In 1998 I published a short essay entitled Property and the Right to Exclude. It appeared in an issue of the Nebraska Law Review honoring Lawrence Berger, a long-time property professor at Nebraska. The essay has been rather widely cited, but I have my doubts as to whether it has been widely read. A review of citations in Westlaw suggests that the essay is commonly identified as arguing that the right to exclude is the "sine qua non" of property, a statement that appears in the opening paragraph. The typical citing author takes this to mean that the essay argues the right to exclude is the only relevant attribute of property, or that the right to exclude is the social goal to which the institution of property is dedicated – two propositions disavowed in the essay. The author then uses this caricatured view of the exclusion thesis as a foil against which to develop his or her more nuanced or ethically satisfying view of property.
I stand by most of what I said in the Nebraska essay, including the statement in the opening paragraph. Sine qua non is a Latin legal term meaning "without which it could not be." In other words, without the right to exclude, there can be no property. None of the attacks on the right to exclude using the Nebraska essay as a foil has convinced me that this is wrong. Does the right to exclude capture every relevant attribute of the institution of property? No, but I did not argue that. I said only that it was a foundational attribute of property. Is the right to exclude the end or the ultimate value to which the institution of property aspires, a vision caricatured in one article as a society of hermits? Obviously not. Giving individuals the right to exclude others from particular resources is a way of organizing the management and control of resources in society. As such, it is a means to promoting a variety of ends, including, I will argue, a willingness to share resources. It also has a number of drawbacks, which means there will inevitably be exceptions and qualifications to the right to exclude. But I also said this explicitly in Nebraska essay.
The present Article revisits and expands upon the Nebraska essay. I will begin by restating the argument of the Nebraska essay, which I will call the exclusion thesis. After that, I will offer some clarifications, inspired by some of the critiques as well as my own reflections in the time that has passed since the Nebraska essay was published. Building on the clarified thesis, I will highlight some of the normative pros and cons of property that flow from the right to exclude. I will then offer something new: an explanation for how the right to exclude came to be the critical attribute differentiating property from other social institutions. The explanation is grounded in the concept of possession and the information cost advantages of using possession to differentiate between things that are mine and not mine as we navigate through everyday life. Possession is based on a perception of a capacity or intention to exclude others from a thing, and insofar as the institution of property is built on or evolves from a foundation of possession, I will argue that this accounts for why property always entails a right to exclude. I will wrap up by offering a few observations about what has emerged as the dominant critique of the exclusion thesis: that it promotes an excessively individualistic conception of property and downplays the communitarian or social obligation perspective on ownership.
Intellectual Property Law | Law | Property Law and Real Estate
Thomas W. Merrill,
Property and the Right to Exclude II,
Brigham-Kanner Prop. Rts. Conf. J.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/937