University of Cincinnati Law Review
Volume 82
Issue 1
Article 2
September 2014
Rescuing the Bundle-of-Rights Metaphor in Property Law
Jane B. Baron
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Baron: Rescuing the Bundle-of-Rights Metaphor in Property Law
RESCUING THE BUNDLE-OF-RIGHTS METAPHOR IN
PROPERTY LAW
Jane B. Baron∗
For much of the twentieth century, legal academics conceptualized
property as a bundle of rights. But property theory today is deeply
divided between theorists who focus on property’s ends, i.e., its
reflection of values such as democracy or human flourishing, and those
who focus on property’s means, i.e., its use of qualities such as
modularity and exclusion to manage complexity in a cost-effective way.
The bundle-of-rights conceptualization has been swept up into the
controversy, becoming the particular target of means-focused theorists,
who argue that the bundle conceptualization obscures critical features
of the property system, most notably its use of strategies of exclusion, in
rem rights, and indirectness. These theorists assert that, twentieth
century wisdom notwithstanding, property is not a bundle of rights but
rather is a law of things.
Contrary to these theorists, this Article argues that the bundle-of-rights
conceptualization remains useful both descriptively and normatively.
First, the bundle-of-rights conceptualization produces more precise
specification of the legal relations of parties in both simple and complex
property arrangements. Second, it clarifies the normative choices that
underlie decisions about property. Third, it focuses attention on the
quality of the relationships that property constructs. Finally, bundle-ofrights analysis generally forces information forward. Because the
information produced by the granular analysis of property bundles is
useful, the bundle-of-rights metaphor should not be displaced or
abandoned. Indeed, the complexity of contemporary property issues—
and in particular their growing connection to the alternative legal fields
of privacy and intellectual property—makes the bundle-of-rights
conceptualization all the more fruitful.
I. Introduction......................................................................................... 58
II. A History and Three Stories .............................................................. 61
A. An Intellectual History of the Bundle-of-Rights Metaphor .... 62
B. A Story of Ad Hocery ............................................................. 67
C. A Story of Elitism ................................................................... 72
∗ I. Herman Stern Professor of Law, Temple University Beasley School of Law.
Jane.baron@temple.edu. I thank Gregory Alexander, Nestor Davidson, Craig Green, Richard
Greenstein, Dave Hoffman, Gregory Mandel, Andrea Monroe, Eduardo Peñalver, and Joseph Singer for
helpful comments on various drafts of this paper. All errors are mine.
57
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D. A Story of Political Opportunism ........................................... 75
III. The Case for the Bundle-of-Rights Metaphor .................................. 79
A. Specification of Legal Relationships ...................................... 79
B. Flexibility and Choice ............................................................. 82
C. Property Rights as Relations Among Persons......................... 85
D. Forcing Information ................................................................ 89
IV. The Bundle-of-Rights in Context..................................................... 94
A. Electronic Health Records (EHRs) ......................................... 94
B. Commercial Databases............................................................ 97
V. Conclusion....................................................................................... 100
I. INTRODUCTION
For much of the twentieth century, legal academics conceptualized
property as a bundle of rights.1 The bundle-of-rights metaphor captures
well the way in which ownership interests can be divided over time, as
in the case of present and future interests, and among different people,
as in the case of concurrent interests (e.g., joint tenancies) and common
interest communities (e.g., condominiums). The bundle-of-rights view
also counterbalances an older absolutist picture derived from
Blackstone’s description of property as “despotic dominion” exercised
by “one man” over “external things.”2 The Blackstonian view posits
nearly limitless rights consolidated in a single owner, who can exclude
all others. In contrast, the bundle-of-rights metaphor emphasizes that
property is not “sole dominion,” but involves, in many cases, only
relatively better rights. The bundle metaphor also highlights that
property involves not just “one man” and his “external things,” but
multiple parties tied together in relationships that are social as well as
legal.3 Seen as a bundle of rights, property is not monolithic but is
composed of pieces (sometimes called “sticks”) that are combined
1. See, e.g., GREGORY S. ALEXANDER, COMMODITY & PROPRIETY 319 (1997) (“No expression
better captures the modern legal understanding of ownership than the metaphor of property as a ‘bundle
of rights.’”); J. E. Penner, The “Bundle of Rights” Picture of Property, 43 UCLA L. REV. 711, 712
(1966) (“The currently prevailing understanding of property in what might be called mainstream AngloAmerican legal philosophy is that property is best understood as a ‘bundle of rights.’”).
2. The full quote describes property as “that sole and despotic dominion which one man claims
and exercises over the external things of the world, in total exclusion of the right of any other individual
in the universe.” 2 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND *2. Scholars
have questioned whether Blackstone himself held the absolutist views attributed to him. Carol M. Rose,
Canons of Property Talk, or, Blackstone’s Anxiety, 108 YALE L.J. 601 (1998); David B. Schorr, How
Blackstone Became a Blackstonian, 10 THEORETICAL INQUIRIES L. 103 (2009).
3. See, e.g., ALEXANDER, supra note 1, at 319 (“the metaphor of property as a ‘bundle of
rights’ . . . was intended to signify three insights. First, it indicates that ownership is a complex legal
relationship. Second, the metaphor illuminates the fact that the constitutive elements of that relationship
are legal rights. Third, and most important, it underscores the social character of that relationship.”).
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together but can be disentangled. Property is not about the connection
between people and things, but about the connections between and
among people.
Today, however, property theory is deeply divided, and the bundleof-rights conceptualization has been swept up into the controversy.4
One influential strand of contemporary theory focuses on the mechanics
of how property operates, its use of qualities such as “modularity,”5 or
“boundaries,”6 or “residual managerial authority”7 to solve problems of
social organization and information economy. These means-focused
theories square off against theories that focus more on the outcomes or
ends the property system produces, asking whether these outcomes
reflect values such as democracy,8 freedom,9 or human flourishing.10
While ends theorists have sometimes questioned the bundle-of-rights
metaphor,11 it has become a particular target for means theorists, who
argue that the bundle conceptualization obscures critical features of the
property system, such as its use of strategies of exclusion, in rem rights,
and indirectness.12 Means theorists have argued that the bundle-of-
4. Lee Ann Fennell, The Problem of Resource Access, 126 HARV. L. REV. 1471, 1477 (2013)
(“Property theory today is alive with debate on core questions of entitlement design: whether property
rules or liability rules should dominate, whether an exclusion—or thing—based vision of property
should trump the bundle of rights metaphor, whether fixed menus of tenure forms aid or impede
efficiency, and so on.”).
5. See, e.g., Henry E. Smith, Institutions and Indirectness in Intellectual Property, 157 U. PA.
L. REV. 2083 (2009) [hereinafter Smith, Institutions]; Henry E. Smith, On the Economy of Concepts in
Property, 160 U. PA. L. REV. 2097, 2098 (2012).
6. Henry E. Smith, Property as the Law of Things, 125 HARV. L. REV. 1691, 1703 (2012)
[hereinafter Smith, Things].
7. Thomas W. Merrill, The Property Strategy, 160 U. PA. L. REV. 2061 (2012). Merrill pairs
residual managerial authority with “residual accessionary rights.” Id. at 2067.
