Working Paper No. 12-16:
Exclusion and Private Law Theory: A Comment on Property as the Law of Things
Date Posted: February 2012
Abstract (below) | Full text (most recent) on SSRN
This Comment responds to an article by Professor Henry Smith, “Property as the Law of Things,” forthcoming in a symposium sponsored by the Harvard Law Review on “The New Private Law Theory.” In his lead Article, Professor Smith critiques what he calls the “bundle” picture of property, which he attributes to Legal Realists. This Comment argues that “Property as the Law of Things” does not go far enough in breaking with Legal Realist theory, because it assumes a social-scientific view of legal theory and an instrumentalist command theory of law.
This Comment draws on private-law and jurisprudential analytical scholarship arguing that the study of law requires attention to law’s internal point of view. From the internal point of view, a comprehensive account of property must acknowledge that property laws are meant to secure and reconcile interests in using external assets – interests of owners and non-owners both. “Property as the Law of Things” is incomplete because its argument abstracts from citizens’ normative interests in using things. Even if the Article’s information-cost efficiency argument is right, that argument does not supply a satisfactory explanation how the law comes to approximate what efficiency prescribes. In addition, the Article portrays important property doctrines -- riparian rights, de minimis building encroachments, and the relation between the “property” and “tort” components of nuisance – unpersuasively, because it abstracts from the connection between property rights and use.