Two Cheers for the Bundle-of-Sticks Metaphor, Three Cheers for Merrill and Smith

Abstract:     
Viewing property rights as a “bundle of sticks” can be descriptively clarifying because the law commonly entitles an owner of a particular resource to split up entitlements in it. Nonetheless, Thomas Merrill and Henry Smith, the most prominent critics of the metaphor, assert that this conception both ignores the existence of various legal constraints on the decomposition of property rights, and also encourages lawmakers to support the excessive splintering of entitlements. These concerns are well-grounded. More controversial are Merrill and Smith’s inclinations to equate private property with property generally, to deny that human capital can be characterized as property, and to assert that affirmative duties never attach to property ownership.

Number of Pages in PDF File: 10

Keywords: property, bundle of rights, exclusion, legal realism, law and economics

JEL Classification: A1, K00, K1

Accepted Paper Series