8. Joseph William Singer, Democratic Estates: Property Law in a Free and Democratic
Society, 94 CORNELL L. REV. 1009 (2009).
9. Jedediah Purdy, A Freedom-Promoting Approach to Property: A Renewed Tradition for New
Debates, 72 U. CHI. L. REV. 1237 (2005).
10. Gregory S. Alexander, The Social-Obligation Norm in American Property Law, 94 CORNELL
L. REV. 745 (2009).
11. See, e.g., JOSEPH WILLIAM SINGER, ENTITLEMENT: THE PARADOXES OF PROPERTY 207
(2000) (arguing that the bundle-of-rights approach does not displace the “ownership model” in which
owners are understood to have nearly unlimited powers and state regulation is seen as antithetical to
freedom); Alexander, supra note 10, at 801 (suggesting that, at least in the context of takings, the
metaphor ought to be abandoned).
12. These features are explored infra text accompanying notes 61–66, 76–81, 131–139, 213–219.
Not all scholars who oppose the bundle of rights conceptualization of property do so entirely or even
primarily on means grounds. For example, one of the most influential critics of the bundle-of-rights
picture, J.E. Penner, presents “conceptual” objections to the bundle metaphor. See Penner, supra note 1,
at 767–99. Other critics of the bundle of rights model argue that bundle analysis does not lead to results
all that different from alternative conceptions. See, e.g., Jeanne L. Schroeder, Chix Nix Bundle-O-Stix: A
Feminist Critique of the Disaggregation of Property, 93 MICH. L. REV. 239, 243 (1994); Adam
Mossoff, The False Promise of the Right to Exclude, 8(3) ECON JOURNAL WATCH 255, 256 (2011).
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rights conception metaphor fails to be a theory of property,13 fails to
answer difficult property questions,14 and fails to apprehend that
“property is a holistic system made up of interactive components, not a
system in which anything can in principle relate to anything else.”15
They assert that, twentieth century wisdom notwithstanding, property “is
not a bundle of rights”16 but rather a “law of things.”17
Contrary to the means theorists’ critique, this Article argues that the
bundle-of-rights conceptualization remains useful both descriptively and
normatively. Bundle-of-rights analysis helps to specify the legal
relations of parties in both simple and complex property arrangements,
to identify explicitly the normative choices implicit in those
arrangements, to assess the quality of the human relationships that
property entails, and to force the production of information pertinent to
those issues. Because the information produced by the granular analysis
of property bundles is useful, the bundle-of-rights metaphor should not
be displaced or abandoned. Indeed, the complexity of contemporary
property issues—in particular, their growing connection to the
alternative legal fields of “privacy” and “intellectual property”—makes
the bundle conceptualization all the more fruitful.
As Part II explains, critiques of the bundle-of-rights conceptualization
begin with an intellectual history of how the metaphor came to
dominance. From this historical narrative, means-focused property
theorists have distilled three stories of dystopian dysfunction. The first
is a tale of ad hocery, in which the bundles are assembled and
disassembled without regard to social costs or potential anticommons
But while not all antibundle scholars focus as intently on means as Henry Smith, who is
probably the most passionate contemporary detractor of the bundle metaphor, many of these other
scholars share to some significant degree Smith’s commitments to the primacy of exclusion, things, and
in rem rights in property. Many also share Smith’s view that property is not primarily about ends. See,
e.g., Larissa Katz, The Regulative Function of Property Rights, 8(3) ECON JOURNAL WATCH 236, 240–
41 (2011) (distinguishing between, on the one hand, “bundle-of-rights approaches,” which focus on “the
substantive outcomes that owners should produce,” and, on the other hand, a view of private property
“as a strategy for managing resources” that provides “an alternative to collective deliberation about how
a thing ought to be used”).
Those whom I characterize as ends theorists are not entirely indifferent to means questions,
and as I explain, infra notes 59–69 and accompanying text, those whom I characterize as means theorists
are not entirely indifferent to ends. Thus, the distinction between ends and means theorists should not
be overdrawn. I use “ends theorists” and “means theorists” as terminological shorthands, not to flatten
divergences among theorists’ views, nor to perpetuate a caricatured distinction.
13. Smith, Things, supra note 6, at 1700.
14. Thomas W. Merrill, The Property Prism, 8(3) ECON JOURNAL WATCH 247 (2011)
[hereinafter Merrill, Prism] (“the bundle metaphor . . . has been more successful in framing questions
that in answering them”).
15. Smith, Things, supra note 6, at 1700.
16. Yun-chien Chang & Henry E. Smith, An Economic Analysis of Civil Versus Common Law
Property, 88 NOTRE DAME L. REV. 1 (2012).
17. Smith, Things, supra note 6, at 1691.
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problems. The second is a story of elitism, in which academics
disdainfully mock lay understandings of property. The third is a story of
politicization, in which Legal Realists and their descendants seek to
highjack property for purposes of an overtly regulatory agenda. The
stories of ad hocery, elitism, and political extremism are caricatures that
could be constructed quite differently. Contrary to the stories’ claims,
we have nothing to fear from the bundle-of-rights conceptualization.
Part III makes the affirmative case for the bundle-of-rights view of
property. First, the bundle-of-rights conceptualization produces more
precise specification of the legal relations of parties, especially in the
case of intangible property. Second, it clarifies the normative choices
that underlie decisions about property. Third, it focuses attention on the
quality of the relationships property constructs. Finally, bundle-ofrights analysis generally forces information forward. While the bundleof-rights view cannot and will not determine what kind of property
system we should have, it can force us to be more transparent about the
choices we make in our decisions about property. If, as means-focused
theories suggest, property’s architecture produces normatively good
results in the ordinary run of cases, then the granular analysis produced
by the bundle-of-rights conceptualization will confirm that fact. If
property’s architecture is not producing such results, we are better off
knowing.
Part IV seeks to illustrate the bundle-of-rights metaphor’s potential
through brief case studies of two contemporary information-based
assets: electronic health records and commercial databases. The
property disputes of our future will involve just these sorts of assets,
which lie in a kind of netherworld between property, privacy, and
intellectual property. Property rights in these assets—if indeed we
decide to classify these assets as property at all—will look more like
bundled rights than the modular packages that are paradigmatic of the
law of things. And constructing the bundle will require hard choices
about who should be able to extract “value” from assets that require
contributions from multiple participants. The bundle-of-rights view of
property will force us to make these choices explicitly and transparently.
II. A HISTORY AND THREE STORIES
Subpart A of this section describes, in broad strokes, a compressed
intellectual history of the development of the bundle-of-rights metaphor
and of the metaphor’s influence over time. While different versions of
this account vary in their particulars, there is remarkable agreement on
the main points of this history across the spectrum of property
scholarship. The larger narrative of the rise of the bundle-of-rights
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conceptualization contains the seeds of three stories about the bundle
metaphor, stories that are particularly salient—and particularly
troubling—for means-focused property scholars. The first is that the
bundle-of-rights metaphor permits the sticks of property rights to be
combined ad hoc, in any old way, without regard to information costs or
anticommons problems. The second is that the bundle-of-rights
conceptualization is elitist and at odds with lay understandings of
property. The third is that the bundle view provides the groundwork for
increased state intervention in and regulation of property. Subparts B
through D describe these stories, in each case suggesting alternative
ways in which the stories might be told.
