Property Beyond Exclusion

36 Pages Posted: 1 Mar 2019 Last revised: 27 Mar 2019

See all articles by Lee Anne Fennell

Lee Anne Fennell

University of Chicago - Law School

Date Written: February 22, 2019

Abstract

Property rights have long been associated with a simple and distinctive technology: exclusion. But technologies can become outdated as conditions change, and exclusion is no exception. Recent decades have featured profound changes that have made exclusion a less useful, less necessary, and more expensive way of regulating access to resources. This paper surveys the prospects for a post-exclusion understanding of real and personal property. It proceeds from the premise that property is built upon complementarities, the nature and scale of which have undergone seismic shifts. Physical boundaries and lengthy claims on resources are designed to group together elements in time and space that can, in combination, generate value. Doing so allows owners to internalize the effects of that consolidated value-production system. But many of the most important complementarities are now found not within a given owner’s holdings but among the holdings of different owners. Moreover, as slices of on-demand access increasingly replace lumpy long-term possessory interests, the presumed strong complementarity associated with temporal continuity and spatial contiguity begins to break down. I show how these trends have made property lines an increasingly poor mechanism for grouping together complements. I then consider how property rights might move beyond exclusion, and address some implications and objections.

Suggested Citation

Fennell, Lee Anne, Property Beyond Exclusion (February 22, 2019). William & Mary Law Review, Vol. 61 (2019 Forthcoming); University of Chicago Coase-Sandor Institute for Law & Economics Research Paper No. 873; U of Chicago, Public Law Working Paper No. 701. Available at SSRN: https://ssrn.com/abstract=3339980

Lee Anne Fennell (Contact Author)

University of Chicago - Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States
773-702-0603 (Phone)

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