The Thing about Exclusion
Brigham-Kanner Property Rights Conference Journal, Forthcoming
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: Suggested Citation