A. An Intellectual History of the Bundle-of-Rights Metaphor
Property scholars’ histories of the bundle-of-rights metaphor all begin
with Wesley Newcomb Hohfeld.18 Despite acknowledging that he did
not originate the metaphor19 or even use the term “bundle of rights,”20
property scholars assert that his unpacking of legal rights into
component jural correlatives and opposites provided both the
“intellectual justification”21 and the “analytic vocabulary”22 for the
bundle-of-rights conception.23 Hohfeld’s conceptual analysis of rights
in terms of jural relations led to the development of the notions that
property consists not of things, but of legal relationships. It similarly led
to the rise of the view that those relationships are not relationships
between persons and things, but instead relationships among persons.24
These notions present a non-Blackstonian picture in which property is
18. Wesley Newcomb Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial
Reasoning, 23 Yale L.J. 16 (1913) [hereinafter Fundamental Legal Conceptions I]; Wesley Newcomb
Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, 26 Yale L.J. 710
(1917) [hereinafter Fundamental Legal Conceptions II].
19. ALEXANDER, supra note 1, at 319–20 (Hohfeld did not introduce the bundle of rights concept
into American legal discourse).
20. Michael A. Heller, The Boundaries of Private Property, 108 YALE L.J. 1163, 1191 (1999)
(Hohfeld “never mentions a ‘bundle of rights’”).
21. Thomas W. Merrill and Henry E. Smith, What Happened to Property in Law and
Economics?, 111 YALE L.J. 357, 365 (2001).
22. STEPHEN R. MUNZER, A THEORY OF PROPERTY 18 (1990).
23. Adam Mossoff, The Use and Abuse of IP at the Birth of the Administrative State, 157 U. PA.
L. REV. 2001, 2007, 2010 (2009) (describing Hohfeld as the “progenitor” of the bundle metaphor);
Hanoch Dagan, The Craft of Property, 91 CALIF. L. REV. 1517, 1532 (2003) (describing Hohfeld as
“closely associated” with the bundle of rights concept).
24. Heller, supra note 20, at 1191–92; Kenneth J. Vandevelde, The New Property of the
Nineteenth Century: The Development of the Modern Conception of Property, 29 BUFF. L. REV. 325,
360 (1980); ALEXANDER, supra note 1, at 321; Craig Anthony (Tony) Arnold, The Reconstitution of
Property: Property as a Web of Interests, 26 HARV. ENVTL. L. REV. 281, 327 (2002).
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no longer centered on things25 and is no longer seen to involve absolute
dominion.26
The next step in the history of the rise of the bundle conceptualization
involves the Legal Realists. Some scholars assert that the Realists
“popularized” Hohfeld’s concept of the social conception of
ownership,27 others assert that they “embraced” the bundle of rights
metaphor,28 and still others assert that they “co-opted”29 or
“appropriated”30 Hohfeld’s conceptual work. Some theorists see the
Realists’ warm reception of Hohfeld as a response to late-nineteenth and
early-twentieth century changes in the kind of assets protected under the
“property” rubric, as “de-physicalized” forms of wealth, such as
business goodwill or intellectual property, challenged existing landbased property categories.31
Other scholars, in contrast, see the Realists’ embrace of Hohfeld as a
strategic political move, in which the Realists “sought to undermine the
notion that property is a natural right, and thereby smooth the way for
activist state intervention in regulating and redistributing property.”32
The bundle-of-rights picture of property enables such a state because “if
property has no fixed core of meaning, but is just a variable collection of
interests established by social convention, then there is no good reason
why the state should not freely expand or, better yet, contract the lists of
interests in the name of the general welfare.”33
This historical account largely elides jurisprudential disputes over
what truly counts as legal realism34 or who really counts as a Legal
Realist35—though most agree that Hohfeld was not one himself.36 The
account also largely elides exactly how the Realists managed to imbue
25. Penner, supra note 1, at 731 (Hohfeld’s refusal to see property as a right to a thing provides
the basis for the bundle of rights picture, following which “property is free to float free from any
anchorage to the concept of a ‘right to a thing.’”).
26. Vandevelde, supra note 24, at 360–61.
27. ALEXANDER, supra note 1, at 319.
28. Merrill, Prism, supra note 14, at 248.
29. Eric R. Claeys, Property 101: Is Property a Thing or a Bundle?, 32 SEATTLE U. L. REV. 617,
635 (2009).
30. Id. at 636.
31. MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW 1870–1960, at 145–65
(1992); Vandevelde, supra note 24, at 328–30; Arnold, supra note 24, at 288.
32. Merrill & Smith, supra note 21, at 365. See also Mossoff, supra note 23, at 2007 (the bundle
of rights reconceptualization of property was helpful to Progressives “because it made it possible for the
modern administrative state to control and restrict various property uses without implicating the
constitutional protections of the Takings or Due Process Clauses”).
33. Merrill & Smith, supra note 21, at 365.
34. On this point, see Brian Z. Tamanaha, Understanding Legal Realism, 87 TEX. L. REV. 731
(2009); Brian Leiter, Legal Realisms, Old and New, 47 VAL. U. L. REV. 949 (2013).
35. ALEXANDER, supra note 1, at 311–12; HORWITZ, supra note 31, at 169–70.
36. Claeys, supra note 29, at 635.
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Hohfeld’s insights with the force they came to have.37 Certain Realist
figures and articles do make repeated cameo appearances. Morris
Cohen’s Property and Sovereignty38 is high on the list because—
emphasizing the social nature of property rights—he claimed that “a
property right is a relation not between an owner and a thing, but
between the owner and other individuals in reference to things,”39 and
that, because owners’ privileges, powers, and immunities correlate with
nonowners’ duties, disabilities, and liabilities, “dominion over things is
also imperium over our fellow man.”40 Robert Hale’s writings—
emphasizing owners’ powers to free nonowners from the duties,
disabilities, and liabilities to which their nonownership subjects them by
offering them disagreeable wage labor—also get occasional mention.41
The definition of property in Restatement (First) of Property as “legal
relations between persons with respect to a thing”42 is sometimes offered
as conclusive evidence of the influence of the Realists’ interpretation of
Hohfeld.43
Three figures come next in property scholars’ intellectual history of
the development of the bundle of rights. The first is A.M. Honoré,
whose influential essay, Ownership, further disaggregated property into
eleven “incidents.”44 These incidents could then (and now) be
37. Merrill and Smith attribute the influence of the Realist conception to Coase, who popularized
a “hyper-realist conception of property” that encouraged economists to adopt the view that “property
consists of nothing more than the authoritative list of permitted uses of a resource—posted, as it were,
by the state for each object of scarcity.” Merrill & Smith, supra note 21, at 366. See also infra text
accompanying note 51 (further discussing Coase). Alexander traces the popularization of Hohfeld’s
ideas among Legal Realists to Arthur Corbin and Walter Wheeler Cook. See ALEXANDER, supra note 1,
at 319–21.
38. Morris R. Cohen, Property and Sovereignty, 13 CORNELL L.Q. 8 (1927). Cohen is also
sometimes cited for having treated property as an example of transcendental nonsense in his
Transcendental Nonsense and the Functional Approach, 35 COLUM. L. REV. 809 (1935).
