James Stern, ‘What is the Right to Exclude and Why Does It Matter?’

Abstract
The ‘right to exclude’ is commonly said to be a central element of the formal structure of property, and some relatively sweeping claims have been made about its role and effect. This chapter seeks to provide a clearer understanding of the right to exclude and its relationship to property. First, it sets out a precise account of what the term means. A right to exclude is any right to forbid a use or set of uses of a particular resource by one or more people; more formally, it is any negative claim-right concerning the use of a discrete ‘thing’. The chapter comments on these features, both in terms of their implications for how property systems operate and in terms of ways in which those features are misunderstood. Second, the chapter sketches and briefly evaluates certain normative assertions about the right to exclude. It concludes, inter alia, that stronger versions of these arguments, both supportive and critical, conflate rights to exclude with rights of broad scope. Finally, the chapter critically examines various arguments for the primacy of the right to exclude. In its essence, property is an authority structure, in which control or dominion over a particular subject is the animating idea, and rights to exclude have been unhelpfully cleaved from this parent concept, leading to significant confusion about what property is and how property works.

Stern, James Y, What is the Right to Exclude and Why Does It Matter? (October 6, 2017), in Property Theory: Legal and Political Perspectives (MH Otsuka and JE Penner, eds), Cambridge University Press, forthcoming. William and Mary Law School Research Paper No 09-364.

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