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Appropriability and Property

Yonatan Even

Columbia University - Law School

July 26, 2009

American University Law Review, Vol. 58, No. 6, 2009

This paper challenges the malleability of the idea of property as a relative, indeterminate "bundle of rights", which appears to dominate property doctrine at least since Ronald Coase's "The Problem of Social Cost". Focusing on the core goals of property regimes, the paper proposes an alternative view of property rights - one that is centered on the ability of owners to appropriate the benefits of their assets in the face of a threat from numerous potential adversaries, rather than their ability to contract such assets away within a bilateral context. This appropriability problem, it is argued, is a defining concept of private property regimes; it is not just one of many problems underlying private property, but rather the systemic problem that underlies property regimes, defines them and should serve as the measuring stick by which they should be assessed. The paper demonstrates how the shift to a multilateral, appropriability-based analysis allows for a fuller account of what must be the "core" or "baseline" of property rights. Using this account, the paper offers an evaluation of the relationship between such "core" rights and other types of rights traditionally associated with property doctrine, such as rights that have historically been granted to owners under the guise of property rights, contractual rights vis-a-vis third parties and constitutional rights against the public at large.

Number of Pages in PDF File: 60

Keywords: Appropriability, Coase, Property, Servitudes, Intellectual Property, Property Rights, Bundle, Merrill, Takings, First Sale, Exhaustion, Commons, Baseline

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Date posted: September 24, 2008 ; Last revised: August 26, 2009

Suggested Citation

Even, Yonatan, Appropriability and Property (July 26, 2009). American University Law Review, Vol. 58, No. 6, 2009. Available at SSRN: https://ssrn.com/abstract=1272831

Contact Information

Yonatan Even (Contact Author)
Columbia University - Law School ( email )
435 West 116th Street
New York, NY 10025
United States

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