Law Commons^™

Classical Liberal Property And The Question Of Institutional Choice, Thomas W. Merrill

Faculty Scholarship

Richard Epstein’s property scholarship tracks his classical liberal theory of government. The classical liberal would permit state intervention to overcome collective-action problems but not to engage in redistribution of wealth. With respect to private law, Epstein harbors no clear preference for either the legislature or the courts as a source of limits on owners’ autonomy to overcome collective-action problems. With regard to public law, in contrast, Epstein would elevate the courts to a superior status relative to legislatures and would have courts enforce the classical liberal ideal as a matter of constitutional law. This article questions whether giving such power …

The Demsetz Thesis And The Evolution Of Property Rights, Thomas W. Merrill

Faculty Scholarship

Both conventional price theory and standard economic accounts of tort and contract law assume fixed property rights. In fact, however, property regimes are not static but change over time. Given the assumption of fixed property that otherwise prevails in economic literature, explaining the evolution of property rights is one of the great challenges for the economic analysis of law.

The point of departure for virtually all efforts to explain changes in property rights is Harold Demsetz’s path‐breaking article, “Toward a Theory of Property Rights.” The article is still widely cited and reproduced, especially in first‐year property courses in law schools. …

Trespass, Nuisance, And The Costs Of Determining Property Rights, Thomas W. Merrill

Faculty Scholarship

The right to exclude intrusions by others, we have it on high authority, is "one of the most essential sticks in the bundle of rights that are commonly characterized as property." Yet the right to exclude is not one right; it is itself a collection or "bundle" of rights. With respect to property in land, for example, the right to exclude depends to a large extent on whether the intrusion in question is subject to the common law of trespass or of nuisance. Generally speaking, when the intrusion is governed by trespass, then there is no exception for de minimis …