Monday, December 3, 2007

Glazer on Outlaws and the Right to Exclude

Elizabeth Glazer (Hofstra) has posted Rule of (Out)Law: Property's Contingent Right to Exclude on SSRN.  Here's the abstract:Meat_loaf

Anything for love;
I would do anything for love;
I would do anything for love;
But I wont do that;
I wont do that.

When Meat Loaf mystified scores of listeners in the early nineties by his logically inconsistent song lyrics, he almost certainly did not look to property law when answering his fans most popular question. This Essay does not argue that he should have. However, Meat Loaf's (in)famous song lyrics may be able to shed light on what has become a popular question among property fans, namely what is the nature of the right to exclude.
This Essay argues that an owner's invocation of the right to exclude depends upon the owner's invocation of other rights in the property bundle. In so arguing, the Essay analyzes current efforts to understand the right to exclude through the lens of the property outlaw, whom Eduardo Moisés Peñalver & Sonia K. Katyal profile in their recent article, Property Outlaws. The Essay highlights the effects of Professors Peñalver's and Katyal's argument on the nature of property's right to exclude. After summarizing recent efforts to understand the right to exclude, describing Peñalver's and Katyal's argument that outlaw behavior has a special and socially productive function in property law, and explaining the connection between their article and the right to exclude, the Essay concludes by proffering evidence that Meat Loaf may have audited a first year property course, or at least that he incorporated insights about property law into his music.

Gotta respect the Loaf.  Photo from Wikipedia.

Ben Barros

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