The Value of the Right to Exclude: An Empirical Assessment

50 Pages Posted: 29 Mar 2016 Last revised: 31 Mar 2017

See all articles by Jonathan Klick

Jonathan Klick

University of Pennsylvania Law School; Erasmus School of Law; PERC - Property and Environment Research Center

Gideon Parchomovsky

Hebrew University of Jerusalem - Faculty of Law

Date Written: 2017


Property theorists have long deemed the right to exclude fundamental and essential for the efficient use and allocation of property. Recently, however, proponents of the progressive property movement have called into question the centrality of the right to exclude, suggesting that it should be scaled back to allow the advancement of more socially beneficial uses of property. Surprisingly, the debate between the opponents and detractors of the right to exclude is devoid of any empirical evidence. The actual value of the right to exclude remains unknown.

In this Article, we set out to fill this void by measuring, for the first time, the value of the right to exclude. To that end, we use the passage of the Countryside and Rights of Way Act in England and Wales in 2000 as a natural experiment to provide some empirical insight on this issue. We show that the Act’s passage led to statistically significant and substantively large declines in property values in areas of England and Wales that were more intensively affected by the Act relative to areas where less land was designated for increased access. While property prices may not capture all social value, our findings provide a critical input to the debate regarding access to private property. Given that the access rights provided by the “right to roam” included in the Act represent seemingly minimal intrusions on private property, our findings indicate that property owners view even small restrictions on their right to exclude very negatively.

We believe that our findings are of significant importance to lawmakers in the U.S. as they provide an empirical basis for policymaking in the realms of property and land use. In the U.S., private property rights enjoy constitutional protection under the Takings Clause of the Fifth Amendment. Hence, any attempt to formalize a general right to roam or other intrusions on the right to exclude may require the government to pay just compensation to affected property owners. Our study suggests what the compensation amounts are likely to be. This information would allow law-makers to make better decisions about the social desirability of various land use measures. We would like to emphasize that our findings should not be read as a call against the adoption of a right to roam, or any other public privilege. Our only goal is to furnish a much needed empirical foundation that would permit law-makers to conduct a more precise cost-benefit analysis of different policies.

Keywords: Property, Property Rules, Land Use, Public Use, Exclusion, Constitutional Law, Fifth Amendment, Takings, Valuation of Taking, Value of Right to Exclude, Right to Roam, Sharing Economy, Law & Economics

JEL Classification: D23, K11, P14

Suggested Citation

Klick, Jonathan and Parchomovsky, Gideon, The Value of the Right to Exclude: An Empirical Assessment (2017). University of Pennsylvania Law Review, Vol. 165, P. 917, 2017, U of Penn, Inst for Law & Econ Research Paper No. 16-8, Available at SSRN:

Jonathan Klick

University of Pennsylvania Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States
2157463455 (Phone)

Erasmus School of Law ( email )

3000 DR Rotterdam

PERC - Property and Environment Research Center

2048 Analysis Drive
Suite A
Bozeman, MT 59718
United States

Gideon Parchomovsky (Contact Author)

Hebrew University of Jerusalem - Faculty of Law ( email )

Mount Scopus
Mount Scopus, IL 91905

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