Property beyond Exclusion

By Fennell, Lee Anne | William and Mary Law Review, November 2019 | Go to article overview

Property beyond Exclusion


Fennell, Lee Anne, William and Mary Law Review


TABLE OF CONTENTS  INTRODUCTION                                    524   I. UNDERSTANDING EXCLUSION                    527      A. How Boundary Exclusion Works            528      B. The Uses of Exclusion                   531         1. Clearing a Space                     532         2. Sowing and Reaping                   532         3. Containing Negative Impacts          533         4. Metering and Monetizing              534         5. Territoriality and Coordination      536         6. Expression and Autonomy              539  II. IMPACTS AND INTERACTIONS                   540      A. A Weakening Proxy                       541      B. More Costly Monopolies                  544 III. FROM LUMPS TO SLICES                       550      A. Ownership and Overbreadth               551      B. Pinpointing Gains, Recognizing Costs    555         1. Efficiently Underused?               556         2. Familiarity and Variety              558         3. Responsibility and Residual Claims   561  IV. POST-EXCLUSION PROPERTY?                   564      A. What Now?                               565         1. Land Use Beyond Exclusion            565         2. Unbundling and Rebundling            568      B. Objections                              570 CONCLUSION                                      572 

INTRODUCTION

Property rights have long been associated with a distinctive technology: exclusion. (1) The idea is intuitive and the architecture is straightforward. (2) The owner can keep out others, which enables her to use her property as she likes, and enjoy or suffer whatever consequences follow. (3) Yet if we understand property as a human invention designed to optimize access to resources, then exclusion is not an inevitable defining feature of property, but just one possible mechanism for carrying out property's work. And, like any other technology, it can become outdated as conditions change. Recent decades have featured profound changes in technologies for managing resources. (4) Increasing urbanization has also dramatically altered how property generates value and imposes costs. These changes have made exclusion a less useful, less necessary, and more expensive way of regulating access to resources and the streams of benefits they produce.

This Article examines the prospects for a post-exclusion understanding of real and personal property. (5) I proceed from the premise that property is built upon complementarities, (6) the nature and scale of which have undergone seismic shifts. Physical boundaries and lengthy claims on resources are designed to group together, in time and space, elements that work together in producing value. (7) Doing so allows owners to internalize the effects of that consolidated value-production system. (8) But many of the most important complementarities are found not within a given owner's holdings, but among the holdings of different owners. (9) Moreover, as time-slices of on-demand access increasingly replace enduring lumps of possession, (10) the presumed strong complementarity between possession today and possession tomorrow begins to break down. As a result of these trends, property lines have become an increasingly poor technology for grouping together complements.

My analysis proceeds in four parts. Part I considers how boundary exclusion works. I frame exclusion as a prophylactic mechanism designed to simultaneously enable and disable human endeavors by controlling entry into a boundary-defined space. Exclusion enables projects and investments by protecting resources in temporally continuous and spatially contiguous chunks. Exclusion also disables uninvited others from using the property, or any portion thereof, for their own projects. This arrangement works well when the resources located within the property's lines are more tightly connected to each other than they are to resources lying outside those lines. Increasingly, however, a boundary exclusion strategy turns out to be both underinclusive and overinclusive in grouping together complements. …

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