Volume 3: The Essence of Property

October 17–18, 2013

Board of Advisors and Journal Staff
Table of Contents

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. (read more)

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


Property's Structural Pluralism: On Autonomy, the Rule of Law, and the Role of Blackstonian Ownership

Hanoch Dagan

It is a real privilege for me to participate in the celebration of Thomas Merrill's enormous contribution to the scholarship and jurisprudence on property, which has enhanced our understanding of property, which has enhanced our understanding of property in numerous ways. His work has elucidated the rationale of seemingly puzzling doctrines,1 illuminated the significance of hitherto marginalized ones,2 and introduced a new theoretical perspective—the focus on information—that by now dominates much of property theory.3 (read more)

3 BRIGHAM-KANNER PROPERTY RIGHTS CONF. J. 27 (2014)


The Affirmative Duties of Property Owners: An Essay for Tom Merrill

Robert C. Ellickson

As a result of his ownership of property, Rip Van Winkle might have incurred a variety of criminal and civil liabilities during the course of this twenty-year sleep. Possibilities are a conviction for neglecting care of his livestock, civil liability to a neighbor for having failed to contribute to the costs of a fence along a common boundary, and forfeiture of his lands for having failed to pay local property taxes. (read more)

3 BRIGHAM-KANNER PROPERTY RIGHTS CONF. J. 43 (2014)


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 (read more)

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


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. (read more)

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


Governmental Forbearance: Myth or Reality? 

James W. Ely, Jr.

In their thoughtful book, Property, Thomas W. Merrill and Henry W. Smith posit that various factors induce governments to forbear from unduly undermining the expectations of property owners and, as a result, operate to safeguard the security of property rights.1 This Essay seeks to explore this hypothesis, and questions whether one can realistically expect governmental forbearance to provide meaningful support for the rights of individual property owners. (read more)

3 BRIGHAM-KANNER PROPERTY RIGHTS CONF. J. 125 (2014)


Individual Reliance and Government Forbearance: A Tale of Five Cases

Laura S. Underkuffler

The topic for this panel of the conference is government forbearance: when government must—or should—refrain from changing previously existing individual entitlements. There are many resons why one might argue that government should forbear. (read more)

3 BRIGHAM-KANNER PROPERTY RIGHTS CONF. J. 141 (2014)


The 2013 Takings Triplets: From Exactions to Flooding to Raisin Seizures—Implications for Litigators

James S. Burling

The 2013 takings triplets of Koontz, Horne, and Arkansas Game and Fish Commission from the United States Supreme Court augur well for the future of property rights.1 While there was nothing particularly revolutionary in any of the three decisions, a loss in any of these cases could have spelled some serious backsliding for the progress made in the past quarter-century by property rights advocates. (read more)

3 BRIGHAM-KANNER PROPERTY RIGHTS CONF. J. 163 (2014)

Nationalization and Necessity: Takings and a Doctrine of Economic Emergency

Nestor M. Davidson

Serious economic crises have recurred with regularity throughout our history. So too have government takeovers of failing private companies in respons, and the downturn of the last decade was no exception. (read more)

3 BRIGHAM-KANNER PROPERTY RIGHTS CONF. J. 187 (2014)


Judicial Takings: Musings on Stop the Beach

James E. Krier

Judicial takings weren't much talked about until a few years ago, when the Stop the Beach case made them suddenly salient.1 The case arose from a Florida statute, enacted in 1961, that authorizes public restoration of eroded beaches by adding sand to widen them seaward. (read more)

3 BRIGHAM-KANNER PROPERTY RIGHTS CONF. J. 217 (2014)