39. Cohen, Property and Sovereignty, supra note 38, at 12. As developed infra note 194, Cohen
also emphasized the importance of owners’ powers to exclude. Adam Mossoff argues that this aspect of
Realist writing has been largely unappreciated. Mossoff, supra note 23, at 2011–12.
40. Cohen, Property and Sovereignty, supra note 38, at 13.
41. Robert Hale, Coercion and Distribution in a Supposedly Non-Coercive State, 38 POL. SCI. Q.
470 (1923), discussed in ALEXANDER, supra note 1, at 335. On Hale’s thoughts more generally, see
BARBARA H. FRIED, THE PROGRESSIVE ASSAULT ON LAISSEZ FAIRE: ROBERT HALE AND THE FIRST
LAW AND ECONOMICS MOVEMENT (1998).
42. RESTATEMENT (FIRST) OF PROPERTY ch. 1, Introductory cmt. (1936), cited in Adam
Mossoff, What is Property? Putting the Pieces Back Together, 45 ARIZ. L. REV. 371, 395 n.93 (2003).
43. See Henry E. Smith, Property Is Not Just a Bundle of Rights, 8(3) ECON. J. WATCH 279, 280
(2011). See also Vandevelde, supra note 24, at 361–62 (citing Restatement’s use of the Hohfeldian
vocabulary). To the same effect, bundle critics often cite a 1936 definition of property as just “a
euphonious collocation of letters which serves as a general term for a miscellany of equities that persons
hold in the commonwealth.” Walter H. Hamilton & Irene Till, Property, in 12 ENCYCLOPEDIA OF THE
SOCIAL SCIENCES 528, 528 (1937), cited in Merrill & Smith, supra note 21, at n.36.
44. A.M. Honoré, Ownership, in OXFORD ESSAYS IN JURISPRUDENCE, FIRST SERIES 107–47
(A.G. Guest ed., 1961).
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conceptualized as components—or “sticks”—in the property bundle.45
Whether any of Honoré’s enumerated incidents was essential, was, and
continues to be, debated—a debate that, in the eyes of some, only
reinforces the idea that property is a bundle and that its composition is
contingent. The other major figure emerging at almost the same time is
Felix Cohen, whose Dialogue on Private Property46 further entrenched
the bundle-of-rights picture. While Cohen attacked the extreme Realist
position that property was a mere “euphonious collection of letters,”47 he
nonetheless described as a “confusion” the idea of property “as a
dyadic . . . relation between a person and a thing,”48 emphasizing that in
many cases “there may be no thing in a property relationship” and that
“property essentially involves relations between people.”49 Cohen
further emphasized the role of government in “private” property. In his
famous summary of property as a missive to the world to “Keep off X
unless you have my permission, which I may grant or withhold,” it was
essential not just that the communication be signed by “Private Citizen”
but that it be endorsed by “The State.”50 The final figure to reinforce the
bundle-of-rights metaphor in almost hyper-realist terms is Ronald
Coase, who (however improbably)51 inspired a generation of law and
economics scholars to conceptualize property as just a “cluster of in
personam rights,”52 nothing more than “the authoritative list of
permitted use of a resource—posted, as it were, by the state for each
object of scarcity.”53
The scholarly history of the bundle-of-rights metaphor tends to end
with Thomas Grey’s essay, The Disintegration of Property.54 Writing in
1980, Grey canvassed the variety of ways in which the term “property”
had come to be employed and found that “discourse about property has
45. Michael A. Heller, The Tragedy of the Anticommons: Property in the Transition from Marx
to Markets, 111 HARV. L. REV. 621, 663 (1998) (“Honoré’s list is now commonly accepted by property
theorists as a starting point for describing the core bundle of private property rights . . . , although some
theorists challenge the inclusion of one incident or another.”).
46. Felix S. Cohen, Dialogue on Private Property, 9 RUTGERS L. REV. 357 (1954).
47. Id. at 359, 378.
48. Id. at 378.
49. Id.
50. Id. at 374.
51. Thomas W. Merrill & Henry E. Smith, Making Coasean Property More Coasean, 54 J.L. &
ECON. S77, 83 (2011) (“Coase had little sympathy with the Legal Realist agenda of enhancing collective
control or redistribution of property.”).
52. Merrill & Smith, supra note 21, at 360. See also Merrill & Smith, supra note 51, at 80
(“Coase presupposed a particular picture of property—that of property as a bundle of rights, or more
precisely, as a collection of use rights authoritatively prescribed for each resource by the state.”).
53. Merrill & Smith, supra note 21, at 366.
54. Thomas C. Grey, The Disintegration of Property, in NOMOS XXII: PROPERTY (J. Roland
Pennock and John W. Chapman eds., 1980).
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fragmented into a set of discontinuous usages” that “depart drastically
from one another and from common speech.”55 Property, Grey wrote,
“is no longer a coherent or crucial category in our conceptual scheme.
The concept of property and the institution of property have
disintegrated.”56 Grey left no doubt of the cause of this phenomenon:
“The substitution of a bundle-of-rights for a thing-ownership conception
of property has the ultimate consequence that property ceases to be an
important category in legal and political thought.”57 Putting the point
another way, property as a legal category died no natural death, but was
effectively murdered by the bundle-of-rights conceptualization.58
To summarize: property scholars’ history of the rise in influence of
the bundle-of-rights metaphor begins with Hohfeld’s conceptualization
of “jural relations” as connections between persons and other persons
rather than between persons and things. It then moves to the Legal
Realists, who fitted this new conceptualization to emerging forms of
intangible property, to the functioning of property as power (sometimes
called “coercion”) in labor and other markets, and to their view of the
state. In the mid-1950s, Honoré’s enumeration of property’s incidents
enhanced the seeming suitability of the bundle-of-rights metaphor,
providing a list of potential sticks for the bundle, while Felix Cohen, as
his father before him, continued to attack the logic of connecting
property with things. Coase gave these views further traction by
predicating his analysis on a view of property rights as fundamentally in
personam relationships. By the end of the twentieth century, the bundleof-rights metaphor had robbed property of viability as an independent,
meaningful legal category.
To understand why this broad narrative is important to scholars
conceptualizing property in terms of things, it is useful to summarize
their larger project to theorize property in terms of means rather than
ends.59 In the view of these theorists, property begins with a problem,
complexity, and its rules are designed to “manage” that complexity in a
cost-effective way.60 The precise mechanisms by which that complexity
55. Id. at 72.
56. Id. at 74.
57. Id. at 81.
58. On Grey as the endpoint, see Mossoff, supra note 42, at 373; Mossoff, supra note 23, at
2010–11; Jonathan Remy Nash, Packaging Property: The Effect of Paradigmatic Framing of Property
Rights, 83 TUL. L. REV. 691, 694–707 (2009); Arnold, supra note 24, at 291.
59. See Katz, supra note 12, at 237 (while property theory cannot tell us what our substantive
priorities should be, “it can tell us quite a lot about how a system of property rights can function as a
strategy for regulating our conduct with respect to the things of the world”) (emphasis added). On
divisions within means theory itself, see supra note 12.
60. See, e.g., Smith, Institutions, supra note 5, at 2096 (“Property law manages much complexity
through modularity.”); Smith, Things, supra note 6, at 1703 (property employs “limited interfaces to
manage complexity”).
