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"[M]an, like a tree in the cleft of a rock, gradually shapes his roots to his surroundings, and when the roots have grown to a certain size, can't be displaced without cutting at his life."1
INTRODUCTION
In the above quotation, Justice Holmes explained title by prescription and the "strange and wonderful"2 doctrine of adverse possession. Judge Posner has argued that Holmes was making a point about the diminishing marginal utility of income.3 I think not. One purpose of this Article is to develop a different interpretation of Justice Holmes, an interpretation with roots in modern experimental psychology and the theory of loss aversion.4
Professors Stoebuck and Whitman stated in their property treatise, "If we had no doctrine of adverse possession, we should have to invent something very like it."5 That was true in the past and may still be true today, but it is not at all clear that it will remain true in the future. The more general purpose of this Article is to examine the various rationales for adverse possession, exploring a number of questions: Which rationales, if any, supply a satisfactory normative justification for the doctrine today and will continue to do so tomorrow? What harms would be done and benefits lost if
future wrongful possessions could never ripen into title? What reforms of the adverse possession doctrine may be beneficial?
The purpose of this Article is not to argue the historical reasons that adverse possession became part of our law or developed as it did. The purpose is to determine whether adverse possession is worth keeping. History may help us identify potential benefits of the doctrine, but it will not answer whether adverse possession continues to yield those benefits. Nor will history tell us whether other rules, rules with fewer negative consequences, could better serve the ends obtained by statutes limiting the time during which owners can bring actions to recover land.
I conclude that the case in favor of adverse possession is not overwhelming. Nevertheless, it does serve a useful purpose and can continue to do so in the future. For various reasons, a judicial allocation of land can turn out to be a lasting allocation of that land. The purpose of adverse possession is to reduce losses by getting...