Property 101: Is Property a Thing or a Bundle?

33 Pages Posted: 6 Feb 2009 Last revised: 30 Jun 2009

Eric R. Claeys

George Mason University

Date Written: June 29, 2009

Abstract

This Review Essay reviews Property: Principles and Policies (2007), by Thomas W. Merrill and Henry E. Smith, focusing particularly on its conceptual claim that property consists primarily of a "right to exclude." On one hand, Property: Principles and Policies is a novel and important casebook because exclusion illuminates the first-year property course better than the organizing themes of many other leading casebooks. On the other hand, the "right to exclude" suffers from limitations that deserve to be fleshed out more fully. Conceptually, property is better understood as a right of exclusive use determination. Economically, "exclusive use determination" explains, as a "right to exclude" does not, the use and disposition rights that encourage owners to maximize the values of the assets they exclusively own. The Essay illustrates using trespass, nuisance, property-rule/liability-rule doctrines, rent control, and the public-use limitation in eminent domain.

Keywords: Ackerman, Coase, Calebresi, Dukeminier, economic analysis, enjoyment, eminent domain, environmental regulations, exclusivity, Krier, land use, Melamed, ownership, Singer, State v. Shack, subjective valuation, zoning

JEL Classification: D23, H82, K11

Suggested Citation

Claeys, Eric R., Property 101: Is Property a Thing or a Bundle? (June 29, 2009). Seattle University Law Review, Vol. 32, No. 3, pp. 617-650, Spring 2009; George Mason Law & Economics Research Paper No. 09-09. Available at SSRN: https://ssrn.com/abstract=1338372

Eric R. Claeys (Contact Author)

George Mason University ( email )

3301 Fairfax Drive
Room 420
Arlington, VA 22201
United States
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