Working Paper No. 10-58:
Exclusion and Exclusivity in Gridlock
Date Posted: November 2010
Abstract (below) | Full text (most recent) on SSRN
This Essay (which was prepared for a symposium held at George Mason University School of Law) reviews Michael Heller’s book The Gridlock Economy, focusing especially on its conceptual priors. The book assumes as true the conception that follows from Calabresi and Melamed’s Cathedral framework, whereby property consists of a right to exclude others, and invasions of the right to exclude may be remedied by a property rule. This definition departs significantly from the conception of property that informs social practice and private law, whereby property consists of a normative interest in determining exclusively the use of an external asset.
These differences lead The Gridlock Economy to make several conceptual and normative errors. In some cases (Moscow storefronts and Rhenish tolls), the book criticizes legal institutions for having too much property when in fact the problematic institutions are not property at all. In other cases (cotenancy partition and airplane overflights), the book criticizes legal institutions for having too much property when in fact existing law builds in discretion to limit property’s exclusivity to encourage the free and concurrent use of the propertized asset. And in some cases (redevelopment and private eminent domain), the book favors ad hoc government administration of a property dispute without being sensitive enough to the roles that socialization and respect for owner free action ordinarily play in property law.