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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