Exclusion and Exclusivity in Gridlock

41 Pages Posted: 13 Nov 2010 Last revised: 9 Dec 2010

Date Written: November 11, 2010


This Essay reviews Michael Heller’s book The Gridlock Economy, focusing especially on its conceptual priors. The book assumes as true the conception that follows from Calabresi and Melamed’s Cathedral framework, whereby property consists of a right to exclude others, and invasions of the right to exclude may be remedied by a property rule. This definition departs significantly from the conception of property that informs social practice and private law, whereby property consists of a normative interest in determining exclusively the use of an external asset.

These differences lead The Gridlock Economy to make several conceptual and normative errors. In some cases (Moscow storefronts and Rhenish tolls), the book criticizes legal institutions for having too much property when in fact the problematic institutions do not actually institute property relations. In other cases (cotenancy partition and airplane overflights), the book criticizes legal institutions for creating too much property when in fact existing law already scales property’s exclusivity to its tendency to encourage the free and concurrent use of the propertized asset. And in some cases (redevelopment and private eminent domain), the book favors ad hoc government administration of property disputes without being sensitive enough to the roles that socialization and respect for owner free action ordinarily play in property law.

Keywords: accession, ad coelum, anticommons, David Bollier, encroachment, exclusion, exclusive use determination, Garrett Hardin, Harold Demsetz, innovation, Karl Marx, liability, licensing, markets, ouster, Penner, telecommunications, tollbooth, Tragedy of the Anticommons, trespass, USSR, urban renewal

JEL Classification: K11

Suggested Citation

Claeys, Eric R., Exclusion and Exclusivity in Gridlock (November 11, 2010). Arizona Law Review, Forthcoming; George Mason Law & Economics Research Paper No. 10-58. Available at SSRN: https://ssrn.com/abstract=1707547

Eric R. Claeys (Contact Author)

George Mason University ( email )

3301 Fairfax Drive
Room 420
Arlington, VA 22201
United States
(703) 993-8247 (Phone)
(703) 993-8202 (Fax)

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