A Bundle Theorist Holds On to His Collection of Sticks
Stephen R. Munzer
Econ Journal Watch, 2011, vol. 8, issue 3, pages 265-273
For nearly a century, most persons who have studied or written about property have conceived of it as a bundle of rights or, colloquially, as a bundle of sticks. In the mid 1990s, several philosophically minded academic lawyers questioned whether property should be thought of as a bundle at all. The impact of their work is reflected in Merrill and Smith (2007), a highly regarded and intellectually challenging casebook used in many U.S. law schools. Merrill and Smith emphasize that property is centrally a right to exclude and is generally held _in rem_, that is, is good against all the world. They find bundle theories of property defective for various reasons. This essay argues to the contrary. There are solid grounds for holding on to at least some bundle theories, which facilitate the careful analysis of the complexity of property. Moreover, Merrill and Smith's criticisms are often misguided or ineffective. Lastly, their account gives an overly simple picture of property and views property law as a more unified subject than it actually is.
Keywords: Property; bundle of rights; exclusion; rights; legal realism (search for similar items in EconPapers)
JEL-codes: A1 K00 K1 (search for similar items in EconPapers)
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Persistent link: http://EconPapers.repec.org/RePEc:ejw:journl:v:8:y:2011:i:3:p:265-273
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