The Thing About Exclusion

Henry E. Smith

The right to exclude is a sine qua non of debates over property. No one has been more persistent than Tom Merrill in promoting the idea that the right to exclude is "the sine qua non" of property itself.1 As reflected by the contributions to this conference in honor of the many achievements of his in the area of property, few positions provoke such strong and varied reactions as the placement of the right to exclude at the center of property.

As someone who is often considered to be an "exclusion theorist"—whatever that means—I will take this occasion to offer an account of what the right to exclude does—and does not—offer to property theories, especially those, like Merrill's, that aim for description and explanation.

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3 BRIGHAM-KANNER PROPERTY RIGHTS CONF. J. 95 (2014)