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Exclusion and Private Law Theory: A Comment on Property as the Law of Things

Harvard Law Review Forum, Forthcoming, May 2012 (Symposium on 'The New Private Law Theory')

George Mason Law & Economics Research Paper No. 12-16

25 Pages Posted: 17 Feb 2012 Last revised: 22 Apr 2012

Eric R. Claeys

George Mason University

Date Written: February 15, 2012

Abstract

This Comment responds to an article by Professor Henry Smith, “Property as the Law of Things,” forthcoming in a symposium sponsored by the Harvard Law Review on “The New Private Law Theory.” In his lead Article, Professor Smith critiques what he calls the “bundle” picture of property, which he attributes to Legal Realists. Using an economic theory of information costs, Smith concludes that the bundle picture does not explain as many basic features of property as a “thing” picture.

I agree with Smith that the bundle picture suffers from many important problems, and I agree with his diagnoses of many of those problems. However, I prefer to study property not with economic analysis but with normative and analytical philosophy. Smith’s and my methodological differences may be of interest to the New Private Law Theory, which encourages close study of the criteria by which interdisciplinary theories of law purport to explain or justify private law. In that spirit, this Comment gives Smith’s information-cost economic analysis a hard look, relying on prior natural law and analytical legal positivist scholarship on the structure of the private law.

Keywords: absolute dominion, community, covenant, de minimis building encroachments, good faith, governance strategies, internal point of view, justification, land owners, liability, liberty, modularity, nuisance, public welfare, real estate, reason, remedy, remness, riparian rights, tort, trespass, wrongs

JEL Classification: K11

Suggested Citation

Claeys, Eric R., Exclusion and Private Law Theory: A Comment on Property as the Law of Things (February 15, 2012). Harvard Law Review Forum, Forthcoming, May 2012 (Symposium on 'The New Private Law Theory'); George Mason Law & Economics Research Paper No. 12-16. Available at SSRN: https://ssrn.com/abstract=2005860 or http://dx.doi.org/10.2139/ssrn.2005860

Eric R. Claeys (Contact Author)

George Mason University ( email )

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Arlington, VA 22201
United States
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