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is managed—the employment of modularity,61 boundaries,62 and
exclusion63—are of substantial interest. This is so because the goal of
these theories is to describe how property works at a structural,
architectural level64 and to highlight the specific features of property,
such as the employment of in rem rights,65 that make it different from
other fields of law.66 This approach is not indifferent to ends. The
argument is, rather, that if the means are sensible, good ends will
result.67 The aim is to uncover and foster the “institutional design” that
is most likely to have this effect.68 In the eyes of these theorists, the
larger narrative of the development of the bundle-of-rights view of
property embeds three separate dangers, each of which gives rise to its
own story critical of the bundle-of-rights conceptualization.69
B. A Story of Ad Hocery
The story:
If property is not a thing, or a right to a thing, but rather a bundle of
rights, immediately the question arises: what rights are in the bundle?
The ad hocery story teaches that once the bundle-of-rights metaphor
became entrenched, the bundle could consist of pretty much any
agglomeration of the incidents enumerated by Honoré. This is a story of
61. See, e.g., Smith, Things, supra note 6, at 1725 (“Property law is a modular system.”); Smith,
Institutions, supra note 5, at 2096 (“Property law manages much complexity through modularity.”).
62. See, e.g., Smith, Things, supra note 6, at 1703 (“Boundaries carve up the world into
semiautonomous components” that permit the management of highly complex interactions among
private parties.).
63. See, e.g., id. at 1704 (“The right to exclude is part of how property works.”); Smith,
Institutions, supra note 5, at 2115 (“exclusion is a starting point; it employs rough proxies that serve as a
first cut at protecting a wide and indefinite set of uses”). See also Lee Ann Fennell, Lumpy Property,
160 U. PA. L. REV. 1955 (2012) (describing property’s “lumpiness”).
64. Smith, Things, supra note 6, at 1692 (arguing for “an architectural approach to property”);
Smith, Institutions, supra note 5, at 2101 (“the architecture of property law in terms of exclusion and
governance implements a modular structure that helps to manage the complexity of actors’ interactions
with respect to resources”). See also Henry E. Smith, Mind the Gap: The Indirect Relation Between
Ends and Means in American Property Law, 94 CORNELL L. REV. 959, 976 (2009) [hereinafter Smith,
Gap] (“ends-focused theories tend to overlook the richness of the mechanism by which ends are
achieved”) (emphasis added).
65. On the importance of in rem rights, see Thomas W. Merrill & Henry E. Smith, The
Property/Contract Interface, 101 COLUM. L. REV. 773, 852 (2001); Chang & Smith, supra note 16, at
33–34.
66. See Jane B. Baron, The Contested Commitments of Property, 61 HASTINGS L.J. 917, 933–53
(2010) (describing the importance of property’s exceptionalism to means-focused information theories).
67. Smith, Gap, supra note 64, at 970.
68. Id.
69. On the connection between narrative and stories, see Jane B. Baron & Julia Epstein, Is Law
Narrative?, 45 BUFF. L. REV. 141, 147–48 (1997).
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“nominalism,”70 in which property means nothing and becomes but “a
‘laundry list’ of substantive rights with limitless permutations,”71 an
“arbitrary assemblage with no inner coherence.”72 As one leading critic
puts it, “different combinations of the bundle in different circumstances
may all count as ‘property,’ and no particular right or set of rights in the
bundle is determinative.”73
Property “could include all legal
74
relations,” and “the bundle picture puts no particular constraints on the
contents of bundles,” which are “totally malleable.”75
Those who think of property in terms of means find the ad hocery of
bundled rights troubling. They argue that it occludes understanding of
how property solves coordination problems. First, it dangerously
obscures the “in rem feature of property.”76 Viewed as a bundle,
property is but “an elaborate catalogue of in personam rights” that can
be configured by the state in any old way.77 This conceptualization
denies property’s uniqueness as a legal category.78 Contracts, torts, and
every area of law involve relations between and among persons; “if
property [is] defined tautologically as a collection of legal relationships,
then there [is] nothing to distinguish ‘property’ as a species within the
genus of law.”79 More importantly, ad hocery misconceives a
distinctive mechanism by which property operates, in the eyes of means
theorists, to solve coordination problems in the real world: the use, in
most cases, of standardized rights that send easy-to-understand
messages to dutyholders to keep off what they do not own.80 “If
70. See Cohen, supra note 46, at 378; Merrill, Prism, supra note 14, at 248; Mossoff, supra note
42, at 372.
71. Dagan, supra note 23, at 1534.
72. Richard A. Epstein, Bundle-of-Rights Theory as a Bulwark Against Statist Conceptions of
Private Property, 8(3) ECON. J. WATCH 223, 225 (2011).
73. Penner, supra note 1, at 723.
74. Vandevelde, supra note 24, at 362.
75. Smith, Things, supra note 6, at 1697.
76. Merrill & Smith, supra note 51, at 82 (“the bundle of rights picture had a side effect . . . in
that it obscured the in rem character of property rights”). On the notion that property rights are
ordinarily in rem exclusion rights, see, e.g., Henry E. Smith, Self-Help and the Nature of Property, 1
J.L. ECON. & POL’Y 69, 79 (2005) [hereinafter Smith, Self-Help] (“because of positive transaction
costs . . . we think in terms of things and especially in terms of in rem rights to exclude others from
them”); Merrill & Smith, supra note 21, at 360 (“property rights attach to persons insofar as they have a
particular relationship to some thing and confer on those persons the right to exclude a large and
indefinite class of persons (‘the world’) from the thing”).
77. Merrill & Smith, supra note 51, at 82.
78. See Baron, supra note 66.
79. Mossoff, supra note 23, at 2011. See also Arnold, supra note 24, at 291 (“Property rights, if
no longer defined by the things owned . . . , are not different than human rights, civil rights, contract
rights, or the like.”). Some ends-focused theorists have made the same point. See Singer, supra note 8,
at 1032 (“Taken to its extreme, the bundle-of-rights idea could suggest that property has no meaning
whatsoever as a legal category . . . .”).
80. On the importance of standardization in property law, see Thomas W. Merrill & Henry E.
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property rights can be adjusted along countless margins, often in the
course of the rendering of specific judgments by courts, then it becomes
natural to start to think of property as a kind of master list of rights and
duties set forth by some authoritative state institution for each type of
property—or indeed, for each particular parcel of property.”81 But,
means theorists assert, this kind of adjustment or customization is not
characteristic of property. Thus, in their eyes, the notion that rights can
be bundled in limitless ways is dangerously misleading.
Means-focused theorists also argue that ad hocery deprives property
of any principled basis on which to decide disputes. If all bundles are
contingent collections of unrelated rights (or powers, privileges, and
immunities, to use Hohfeld’s vocabulary), then what tells us how to
evaluate any given bundle? Should we just add up the number of rights,
powers, etc., without evaluating how these components connect to
normative goals?82 Should we privilege one stick in the bundle as
essential, and if so, how would we recognize that stick?83 How can we
tell whether any given restriction on land use, such as a total restraint on
future alienation, is permissible?84 The bundle-of-rights metaphor
makes all of these questions salient, but cannot itself answer them.
