Property Is Not Just a Bundle of Rights
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This essay contrasts the bundle-of-rights picture of property unfavorably with an architectural or modular approach. The bundle is a legacy of Legal Realism and wrongly obscures the costs of delineating property. The bundle treats property as too unstructured, its constituent rights as too separable, and its features as too divisible. By contrast, the architectural approach emphasizes the distinction between our interests in using things and the legal interests property law defines to protect them. Delineation strategies in our world of positive transaction costs start with shortcut exclusion strategies and, for some important use conflicts, shifts over to governance strategies in which rules and doctrines are more transparent to purposes. The architectural approach captures how rights to exclude, residual claims, and running to successors follow automatically from the basic setup—without being absolute. The essay ends with a discussion of why the bundle of rights has been speciously attractive and indicates the wider stakes for the role of baselines in private law.
Podcast related to this article: Henry E. Smith on Property (EJW Audio, September 2011).