Property and the Right to Exclude II

Thomas W. Merrill

In 1998, I published a short essay entitled Property and the Right to Exclude.1 It appeared in an issue of the Nebraska Law Review honoring Lawrence Berger, a long-time property professor at Nebraska. The essay has been rather widely cited, but I have my doubts as to whether it has been widely read. A review of citations in Westlaw suggests that the essay is commonly identified as arguing that the right to exclude is the "sine qua non" of property, a statement that appears in the opening paragraph.2 The typical citing author takes this to mean that the essay argues the right to exclude is the only relevant attribute of property, or that the right to exclude is the social goal to which the institution of property is dedicated—two propositions disavowed in the essay.

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3 BRIGHAM-KANNER PROPERTY RIGHTS CONF. J. 1 (2014)