A final reason that ad hocery is troubling to means-focused property
scholars derives from the potential of the bundle-of-rights metaphor to
make every interest its own property right, raising problems of overfragmentation and over-propertization. This concern, it should be noted,
is shared by others across the spectrum of property scholarship.85 The
bundle-of-rights metaphor builds property out of component “sticks,”
but each such stick can be conceptualized as its own independent
property right.86 For Fifth Amendment purposes, for example, any
asset—such as the development rights over Grand Central Station at
Smith, Optimal Standardization in the Law of Property: The Numerus Clausus Principle, 110 YALE L.J.
1 (2000) [hereinafter Merrill & Smith, Optimal Standardization]. On the importance of in rem rights,
see Merrill & Smith, supra note 65; Merrill & Smith, supra note 21, at 357–65. Not all property
theorists share the view that property operates primarily in rem. See, e.g., Gregory S. Alexander,
Governance Property, 160 U. PA. L. REV. 1853 (2012).
81. Merrill & Smith, supra note 51, at 82.
82. See Dagan, supra note 23, at 1534, 1563 (suggesting that the bundles must be evaluated
through a normative lens, and criticizing the dissent in U.S. v. Craft, 535 U.S. 274 (2002), for failing to
engage in a normative analysis).
83. Merrill, Prism, supra note 14.
84. Eric R. Claeys, Bundle-of-Sticks Notions in Legal and Economic Scholarship, 8(3) ECON. J.
WATCH 205, 211 (2011).
85. It has been the particular focus of Michael Heller. See infra note 91. See also MICHAEL
HELLER, THE GRIDLOCK ECONOMY (2008).
86. Penner, supra note 1, at 734 (describing how, under the “disaggregative” version of the
bundle of rights, each use is “itself a property right if it can form the subject of a transaction”); Leif
Wenar, The Concept of Property and the Takings Clause, 97 COLUM. L. REV. 1923, 1928 (1997)
(inferring from the Hohfeldian view that “each property right is property”).
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issue in Penn Central87 or the right to mine subsurface minerals at issue
in Keystone88—could be regarded as a separate property interest, such
that a regulation substantially reducing or eliminating the value of this
isolated asset would constitute a taking, regardless of the larger value of
the property to which it is connected.89 The bundle-of-rights metaphor
provides no way to determine the proper unit of analysis in takings
cases.90 Moreover, the disaggregation of property bundles into smallerbut-distinct property rights raises the spectre of multiple component
rights owned by independent parties who cannot, or will not, agree to
coordinate their interests. In such cases, the fragmentation of the rights
in the bundle into independent property rights leads to anticommons
tragedies of underuse.91 As in so many contexts, the bundle-of-rights
metaphor raises the question of how to understand the connection of the
component rights to the whole bundle, but it cannot answer that
question.92
Another telling:
The ad hocery story’s “moral” about property’s instability as a legal
category, its futility in solving disputed issues, and its incoherence in
defining actual property interests, depends almost entirely on the radical
contingency of the bundling of particular rights, i.e., on the notion that
the bundles are assembled willy-nilly and can be reassembled at will.
But this vision of total contingency has been challenged from at least
two directions.
On one side, Merrill and Smith’s influential work on the numerus
clausus undermines the ad hocery story’s picture of almost complete
contingency.93 The numerus clausus principle posits that the universe of
87. Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104 (1978).
88. Keystone Bituminous Coal Ass’n v. DeBenedictus, 480 U.S. 470 (1987).
89. See, e.g., HORWITZ, supra note 31, at 160; Alexander, supra note 10, at 801; Wenar, supra
note 86, at 1928 (“if each stick is property, then removing a stick from someone’s bundle must be a
taking regardless of what other sticks remain in the person’s bundle (if any)”). This is the problem of
“conceptual severance,” a term coined in Margaret Jane Radin, The Liberal Conception of Property:
Cross Currents in the Jurisprudence of Takings, 88 COLUM. L. REV. 1667, 1674–79 (1998).
90. As the U.S. Supreme Court has stated the problem, “because our test for regulatory taking
requires us to compare the value that has been taken from the property with the value that remains in the
property, one of the critical questions is determining how to define the unit of property ‘whose value is
to determine the denominator of the fraction.’” Keystone Bituminous Coal Ass’n v. DeBenedictus, 480
U.S. 470, 497 (1987).
91. Heller, supra note 45, at 670; Heller, supra note 20, at 1202–03.
92. This point is often made with other metaphors. See, e.g., Claeys, supra note 29, at 632 (pizza
metaphor); Mossoff, supra note 42, at 374 (shopping bag metaphor); Penner, supra note 1, at 754 (cake
metaphor).
93. See Merrill & Smith, Optimal Standardization, supra note 80.
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property forms is closed and should remain so because of the high
information costs that would be imposed if parties were free to create
just any kind of property interest they might desire. If property rights
were infinitely adjustable in the way the ad hocery story proposes, then
nonowners—dutyholders who must avoid violating others’ property
rights—would have to acquire and process more information whenever
they encountered a property taking a new form; “if in rem [property]
rights were freely customizable—in the way in personam contract rights
are—then the information–cost burden would quickly become
intolerable.”94 As it turns out, in rem rights are not in fact customizable;
the law limits owners’ ability to create new estates or ownership forms,
i.e., “fancies.”95 Thus, property forms are “standardized” in order “to
reduce the widespread information-gathering and processing costs
imposed on third parties.”96 It is important to note that the numerus
clausus is not primarily a prescription about how property should be, but
is largely a description of how property is, “a fact about the way in
which the system of property operates.”97 In other words, the ad hocery
story notwithstanding, property bundles have not, in actuality, changed a
great deal over time.98
The story of the bundle’s radical contingency has been challenged
from a very different perspective by the ends theorist Joseph Singer,
who has claimed that a commitment to democratic values restricts
owners’ freedom to do anything they want with respect to their property.
“In a free and democratic society,” Singer writes, “some relationships
are out of bounds; this means that some contract terms are off the
table.”99 Singer understands the estates system not in terms of
information costs, as Merrill and Smith do, but in terms of substantive
values: “While the particular rules embodied in the estates system may
be outmoded historical leftovers rather than embodiments of
contemporary values, the idea of the estates system reflects a persisting
norm that defines certain property arrangements as incompatible with
our way of life.”100 Thus, property law bars owners from creating
94. Merrill & Smith, supra note 21, at 387. See also Merrill & Smith, supra note 51, at 90 (“If
every property right was described by a customizable list of permitted uses . . . and these rights had to be
understood and respected by all the world, the resulting information costs would be staggering.”).
95. Merrill & Smith, Optimal Standardization, supra note 80, at 27–34.
96. Merrill & Smith, supra note 21, at 387. See also Merrill & Smith, Optimal Standardization,
supra note 80, at 8 (on standardization of property as a means of reducing third party measurement costs
that are true externalities to those creating unusual property rights).
97. Merrill & Smith, Optimal Standardization, supra note 80, at 24.
98. Id. at 23–24.
99. Singer, supra note 8, at 1048. See also id. at 1049 (“Property law is part of the way we
define a legitimate social order. This means that certain property arrangements are defined as out of
bounds.”).
