Anna di Robilant, ‘Property: A Bundle of Sticks or a Tree?’

Abstract:
In the United States, property debates revolve around two conceptual models of property: the ownership model, originally developed in Europe and now revisited by information theorists and classical-liberal theorists of property, and the bundle of rights model, developed in the United States by Hohfeld and the realists. This Article retrieves an alternative concept of property, the tree concept. The tree concept was developed by European property scholars between 1900 and the 1950s as part of Europe’s own realist moment. It envisions property as a tree: the trunk representing the owner’s right to govern the use of a resource, and the branches representing the many resource-specific property regimes present in modern legal systems (family property, agricultural property, affordable housing property, intellectual property, etc.). This Article argues that the tree concept of property provides a descriptively more accurate and normatively richer account of property than the two currently dominant models.

Anna di Robilant, ‘Property: A Bundle of Sticks or a Tree?‘. 66 Vanderbilt Law Review 869 (2013).

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1 Comment to "Anna di Robilant, ‘Property: A Bundle of Sticks or a Tree?’"

  1. 2 May 2013 - 1:58 pm | Permalink

    Anna di Robilant is certainly correct when she writes: “In 1973 John Henry Merryman noted that property law is a largely unexplored field of comparative study.” But things have been changing, in Europe, but also elsewhere. As the result of European integration, more and more comparative and property lawyers are now analysing property law on a comparative basis. Research groups in Maastricht (the Netherlands) and Leuven (Belgium) focus their research on the type of basic questions which Anna di Robilant is attempting to answer. Also in South Africa, comparative property law is a rapidly developing area, as can be seen when looking af the activities of the South African National Research Chair in Property Law at Stellenbosch University.
    I would like to plead for more exchange and discourse also globally. We should broaden our views outside traditional academic barriers and boundaries. Such a global comparative property analysis would be extrremely useful and fruitful.

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