Lost Visibility and the Right to Exclude: How Merrill's Sine Qua Non of Property Compels Just Compensation in Takings Cases

Mark D. Savin & Stephen J. Clarke

In 1998, Thomas W. Merrill, one of the great modern property law scholars, published an article in the Nebraska Law Review that has since framed much of the scholarly discussion on the nature of property rights.1 Now, fifteen years after it was published, Merrill's essay, Property and the Right to Exclude, still compels those looking to understand the fundamental nature of property to address his famous assertion: "[T]he right to exclude others is more that just 'one of the most essential' constituents of property—it is the sine qua non."2

In this Article, we propose to connect Merrill's observation about the supremacy of the right to exclude among the "bundle of sticks" that is commonly though of as property to a specific aspect of property laws: the question of what should constitute a taking of property for purposes of compensation in eminent domain cases.

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3 BRIGHAM-KANNER PROPERTY RIGHTS CONF. J. 71 (2014)