Friday, December 16, 2011
Stephen R. Munzer (UCLA) has posted A Bundle Theorist Holds On to His Collection of Sticks, Econ Journal Watch, Vol. 8, No. 3, pp. 265-73, September 2011. The abstract:
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.
I haven't developed my own position on whether the bundle theory is the most accurate philosophical account of property, but I use the heck out of it in teaching. I've found that having the class think of property as a bundle of rights that can be arranged in different ways, and then extrapolating that concept over topics such as estates, future interests, co-ownership, and servitudes really helps students wrap their heads around these otherwise esoteric subjects, and provides a good framework for understanding property. I'm glad to see this short philosophical essay by Munzer to assure me that at least I'm not horribly behind the times in teaching about sticks.