UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 32, No. 3SPRING 2009
BOOK REVIEW
PROPERTY 101: IS PROPERTY A THING OR A BUNDLE?
Eric R. Claeys(fn*)
Property: Principles and Policies. By Thomas W. Merrill and Henry E. Smith. New York: Foundation Press, 2007. Pp. xliii, 1396. $134.
I. Introduction
Normally, the market for property casebooks operates at near-perfect competition. All the books cover familiar topics-acquisition, estates, landlord-tenant, and land use. Casebooks differentiate by length, by choosing to stress practice or theory, or by illustrating property's unifying themes around land or other specialized fields of property law.
Occasionally, however, the market for a casebook gets hit by a gale of creative destruction.(fn1) One such gale may now be gathering in property law, thanks to Property: Principles and Policies, by Thomas Merrill and Henry Smith, both of Yale Law School.
Merrill and Smith organize Property: Principles and Policies around two important themes. The casebook integrates economic analysis into legal presentation more than any other casebook on the market. Merrill and Smith also organize their presentation around a conception of property grounded in exclusion. "[T]he right to exclude others," they claim, explains the core of property better than an "ad hoc 'bundle of rights' without any distinguishing features." (P. v.)
This Review Essay has two aims. My more immediate aim is to assess where Merrill and Smith's contribution fits in the market for first-year Property casebooks. In short, Property: Principles and Policies represents an important advance in property pedagogy. By focusing thematically on exclusion's efficiency, Merrill and Smith have captured many important features of property overlooked by other casebooks.
My longer-range aim is to advance the reclamation project Merrill and Smith have begun, by clarifying further the work that exclusivity does in property law. Property: Principles and Policies brings contemporary scholarship a long way toward appreciating the virtues of exclusivity, but there is still a long way to go. Merrill and Smith conceive of property at its core as a right to exclude others from a thing. Others of us sympathetic to property's exclusive tendencies prefer to conceive of property as a right exclusively to determine a thing's use.
II. Bundles, Things, and Casebooks
Property: Principles and Policies portrays the foundational issues in the first-year property course in terms of a conflict between two different theoretical conceptions of property. The book's hypothesis is that "property at its core entails the right to exclude others from some discrete thing." (P. v.) Although this claim needs clarification,(fn2) for the time being I will call it the "thing" or "thing-ownership" conception of property. According to the alternative, all possible organizing conceptions for property are "so riddled with qualifications that property can only be regarded as an ad hoc 'bundle of rights' without any distinguishing features." (Id.) Here, Merrill and Smith tacitly distinguish their book from virtually all of its rivals, which refer to property as "a number of disparate rights, a 'bundle' of them: the right to possess, the right to use, the right to exclude, the right to transfer."(fn3) In this Essay, I refer to the conception to which Merrill, Smith, and this competitor are referring as "the ad hoc bundle" conception.
Although Merrill, Smith, and their competitors all agree that the thing versus ad hoc bundle contrast is significant, it is surprisingly difficult to specify what the contrast really means. Although Merrill and Smith's contrast seems to frame a conceptual disagreement, the thing and ad hoc bundle conceptions probably serve as shorthands for different normative accounts of property. Merrill and Smith are presuming as true and useful what might be called "applied" or "apologetic" conceptual theory. Since applied or apologetic conceptual theory sound like contradictions in terms, let us consider Merrill and Smith's contrast more closely.
More so than other foundational fields of private law, property contains a tension between foundations and expertise. To push assets into private ownership, property law often endows owners with coarse and undifferentiated packages of use rights. The owner of land has near-total discretion to decide who may or may not enter his land, and a broad domain of discretion to decide how to use the land among many undelineated uses. That background discretion may facilitate further private ordering. The owner may use her land as the sole asset for a real estate development company, assign equity in the company to investors, mortgage the land to secure debt, or subdivide the land into smaller parcels and then impose reciprocal servitudes on all of the subdivided parcels. Specialized terms also facilitate government regulation more intricate than common law and private ordering would allow-like zoning or environmental regulations.
The competing needs for coarseness and granularity create a tension which Merrill and Smith have analogized to a pyramid. The "problem of order" lays the "base" of the pyramid, while "the maximization of welfare" sits at the "apex."(fn4) That tension leads to two extremes to be avoided in academic property scholarship. One is to analyze property issues strictly in terms of foundational priorities without explaining how complex arrangements build on simple foundations. The other is to focus on all of the considerations that make a specialized issue of property distinct, abstracting away from foundational priorities. In this Essay, I refer to that latter tendency as the "instrumentalist" tendency.
When judges and academic property lawyers refer to property as a bundle of rights, many of them use the bundle metaphor as conceptual shorthand for an implicit normative claim: that policy analysis may treat property as an instrument for directly promoting immediate policy goals, without disrupting property's foundational functions. Not all do, but enough do that other lawyers know what the former mean when they use the bundle metaphor the right way in the right contexts. For example, in a 1980 book on eminent domain, Bruce Ackerman views the first-year Property course as means to inculcate instrumentalist policy instincts in lawyers:[O]ne of the main points of the first-year Property course is to disabuse entering law students of their primitive lay notions regarding ownership.... Instead of defining the relationship between a person and 'his' things, property law discusses the relationships that arise between people with respect to things. More precisely, the law of property considers the way rights to use things may be parceled out amongst a host of competing resource users.(fn5) According to Ackerman, it is imprecise to assume that an asset must have a single "owner" and more precise to speak of her as one of several resource users who happens to have especially strong interests in the asset. Implicitly, expert regulators (Ackerman calls them "Scientific Policymakers"(fn6)) decide which competing resource users get which rights to use things-making these decisions all the while by focusing on the immediate claims of the claimants and not the more general and diffuse foundational priorities associated with thing-ownership. The ad hoc bundle conception implicit in this passage facilitates and reflects the sort of "expert-oriented view" at which Merrill and Smith are aiming.(fn7)
Many leading policy-oriented casebooks illustrate Ackerman's general approach.(fn8) Consider Joseph Singer's Property Law: Rules, Policies, and Practices(fn9) The book's opening guide assumes "[o]wners of property generally possess a bundle of entitlements," and signals that the book is generally sympathetic to normative theories it clusters together as "social relations" theories, which examine "the role property rights play in structuring social relations" and vice versa.(fn10) Social-relations theories use the bundle conception to make property an instrument for equalizing power relations between sexes, among races, among people of different economic backgrounds, and in relation to other similar classifications.
Social-relations theory presupposes that property does and should consist of an ad hoc bundle of rights. Property Law's epigraph comes from a criminal-trespass opinion, State v. Shack.(fn11) In Shack, the New Jersey Supreme Court construed a farm owner's possessory interest in control narrowly, so he could not institute a trespass action against two government-funded migrant advocates who entered his property to meet a migrant worker he was housing on the farm.(fn12) To justify this holding, the court balanced the interests that justified the owner's claim to exclusion against the advocates' interests in doing their jobs and the migrants' interests in humane treatment.(fn13) The ad hoc bundle conception frames the legal issue so that the farmer's claim to exclude the advocates has no necessary relation to his rights to exclude competitors, squatters, or thieves. That conceptual framing subtly shifts the burden to the farmer. The advocates need not explain why they deserve to enter the farmer's land; he needs to explain why he deserves to exclude them.
A similar tendency occurs in economic writings on property, as one can see from...
