Abstract

http://ssrn.com/abstract=1016222
 


 



Demystifying the Right to Exclude: Of Property, Inviolability, and Automatic Injunctions


Shyamkrishna Balganesh


University of Pennsylvania Law School


Harvard Journal of Law and Public Policy, Vol. 31, Pg. 593, 2008
U of Chicago, Public Law Working Paper No. 182

Abstract:     
The right to exclude has for long been considered a central component of property. In focusing on the element of exclusion, courts and scholars have paid little attention to what it means for an owner to have a 'right' to exclude and the forms in which this right might manifest itself in actual property practice. For some time now, the right to exclude has come to be understood as nothing but an entitlement to injunctive relief - that whenever an owner successfully establishes title and an interference with the same, an injunction will automatically follow. This view attributes to the right a distinctively consequentialist meaning, calling into question the salience of property outside of its enforcement context. Yet, in its recent decision in eBay, Inc. v. MercExchange, LLC, the Supreme Court rejected this interpretation, declaring unequivocally that the right to exclude did not mean a right to an injunction. This Article argues that eBay's negative declaration serves to shed light on what the right has really meant all along - as the correlative of a duty imposed on non-owners (i.e., the world at large) to keep away from an ownable resource. This duty (of exclusion) in turn derives from the norm of inviolability, a defining feature of social existence and accounts for the primacy of the right to exclude in property discourses. This understanding is at once both non-consequentialist and of deep functional relevance to the institution of property.

Number of Pages in PDF File: 61

Keywords: property, injunctions, remedies, rights

JEL Classification: K11

Accepted Paper Series


Download This Paper

Date posted: September 22, 2007 ; Last revised: September 28, 2009

Suggested Citation

Balganesh, Shyamkrishna, Demystifying the Right to Exclude: Of Property, Inviolability, and Automatic Injunctions. Harvard Journal of Law and Public Policy, Vol. 31, Pg. 593, 2008; U of Chicago, Public Law Working Paper No. 182. Available at SSRN: http://ssrn.com/abstract=1016222

Contact Information

Shyamkrishna Balganesh (Contact Author)
University of Pennsylvania Law School ( email )
3400 Chestnut Street
Philadelphia, PA 19104
215-573-7780 (Phone)
HOME PAGE: http://sbalganesh.law.upenn.edu
Feedback to SSRN


Paper statistics
Abstract Views: 2,773
Downloads: 520
Download Rank: 28,416

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo3 in 0.313 seconds