100. Id. at 1049–50.
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property rights that would enact “prohibited social and political
relationships” such as feudalism or slavery.101 This is not only a
normative claim about what property should do, but a descriptive claim
about the way in which property operates in the present: “The estates
system . . . outlaw[s] particular packages of legal rights with respect to
property [in order to] shape social life in a manner consistent with the
normative commitments of a democratic society composed of free and
equal individuals who treat each other respectfully.”102
Perhaps in theory the bundle of rights that constitute property could
be changed in uncountable ways and at will. But the relevant point here
is that means and ends scholars agree that owners’ freedom to combine
or recombine sticks in the property bundle is indeed limited. Obviously,
Merrill and Smith, on one side, and Singer, on the other, have very
different understandings of the reasons why owners’ freedom to bundle
property in an infinite number of ways must be limited. That does not
change the fact that, under either account, the bundles are not infinitely
malleable. The story of ad hocery is a story of possible, but not actual,
danger.
C. A Story of Elitism
The story:
Although the bundle-of-rights metaphor teaches that property is
actually about relationships rather than things, nonlawyers often do
think of property as things. Thus, there is a gap between “ordinary” and
“scientific” views of property103 or, to use a slightly different
vocabulary, between “popular” and “sophisticated” views.104 Having
two slightly different conceptions of property is not necessarily
problematic,105 but at some point the ordinary, popular conception of
property came to be seen as “benighted”106 and deluded. Only welltrained professionals, specialists, truly understood property.107 The
elitism story about the bundle-of-rights conceptualization of property is
about the way in which the bundle-of-rights view is overtly dismissive
101. Id. at 1051.
102. Id. at 1051–52.
103. BRUCE A. ACKERMAN, PRIVATE PROPERTY AND THE CONSTITUTION 27 (1977).
104. MUNZER, supra note 22, at 16.
105. Id. at 17 (arguing that the two conceptualizations can coexist “provided that the context
makes clear which conception is meant”).
106. Penner, supra note 1, at 733.
107. Jonathan Remy Nash argues that this depiction is inaccurate on numerous grounds, but
nonetheless describes it as the “metanarrative” of property paradigms and thus accepts that it operates as
an important story of the development of differing views about property. Nash, supra note 58, at 694.
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of the lay understanding of property-as-things.108
Like the ad hocery story, the elitism story is troubling for a number of
reasons. For those who take the position that property is about things,109
uses of things,110 or setting the agenda for the use of things,111 the
elitism story is a tale of how a false vision of property’s operation can
undermine or obfuscate the truth.112 Moreover, if property as things is
indeed “the natural frame through which people view property,”113 then
the gap between the “natural” and “learned” views of property will be a
source of frustration on both sides. Those untrained in the law will not
understand how academic lawyers talk about property, while academics
grow ever more impatient with lay conceptualizations that they regard as
naïve. In concrete contexts such as takings, this frustration is not trivial;
it is unsettling when “influential academic legal approaches to the
Takings Clause are far removed from any ordinary understanding of
what is at issue in the Clause and the kinds of reasoning appropriately
used in settling cases.”114 As one scholar argues, “there should
be . . . good reason to begin interpretation by construing key terms as
people commonly do. For then citizens who are legal specialists, and
citizens who are not, are more likely to have similar views of the
fundamental laws under which they all, after all, must live.”115 To the
extent that the bundle-of-rights metaphor has crowded out lay views, it
erodes the possibility of consensus on fundamentals.
Another telling:
108. The understanding of property-as-things is not identical to what has been called the “castle”
view of ownership. See Joseph William Singer, The Ownership Society and Takings of Property:
Castles, Investments, and Just Obligations, 30 HARV. ENVTL. L. REV. 309 (2006). The latter
emphasizes an owner’s freedom to do exactly as he pleases with owned property, while the former
emphasizes whether things are essential or even important to our definition of property.
109. See, e.g., Penner, supra note 1, at 805 (“The essential feature distinguishing property is that it
consists of a right to a thing which is only contingently connected to any particular person.”).
110. Claeys, supra note 84, at 208 (arguing that property is about the power to determine the uses
of things).
111. Larissa Katz, Exclusion and Exclusivity in Property Law, 58 U. TORONTO L.J. 275 (2008)
(agenda setting over things).
112. See Penner, supra note 1, at 714 (arguing that the bundle of rights metaphor is a “slogan”
that “rhetorically assuages the unease that results from our knowing there are real problems which, if
plainly articulated, would demand serious consideration”). See also Merrill & Smith, supra note 21, at
388 (arguing that “as long as property is regarded as simply a cluster of in personam rights” critical
features of property such as “legal standardization of property forms, or the numerus clausus” will be
obscured).
113. Nash, supra note 58, at 726–27 (presenting data supporting this assertion, but arguing that
“framing can affect one’s view of property rights”).
114. Wenar, supra note 86, at 1934.
115. Id. at 1946.
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Scholarly work studying the effects of “framing” on perceptions of
ownership suggests that views of property rights are not nearly as fixed
as the elitism story suggests and, therefore, that it is by no means
inevitable that the ordinary, lay conceptualization and the sophisticated,
scientific conceptualization will diverge. This work argues that the lay,
thing-centered, “discrete asset” paradigm and the “bundle” paradigm are
both simply “frames through which one views and conceives of property
rights.”116 But framing has an impact: “the precise way in which a
problem or choice is presented—i.e., its frame—may affect the
decisionmaker’s perception of the problem or choice, and ultimately the
decisionmaker’s preference.”117 Thus, “it might be possible to reframe
property rights and thus change people’s conception of what it means to
own property.”118
Empirical studies show that framing matters, and that, for example,
“subjects who received surveys that presented property rights under the
bundle paradigm were more accepting of [legal] interference [with the
exercise of their ownership “rights”] than those whose surveys presented
the rights under a discrete asset paradigm.”119 Additional studies
confirmed that “the use of the bundle paradigm to frame property rights
attenuates ownership perceptions and reactions to subsequent rights
restrictions.”120 The studies appear to show that “framing alone—with
no other substantive legal intervention—changes expectations regarding
the strength of property rights and reactions to subsequent
regulation.”121 Thus, what were seen as fixed “things” can come to be
seen as more malleable “bundles.” So even if the elitism story is correct
in its assertion that the discrete asset, thing-focused, paradigm is more
“natural,”122 those without legal training can still be “educated” to the
bundle paradigm.123
More importantly, if “property rights are subject to a paradigmatic
framing effect,”124 then presumably the reverse is also true: allegedlysophisticated actors who are well-trained in the bundle paradigm can
come to see property through a discrete asset, thing-centered, frame.
116. Nash, supra note 58, at 708.
117. Id. at 709.
118. Id. at 710.
119. Id. at 721.
120. Jonathan Remy Nash & Stephanie M. Stern, Property Frames, 87 WASH. U. L. REV. 449,
470 (2010). These studies might appear to confirm the worst suspicions of those who see the bundle-ofrights metaphor as a means for the enhancement of state regulatory power, as is asserted by the political
opportunism story, discussed infra text accompanying notes 126–130.
121. Nash & Stern, supra note 120, at 456.
122. Nash, supra note 58, at 723.
123. Id. at 723–24.
124. Id. at 723.
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Indeed, the resurgence of thing-based theories of ownership at the
highest academic reaches of property scholarship proves the point. At
least some of the elites within the academy hold firmly to the lay, thingbased conception of property even though they were taught the bundle
view in law school. Thus, the story of lay vs. sophisticated, ordinary vs.
scientific, understandings of property could be told quite differently.
