The Reconstitution of Property: Property as a Web of Interests
84 Pages Posted: 25 Oct 2007
The metaphor of property as a "bundle of sticks: or "bundle of rights" leads to the "disintegration of property": a concept of property that is too incoherent, ill-defined, and malleable to be meaningful. This article identifies several theoretical problems with the bundle of rights metaphor, and proposes a new metaphor of property as a web of interests.
The "web of interests" metaphor describes property as interests - including responsibilities, as well as rights - that people, groups, and entities share in objects of those interests (whether tangible or intangible objects). These interests vary with the nature or characteristics of the object, which is at the center of the web. The object's specific characteristics matter both legally and socially. The article identifies 15 different legally relevant categories of object characteristics, as well as 9 strands of connection in the web's relationships.
The "web of interests" metaphor is built upon emerging environmental, personhood, and expectations theories of property, as well as empirical observation of both judicial and social practice. The article examines several areas of property law in light of the insights gained from this new metaphor, including: 1) regulatory takings and land use; 2) nature-oriented limitations inherent in land and water rights (e.g., public trust doctrine, natural use doctrine, nuisance doctrine); 3) property interests in wildlife and wildlife habitat; 4) property interests in corporations; and 5) the right to exclude and expressive use.
Keywords: property, bundle of sticks, bundle of rights, web of interests, land use, regulatory takings, environment, nature, public trust, natural use, nuisance, land, water, environment, wildlife, corporations, right to exclude, land ethics, object, object characteristics, social relationships, real property
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