The Thing about Exclusion

Brigham-Kanner Property Rights Conference Journal, Forthcoming

Harvard Public Law Working Paper No. 14-26

22 Pages Posted: 14 Jun 2014 Last revised: 20 Jun 2014

Date Written: June 12, 2014


In this contribution to a volume on the work property scholarship of Thomas Merrill, I will show how an account of property as the law of things completes the picture of property, putting the right to exclude in proper perspective. Contra Merrill, the right to exclude is not the sine qua non of property, and the main features of property cannot be derived from the right to exclude. Nonetheless, I will argue that Merrill is right to search for a unifying theme in property and that the relevant thread is the mediation of legal relations through things. From the role of the thing in depersonalizing and formalizing property relations, we can see when the right to exclude and closely related notions of possession are – and are not – important. Private law deals with the complex interactions of members of society, and a first cut at managing potential conflict is to carve the world into modular things, in tangibles or intangibles, and associate them with people through the norms and the law of property. More complex aspects of property from governance strategies to entity property build off of the legal thing. At the heart of property is the thing.

Keywords: Property, Right to Exclude, Bundle of Rights, Thing, Possession, Ownership, Salience, In Rem, Modularity

JEL Classification: K11

Suggested Citation

Smith, Henry E., The Thing about Exclusion (June 12, 2014). Brigham-Kanner Property Rights Conference Journal, Forthcoming, Harvard Public Law Working Paper No. 14-26, Available at SSRN:

Henry E. Smith (Contact Author)

Harvard Law School ( email )

1575 Massachusetts
Hauser 406
Cambridge, MA 02138
United States

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