Property and the Right to Exclude

• Publication year: 2021

77 Nebraska L. Rev. 730. Property and the Right to Exclude

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Thomas W. Merrill*

Property and the Right to Exclude

TABLE OF CONTENTS

I. Introduction .......................................... 730
II. The Right to Exclude and the Concept of Property ...... 731
A. Points of Consensus ................................ 731
B. Three Schools of Thought Regarding the Right to
Exclude ............................................... 734
III. The Primacy of the Right to Exclude ................... 740
A. The Logical Primacy of the Right to Exclude ........ 740
B. The Historical Primacy of the Right to Exclude ..... 745
C. The Ubiquity of the Right to Exclude ............... 747
IV. Some Qualifications and Implications .................. 753
V. Conclusion ............................................ 754

I. INTRODUCTION

The Supreme Court is fond of saying that "the right to exclude others" is "one of the most essential sticks in the bundle of rights that are commonly characterized as property."(fn1) I shall argue in this Essay that the right to exclude others is more than just "one of the most essential" constituents of property-it is the sine qua non. Give someone the right to exclude others from a valued resource, i.e., a resource that is scarce relative to the human demand for it, and you give them property. Deny someone the exclusion right and they do not have property.

Of course, those who are given the right to exclude others from a valued resource typically also are given other rights with respect to the resource-such as the rights to consume it, to transfigure it, to transfer it, to bequeath or devise it, to pledge it as collateral, to subdivide it into smaller interests, and so forth. These other rights are obviously valuable and important, and it is not improper to speak of

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them as part of the standard package of legal rights enjoyed by property owners in most contexts. My claim is simply that in demarcating the line between "property" and "nonproperty"-or "unowned things" (like the air in the upper atmosphere or the resources of the ocean beyond a certain distance from shore)-the right to exclude others is a necessary and sufficient condition of identifying the existence of property. Whatever other sticks may exist in a property owner's bundle of rights in any given context, these other rights are purely contingent in terms of whether we speak of the bundle as property. The right to exclude is in this sense fundamental to the concept of property.

Understanding the role the right to exclude plays in defining property is important for several reasons. First, having a better grasp of the critical features of property may promote a clearer understanding of the often-arcane legal doctrine that surrounds this institution. Second, understanding the domain of property is an important preliminary step in developing a justification or critique of property from the perspective of distributive justice. Third, formulating a more precise conception of property may be necessary in order to offer a complete account of constitutional provisions like the Due Process Clause and the Takings Clause that protect "property." In any event, for those who have devoted themselves to teaching the law of property, the question is one of intrinsic interest, whether or not it has any payoff in resolving more immediate concerns.

In Part II of the Essay, I will locate the role that the right to exclude others plays in the larger debate about the meaning of property. In Part III, I will offer three arguments why the right to exclude- what I will sometimes call the "gatekeeper right"-should be given primary place in defining property. In Part IV, I offer some qualifications to my thesis.

II. THE RIGHT TO EXCLUDE AND THE CONCEPT

OF PROPERTY

Within the existing literature about the institution of property, there is a broad consensus about several propositions. This consensus does not extend, however, to the precise role that the right to exclude plays in defining that institution. I will briefly enumerate the principal points of consensus, and then turn to the disagreement over how to characterize the role of the right to exclude.

A. Points of Consensus

First, nearly everyone agrees that the institution of property is not concerned with scarce resources themselves ("things"), but rather with

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the rights of persons with respect to such resources.(fn2) A copy of Tom Wolfe's latest novel sitting in a bookshop is a scarce resource. But considered solely as an object, it is not property. The book can be characterized as property only by invoking certain rights that persons have with respect to it. For example, the book might be said to be the property of the bookshop, meaning that the bookshop has certain rights with respect to the control and disposition of it. Or the book might be said to be the property of a customer who has purchased it from the bookshop, in which case the customer would have certain rights with respect to the control and disposition of it.

Similarly, there is a consensus that the concept of property includes the rights of persons with respect to both tangible and intangible resources. Most people understand, at least in some dim fashion, that Tom Wolfe has something called a "copyright" in the contents of the book he has written, and that this copyright is Wolfe's property. They understand this to mean that Wolfe has certain rights with respect to reproduction of the book, and that these rights are separate and distinct from the rights that exist with respect to particular physical copies of the book.

There is also a consensus that property means something different than mere possession. In both lay and legal understanding, to speak of possession of scarce resources is to make a statement of fact about which persons are in control of particular resources.(fn3) Property, in contrast, refers not to a statement of fact but to a norm (or norms). Thus, if I pick up a copy of Tom Wolfe's book in the bookstore and start to read it, I can be said to be in possession of the book. But I cannot be said to own it; it is the property of the bookshop until I pay for it. Moreover, it is understood that property rights generally trump possessory rights.(fn4) After reading the Tom Wolfe novel in the bookshop for 15 minutes, the shopkeeper may ask me either to buy it or put it

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down. The shopkeeper is entitled to make this demand, since the bookshop has a property right in the book superior to my possession of it.

Given that property is a norm, there is also a consensus that property cannot exist without some institutional structure that stands ready to enforce it. The usual assumption is that this institution is the state. But it is also possible that it is meaningful to speak of property rights in contexts governed by less formal enforcement mechanisms, such as social ostracism. Thus, it may be possible to speak of property rights in library carrels, or in particular bedrooms in homes, where it is understood that certain persons have normative claims to these scarce resources and that these claims will be enforced by the common consent of those who participate in a particular social unit.(fn5) With respect to most controversies of concern to lawyers, however, property rights "are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law-rules or understandings that secure certain benefits and that support claims of entitlement to those benefits."(fn6)

Finally, there is a consensus that the concept of property is not limited to private property, but includes also what may be called common property and public property.(fn7) Private property may be said to exist where one person or a small number of persons (including corporations and not-for-profit organizations) have certain rights with respect to valuable resources. Common property may be said to exist where all qualified members of a particular group or community have equal rights to valuable resources. An example would be a common pasture open to all members of a particular village for the grazing of livestock. Public property may be said to exist where governmental entities have certain rights with respect to valuable resources, analogous to the rights of private property owners. An example would be a municipal airport.

In sum, there is a general consensus that property refers to particular rights of persons or entities with respect to scarce tangible and intangible resources; that property is distinct from and superior to the mere possession of resources; that the rights associated with property require some institutional structure that stands ready to enforce these rights; and that property may be private, common, or public.

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B. Three Schools of Thought Regarding the Right to
Exclude

There is, however, much less consensus regarding the nature and content of the particular rights that persons have when they are said to have property. In particular, although it is widely agreed that someone who has property in a resource typically will have at least some right to exclude others from using or interfering with that resource, there is disagreement about how central this right is to the understanding of property. Generally speaking, it is possible to identify three different intellectual traditions regarding the role of the right to exclude. These may be called "single-variable essentialism," "multiple-variable essentialism," and "nominalism."

Probably the oldest continuing tradition in attempts to define property is essentialism-the search for the critical element or elements that make up the irreducible core of property in all its manifestations. The patron saint of property essentialism is William Blackstone, the first full-time law...