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Rule of (Out)Law: Property's Contingent Right to Exclude

15 Pages Posted: 3 Dec 2007 Last revised: 2 May 2008

Elizabeth M. Glazer

Hofstra University - Maurice A. Deane School of Law

Abstract

Anything for love;
I would do anything for love;
I would do anything for love;
But I won't do that;
I won't do that.

When Meat Loaf mystified scores of listeners in the early nineties by his logically inconsistent song lyrics, he almost certainly did not look to property law when answering his fans most popular question. This Essay does not argue that he should have. However, Meat Loaf's (in)famous song lyrics may be able to shed light on what has become a popular question among property fans, namely what is the nature of the right to exclude.

This Essay argues that an owner's invocation of the right to exclude depends upon the owner's invocation of other rights in the property bundle. In so arguing, the Essay analyzes current efforts to understand the right to exclude through the lens of the property outlaw, whom Eduardo Moisés Peñalver & Sonia K. Katyal profile in their recent article, Property Outlaws. The Essay highlights the effects of Professors Peñalver's and Katyal's argument on the nature of property's right to exclude. After summarizing recent efforts to understand the right to exclude, describing Peñalver's and Katyal's argument that outlaw behavior has a special and socially productive function in property law, and explaining the connection between their article and the right to exclude, the Essay concludes by proffering evidence that Meat Loaf may have audited a first year property course, or at least that he incorporated insights about property law into his music.

Keywords: property, land use, jurisprudence, exclusion

Suggested Citation

Glazer, Elizabeth M., Rule of (Out)Law: Property's Contingent Right to Exclude. University of Pennsylvania Law Review, 2008; Hofstra Univ. Legal Studies Research Paper No. 07-34. Available at SSRN: https://ssrn.com/abstract=1051581

Elizabeth M. Glazer (Contact Author)

Hofstra University - Maurice A. Deane School of Law ( email )

121 Hofstra University
Hempstead, NY 11549
United States

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