Ted M. Sichelman (University of San Diego School of Law) has posted Very Tight 'Bundles of Sticks': Hohfeld's Complex Jural Relations (Forthcoming, The Legacy Of Wesley Hohfeld: Edited Major Works, Select Personal Papers, And Original Commentaries, (Shyam Balganesh, Ted Sichelman & Henry Smith eds., Cambridge University Press, 2018)) on SSRN. Here is the abstract:
The preeminant legal theorist, Wesley Hohfeld, began his landmark 1913 article, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, by impugning existing analytical treatments of trusts, yet noticeably never fully explained his own view of trusts as a “complex aggregate” of “fundamental” relations. In the last footnote to the article, Hohfeld stated that in his “next article . . . . some attention will be given to the nature and analysis of complex legal interests, or aggregates of jural relations.” Unfortunately, as the editor of his collected works, Walter Wheeler Cook, remarked, Hohfeld’s “untimely death prevented the carrying out of the remainder of the plan.” In this chapter, I undertake the beginnings of the “remainder of the plan” by proposing a set of Hohfeldian complex jural relations, including a “common right,” “common liberty,” and “constitutional right.” The precise construction of the complex Hohfeldian relations helps to explain the role modularity plays in the assembly of jural relations in real property, torts, constitutional law, and other fields. Additionally, as legal artificial intelligence has become increasingly prominent, properly categorizing these jural admixtures is of great practical concern to the growing digital economies leveraging legal “toolkits.”
