Monday, April 8, 2013
Jane Baron (Temple) has posted Rescuing the Bundle of Rights Metaphor in Property Law (Cincinnati Law Review) on SSRN. Here's the abstract:
much of the twentieth century, legal academics conceptualized property
as a bundle of rights. But property theory today is deeply divided
between theorists who focus on property’s ends, i.e., its reflection of
values such as democracy or human flourishing, and those who focus on
property’s means, i.e., its use of qualities such as modularity and
exclusion to manage complexity in a cost-effective way. The
bundle-of-rights conceptualization has been swept up into the
controversy, becoming the particular target of means-focused theorists,
who argue that the bundle conceptualization obscures critical features
of the property system, most notably its use of strategies of exclusion,
in rem rights, and indirectness. These theorists assert that,
twentieth century wisdom notwithstanding, property is not a bundle of
rights but rather is a law of things.
Contrary to these theorists, this Article argues that the bundle-of-rights conceptualization remains useful both descriptively and normatively. First, the bundle conceptualization produces more precise specification of the legal relations of parties in both simple and complex property arrangements. Second, it clarifies the normative choices that underlie decisions about property. Third, it focuses attention on the quality of the relationships that property constructs. Finally, bundle-of-rights analysis generally forces information forward. Because the information produced by the granular analysis of property bundles is useful, the bundle of rights metaphor should not be displaced or abandoned. Indeed, the complexity of contemporary property issues — and in particular their growing connection to the alternative legal fields of privacy and intellectual property — makes the bundle conceptualization all the more fruitful.