The False Promise of the Right to Exclude
This essay explores an emerging issue in the criticism of the "bundle" conception of property: whether embracing the right to exclude as the core of property is sufficiently determinate to avoid the same disintegrating effects as the bundle conception. Thomas Merrill and Henry Smith believe so, and they have developed an extensive account of what I call the "exclusion conception of property." It is initially alluring as a solution to the problems caused by the bundle conception, but this is a false promise. Merrill and Smith are correct that the bundle conception is wrong, but their model of how the right to exclude functions in practice--what they call an "exclusion strategy"--cannot account for the substantial majority of property doctrines that are the subject of litigation. In practice, most property disputes arise not from intentional trespass and similar situations in which exclusion is the essential issue, but rather from ex ante relationships between individuals concerning the use, possession and disposition of property rights. Although Merrill and Smith claim that such doctrines are "governance strategies" that allegedly function only at the periphery of property law, these doctrines actually comprise the majority of property cases, including many trespass cases. Although trespass is supposed to represent the exclusion strategy par excellence, affirmative defenses and other counter-claims representing the so-called "governance strategies" often constitute the bulk of the actual litigation. Although the elegant reductionism of the exclusion conception makes it theoretically appealing, lawyers and economists should be wary of its promise of determinacy in saving property from the disintegrative effects of the bundle conception.
Volume (Year): 8 (2011)
Issue (Month): 3 (September)
|Contact details of provider:|| Postal: Enterprise Hall, Room 354, 4400 University Drive, 3G4 Fairfax, VA 22030|
Phone: (703) 993-1151
Web page: https://econjwatch.org/
More information through EDIRC
When requesting a correction, please mention this item's handle: RePEc:ejw:journl:v:8:y:2011:i:3:p:255-264. See general information about how to correct material in RePEc.
For technical questions regarding this item, or to correct its authors, title, abstract, bibliographic or download information, contact: (Jason Briggeman)
If you have authored this item and are not yet registered with RePEc, we encourage you to do it here. This allows to link your profile to this item. It also allows you to accept potential citations to this item that we are uncertain about.
If references are entirely missing, you can add them using this form.
If the full references list an item that is present in RePEc, but the system did not link to it, you can help with this form.
If you know of missing items citing this one, you can help us creating those links by adding the relevant references in the same way as above, for each refering item. If you are a registered author of this item, you may also want to check the "citations" tab in your profile, as there may be some citations waiting for confirmation.
Please note that corrections may take a couple of weeks to filter through the various RePEc services.