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32 Vt. L. Rev. 247 (2007-2008)
Reflections on the Bundle of Rights

handle is hein.journals/vlr32 and id is 255 raw text is: REFLECTIONS ON THE BUNDLE OF RIGHTS Denise R. Johnsont The modem legal understanding of property ownership in the United States is expressed through a metaphor as a bundle of rights or a bundle of sticks. This is an abstract notion that analytically describes property as a collection of rights vis-A-vis others, rather than rights to a thing, like a house or a piece of land. It is a legal construct that has evolved to describe the rights as well as the responsibilities that attend ownership quite independently of whatever thing is owned. The bundle of rights also demonstrates the many ways in which ownership can be divided. In this sense, the concept works to illustrate both tangible and intangible property equally well-for example, 100 acres of land or 100 shares in a corporation. In recent years, an academic debate has raged about whether the bundle of rights is a correct or useful way of thinking about property rights. Whatever its faults or inadequacies, the bundle of rights is the dominant legal paradigm for the courts and the theory of property that is taught to American law students. Although the bundle of rights concept grew out of a long-standing and serious philosophical debate about legal rights and legal liberties, the bundle of rights as a theory of property did not present a new normative idea, but an analytical and descriptive one. Whatever social value choices were made as the various property rules evolved-rules that preserved the institution of private property-were made long before the bundle of rights came along to reconceptualize how we think about rights in property. This lecture discusses the history and meaning of the bundle of rights as a concept of property law, as well as two recent landmark decisions of the United States Supreme Court that have interpreted the government's constitutional authority to intrude upon the bundle of rights, Lucas v. South Carolina Coastal Commission and Kelo v. City of New London. The intersection of governmental authority and private owners' rights is one of the more interesting contexts in which to think about the viability of the bundle of rights. It is also the context in which American expectations about liberty and land ownership have been most seriously challenged. * Associate Justice of the Vermont Supreme Court; LLM 1995, University of Virginia School of Law; J.D. 1974, University of Connecticut School of Law; A.B. 1969, Wayne State University. t This piece was originally delivered as a lecture to undergraduate law students and faculty at the FacoltA di Giurisprudenza, UniversitA degli Studi di Udine, Udine, Italy in March, 2007, where I was invited to speak about the concept in property law known as the bundle of rights. I am grateful to Dean Mariarita D'Addezio for the invitation to speak. I also appreciate the work of the Vermont Law Review editors for their assistance in preparing the lecture for publication. A supporting bibliography is provided at the end of the lecture.

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