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Rescuing the Bundle-of-Rights Metaphor in Property Law


Jane B. Baron


Temple University - James E. Beasley School of Law

2013

University of Cincinnati Law Review, Vol. 82, No. 1, 2014
Temple University Legal Studies Research Paper No. 2013-22

Abstract:     
For much of the twentieth century, legal academics conceptualized property as a bundle of rights. But property theory today is deeply divided between theorists who focus on property’s ends, i.e., its reflection of values such as democracy or human flourishing, and those who focus on property’s means, i.e., its use of qualities such as modularity and exclusion to manage complexity in a cost-effective way. The bundle-of-rights conceptualization has been swept up into the controversy, becoming the particular target of means-focused theorists, who argue that the bundle conceptualization obscures critical features of the property system, most notably its use of strategies of exclusion, in rem rights, and indirectness. These theorists assert that, twentieth century wisdom notwithstanding, property is not a bundle of rights but rather is a law of things.

Contrary to these theorists, this Article argues that the bundle-of-rights conceptualization remains useful both descriptively and normatively. First, the bundle conceptualization produces more precise specification of the legal relations of parties in both simple and complex property arrangements. Second, it clarifies the normative choices that underlie decisions about property. Third, it focuses attention on the quality of the relationships that property constructs. Finally, bundle-of-rights analysis generally forces information forward. Because the information produced by the granular analysis of property bundles is useful, the bundle of rights metaphor should not be displaced or abandoned. Indeed, the complexity of contemporary property issues — and in particular their growing connection to the alternative legal fields of privacy and intellectual property — makes the bundle conceptualization all the more fruitful.

Number of Pages in PDF File: 45

Keywords: property, bundle of rights, law of things, in rem rights, metaphor, exclusion, electronic health records, data bases

JEL Classification: K11

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Date posted: April 3, 2013 ; Last revised: April 8, 2014

Suggested Citation

Baron, Jane B., Rescuing the Bundle-of-Rights Metaphor in Property Law (2013). University of Cincinnati Law Review, Vol. 82, No. 1, 2014; Temple University Legal Studies Research Paper No. 2013-22. Available at SSRN: http://ssrn.com/abstract=2243668

Contact Information

Jane B. Baron (Contact Author)
Temple University - James E. Beasley School of Law ( email )
1719 N. Broad Street
Philadelphia, PA 19122
United States
215-204-8975 (Phone)
215-204-1185 (Fax)
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