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3 Brigham-Kanner Prop. Rts. Conf. J. 1 (2014)
Property and the Right to Exclude II

handle is hein.journals/brikanproco3 and id is 6 raw text is: PROPERTY AND THE RIGHT TO EXCLUDE II THOMAS W. MERRILL* In 1998 I published a short essay entitled Property and the Right to Exclude.' It appeared in an issue of the Nebraska Law Review hon- oring Lawrence Berger, a long-time property professor at Nebraska. The essay has been rather widely cited, but I have my doubts as to whether it has been widely read. A review of citations in Westlaw suggests that the essay is commonly identified as arguing that the right to exclude is the sine qua non of property, a statement that appears in the opening paragraph.2 The typical citing author takes this to mean that the essay argues the right to exclude is the only relevant attribute of property, or that the right to exclude is the social goal to which the institution of property is dedicated-two proposi- tions disavowed in the essay. The author then uses this caricatured view of the exclusion thesis as a foil against which to develop his or her more nuanced or ethically satisfying view of property. I stand by most of what I said in the Nebraska essay, including the statement in the opening paragraph. Sine qua non is a Latin legal term meaning without which it could not be. In other words, with- out the right to exclude, there can be no property. None of the at- tacks on the right to exclude using the Nebraska essay as a foil has convinced me that this is wrong. Does the right to exclude capture every relevant attribute of the institution of property? No, but I did not argue that. I said only that it was a foundational attribute of property. Is the right to exclude the end or the ultimate value to which the institution of property aspires, a vision caricatured in one article as a society of hermits?3 Obviously not. Giving individuals * Charles Evans Hughes Professor, Columbia Law School. A condensed version of this Article was presented at the 2013 Brigham-Kanner Property Rights Conference at William and Mary Law School. I thank the Conference organizers for the honor of naming me the Brigham-Kanner Property Rights Prize recipient for 2013, and the panelists and conference attendees for their many insightful responses and comments. 1. Thomas W. Merrill, Property and the Right to Exclude, 77 NEB. L. REV. 730 (1998) [hereinafter Nebraska Essay]. 2. Id. at 730. 3. Lior Jacob Strahilevitz, Information Asymmetries and the Rights to Exclude, 104 MICH. L. REV. 1835, 1841 (2006) (claiming [t]he traditional account of the property right to exclude emphasizes a solitary, isolated individual who excludes everyone from his land, and labeling this The Hermit's Right). 1

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