Tuesday, May 6, 2008

Katz on Exclusion and Exclusivity

Larissa M. Katz (Queen's University) has posted Exclusion and Exclusivity in Property Law on SSRN.  Here's the abstract:

In this article, I propose a model for understanding the concept of ownership that I call the exclusivity model. Like many of the contemporary critics of the bundle of rights approach to Ownership, I insist that ownership is a legal concept with a well-defined structure. I differ from most of these contemporary critics, however, in the model of ownership that I believe to be at work in property law. Most of these critics propose a model of ownership that emphasizes the owner's right to exclude non-owners from the owned thing as the central defining feature of ownership. I call this the boundary approach to highlight its fixation on the owner's power to decide who may cross the boundaries of the owned thing. But this, I argue, makes it impossible for them to explain adequately the many subsidiary rights in things that co-exist with the rights of owners. Indeed, when we look more closely at the structure of ownership in property law, I argue that its central concern is not the exclusion of all non-owners from the owned thing, but rather the preservation of the owner's position as the exclusive agenda-setter for the owned thing. So long as others - whether they be subsidiary property right- holders or strangers to the property - act in a way that is consistent with the owner's agenda, they pose no threat to the owner's exclusive position as agenda-setter.

Ben Barros

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While reading this article, I couldn't help but think about the paradigm in my former world, that of physics. Man's struggle to divine and manipulate the laws of nature are broken down into 2 basic manifestations: theory and experiment. Theory attempts to explain the world in which we live by forming a set of fundamental quantities (equations) that describe and/or predict ubiquitous phenomena. Experiment attempts to apply those equations and predictions, to verify or refute. When theory and experiment don't match (and presuming the experimentalists are convinced that they performed the experiment correctly), the theorists are forced to come up with new equations, predictions, explanations, etc.

If someone comes up with a "new" set of equations that merely predicts the same experimental outcome as an existing body of theory, the usual response is "hey, great, but so what? We already know that." That's how I view this "agenda setting" vs. boundary business.

Now, I understand that in the social "sciences" things are little different on the theoretical side, but this paper really strikes me as just another "so what?"

And I realize that my general propensity is a cynical one, predisposed to rant on about academic long-winded pablum puking...But honestly, this author, has spent so much time describing what? In my opinion, she has gone to great lengths to simply end up equating "exclusion" with "agenda setting". Yeah, I know she points out all sorts of supposed differences, but in the end the practical effect on ownership is the same.

Whether it's because an owner has the paramount right to "set an agenda" or because he can rely on his own might in addition to the state's, to toss a trespasser off his property...the net effect is the same. IT'S HIS!! At best, the two paradigms should be viewed as symbiotic.

I also couldn't help but wonder whether the author would apply the same, painfully contrived rationale, to her own person with respect to others interested in it. I suspect not. When it comes down to that, if the author is to be honest with herself, the response would be one of pure exclusion, pure boundary, pure bundle of rights. None of this "agenda setting" malarky.

Posted by: Sam Gompers | May 7, 2008 7:08:18 AM

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