Law Commons^™

Property And The Right To Exclude, Thomas W. Merrill

Faculty Scholarship

The Supreme Court is fond of saying that "the right to exclude others" is "one of the most essential sticks in the bundle of rights that are commonly characterized as property." I shall argue in this Essay that the right to exclude others is more than just "one of the most essential" constituents of property – it is the sine qua non. Give someone the right to exclude others from a valued resource, i.e., a resource that is scarce relative to the human demand for it, and you give them property. Deny someone the exclusion right and they do not …