Date Posted: February 2009
This Review Essay reviews Property: Principles and Policies (2007), by Thomas W. Merrill and Henry E. Smith, focusing particularly on its conceptual claim that property consists primarily of a “right to exclude.” On one hand, Property: Principles and Policies is a novel and important casebook because exclusion illuminates the first-year property course better than the organizing themes of many other leading casebooks. On the other hand, the “right to exclude” suffers from limitations that deserve to be fleshed out more fully. Conceptually, property is better understood as a right of exclusive use determination. Economically, “exclusive use determination” explains, as a “right to exclude” does not, the use and disposition rights that encourage owners to maximize the values of the assets they exclusively own. The Essay illustrates using trespass, nuisance, property-rule/liability-rule doctrines, rent control, and the public-use limitation in eminent domain.