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77 Neb. L. Rev. 730 (1998)
Property and the Right to Exclude

handle is hein.journals/nebklr77 and id is 740 raw text is: Thomas W. Merrill* Property and the Right to Exclude TABLE OF CONTENTS I. Introduction .......................................... 730 II. The Right to Exclude and the Concept of Property ..... 731 A. Points of Consensus ............................... 731 B. Three Schools of Thought Regarding the Right to Exclude ........................................... 734 III. The Primacy of the Right to Exclude .................. 740 A. The Logical Primacy of the Right to Exclude ....... 740 B. The Historical Primacy of the Right to Exclude .... 745 C. The Ubiquity of the Right to Exclude .............. 747 IV. Some Qualifications and Implications .................. 753 V. Conclusion ............................................ 754 I. INTRODUCTION The Supreme Court is fond of saying that the right to exclude others is one of the most essential sticks in the bundle of rights that are commonly characterized as property.' I shall argue in this Essay that the right to exclude others is more than just one of the most essential constituents of property-it is the sine qua non. Give some- one the right to exclude others from a valued resource, i.e., a resource that is scarce relative to the human demand for it, and you give them property. Deny someone the exclusion right and they do not have property. Of course, those who are given the right to exclude others from a valued resource typically also are given other rights with respect to the resource-such as the rights to consume it, to transfigure it, to transfer it, to bequeath or devise it, to pledge it as collateral, to subdi- vide it into smaller interests, and so forth. These other rights are ob- viously valuable and important, and it is not improper to speak of © Copyright held by the NEBRASKA LAW REVIEW. * John Paul Stevens Professor of Law, Northwestern University. The author would like to thank Jim Speta, Henry Smith, and David Van Zandt for helpful discussions and comments. 1. Kaiser Aetna v. United States, 444 U.S. 164, 176 (1979). These words have been quoted in numerous subsequent decisions. See, e.g., Dolan v. City of Tigard, 512 U.S. 374, 384 (1994); Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1044 (1992); Nollan v. California Coastal Comm'n, 483 U.S. 825, 831 (1987).

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