense. This verbiage has been carried forward, fundamentally unaltered, from the good old Middle Ages. Sure, a few lawyers have updated their real estate forms to prune out the antiquated, and unnecessary, legal arcana. But most lawyers haven’t, and wouldn’t feel comfortable doing so. 

Lawyers love forms, especially ones that have been in service for centuries. In their minds, this gives forms the 'weight of precedent.' And, strange as it may seem to a layperson, precedent is more valuable than common sense. 

Why is that? 

Well, lawyers believe in efficiency.  They want a smoothly functioning legal system, which of course we don't really have.  But, how much more slowly would our system be if lawyers had to explain, in common sense terms, why they do what they do? No my friends, common sense is not the way to go.  If we want to keep things running smoothly we need for people to accept the idea that what we do is inherently lofty and supremely noble. 

This is why precedent is so much more valuable than common sense.

If you use ‘precedent’ (especially really old precedent) as your justification, then ordinary people can’t really question what you do. If they do, you just snort “well, this is the way it’s been done for many centuries” —thereby deftly bypassing whether developments in the last couple of hundred years might call for new procedures. 

The notion of abandoning well-established patterns makes most lawyers nervous. Some lawyers are so wedded to those patterns they'll have a nervous breakdown if you try to take them away. I predict that, somewhere at this very moment there's a lawyer who's visibly trembling at a real estate closing because no one brought a clump of dirt. God forbid some ‘clever lawyer’ later challenges the validity of the transfer.

So, if you want to do your lawyer a big favor, next time you go to a real estate closing bring along a clump of dirt.

One Comment

  • Renee Aguilar says:

    This reminded me of a (de)motivational poster available at “TRADITION: Just because you’ve always done it that way doesn’t mean it’s not incredibly stupid.”

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