Perhaps it is a story of oscillation—of shifting and reshifting
perceptions. Or perhaps it is a story of the enduring power of both the
“thing” and “bundle” views, neither of which can totally displace the
other. Perhaps it is a story of alternations in focus, where sometimes we
“see” property as a whole and other times see it as the sum of parts.125
All of these stories may be told just as plausibly as the story of elitist
dismissal of ordinary citizens’ views. And under almost all of these
retellings, a view of increasing or consequential divergence between lay
and academic views seems unfounded.
D. A Story of Political Opportunism
The story:
The third story emerging out the bundle-of-rights’ intellectual history
is a tale of political opportunism. It is parasitic on the ad hocery story’s
message that, under the bundle-of-rights conceptualization, no core of
essential rights is necessary to the concept of property and that,
therefore, the arrangement or composition of the sticks in any property
bundle is almost completely contingent.
This contingency has
implications for property’s stability: “if property is just a bundle of
rights . . . then adding or subtracting sticks from the bundle is an
expected feature of social life and no particular configuration of rights
should be privileged against inevitable change.”126 In the story of
political opportunism, the contingency of property rights bundles
effectively forced courts to turn to public policy to decide property
disputes: “By 1925, it was abundantly clear that the definition and
application of the concept of property could not be done by logical
deduction. The courts avoided paralysis by deciding cases according to
public policy.”127 Moreover, the story continues, Legal Realists could
use the bundle-of-rights metaphor to justify a conscious program of
“enlightened social engineering.”128 As one scholar argues, the work of
125. CAROL M. ROSE, PROPERTY AND PERSUASION: ESSAYS ON THE HISTORY, THEORY, AND
RHETORIC OF OWNERSHIP 278–65 (1994).
126. Merrill, Prism, supra note 14, at 248.
127. Vandevelde, supra note 24, at 366.
128. Smith, Things, supra note 6, at 1697. See also Merrill & Smith, supra note 51, at 82 (“The
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the Legal Realists “was part and parcel of a broader political program
that sought to direct the use, development, and disposal of land and
chattels through regulatory rules crafted by experts staffing the newly
created federal and state administrative agencies.”129 Putting this point
another way, “the ‘bundle of rights’ formulation enables its adherents to
avoid the implication that the regulatory state is a tide of wholesale
incursions on ownership.”130
The political opportunism story is not just a tale about New Deal
legislation and its aftermath. It is a story about how policy became
essential in creating and applying property rules. For means-focused
property theorists, who are concerned about the information costs of
delineating property rights, direct inquiry into the public policies
implicated by property disputes is problematic.131 The idea that property
bundles do or should “respond to policy concerns in a fairly direct
fashion”132 ignores the transaction costs of a “relation by relation, party
by party” construction of property rights.133 In the eyes of these
theorists, “property is a shortcut over the ‘complete’ property system
that would, in limitlessly tailored fashion, specify all the rights, duties,
privileges, and so forth, holding between persons with respect to the
most fine-grained uses of the most articulated attributes of resources.”134
Means theorists assert that because we do not live in a zerotransaction-cost world, property delineates rights by employing modular
baselines, “lumpy packages of legal relations—legal things.”135
Property then uses an in rem exclusion strategy in the ordinary case136 to
achieve ends such as “stability, promotion of investment, autonomy,
Legal Realists’ motivation for advancing the bundle of rights picture was political. The Realists sought
to ‘de-privilege’ property . . . [in order to] facilitate more extensive collective control over property,
especially through programs of redistribution.”).
129. Mossoff, supra note 23, at 2018.
130. Daniel B. Klein & John Robinson, Property: A Bundle of Rights? Prologue to the Property
Symposium, 8(3) ECON. J. WATCH 193, 195 (2011).
131. See Smith, Gap, supra note 64, at 970, and Smith, Things, supra note 6, at 1716–19, both
arguing against direct resort to ends rather than means in property theory.
132. Smith, Things, supra note 6, at 1697.
133. Id. at 1696.
134. Id. at 1693.
135. Id. at 1693.
136. In some cases, the “exclusion” strategy described here will not work: “spillovers and scale
problems call for more specific rules to deal with problems like odors and lateral support, and to
facilitate coordination (for example, covenants, common interest communities, and trusts). These
governance strategies focus more closely on narrower classes of use and sometimes make more specific
reference to their purposes, and so they are more contextual.” Smith, Things, supra note 6, at 1703. On
the exclusion and governance strategies more generally, see Henry E. Smith, Exclusion Versus
Governance: Two Strategies for Delineating Property Rights, 31 J. LEGAL STUD. S453 (2002)
[hereinafter Smith, Exclusion].
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efficiency, [and] fairness.”137 But these ends cannot be pulled out one
by one and used as the basis for decisions. To the contrary, “[r]equiring
that each piece of the system and each stick in the bundle transparently
reflect or promote our purposes”138 is neither necessary nor wise
because, in our system of property, values are served collectively, i.e.,
“results emerge from the system as a whole rather than its specific
parts.”139 If this is indeed how property promotes social order, then the
story of political opportunism, which requires overt resort to public
policy to decide every dispute, is another troubling—and misleading—
tale.
Another telling:
Even on the libertarian side of the ideological spectrum within
property theory, scholars disagree that the political opportunism story is
troubling. Recall that the bundle-of-rights metaphor fragments property
into component sticks, each of which can be characterized as a separate
property interest in its own right.140 For scholars opposed to “the topdown view of property that treats all property as being granted by the
state and therefore subject to whatever terms and conditions that state
wishes to impose,”141 the bundle’s fragmentation could sometimes
operate against the expansion of state power, in that interference with
any incident of property could be deemed a taking.142 Indeed, for
libertarians such as Richard Epstein, who note that “the protection of
each incident in the standard bundle of rights from state regulation
reduces state power,” it is the “unitary conception of property rights that
is in fact vulnerable to creeping statism.”143 In this view, the bundle-ofrights picture of property enhances individuals’ power against the state
rather than reducing it, as other versions of the political opportunism
story suggest.
And not all property theorists are libertarians. To the extent the
political opportunism story is about the triumph of the regulatory state, it
137. Smith, Things, supra note 6, at 1693.
138. Id. at 1719.
139. Id. at 1717.
140. See supra text accompanying notes 85–91.
141. Epstein, supra note 72, at 227–28.
142. Id. at 228. Libertarians are not the only group to have perceived the problem of enhanced
propertization posed by the bundle theory. See, e.g., HORWITZ, supra note 31, at 145–52 (on
propertization of everything); Heller, supra note 45, at 663 (on decomposition of property rights). For
the latter scholars, however, the enhanced propertization of fragmented bundles is seen as problematic
because such propertization, if truly carried into the realm of takings, would prevent all change,
HORWITZ, supra note 31, at 151, or might proliferate unproductive anticommons, Heller, supra note 45,
at 670.
143. Epstein, supra note 72, at 233.
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is entirely congenial to ends theorists. These scholars are committed to
the idea that property requires state regulation because, in their view,
property rights are not self-enforcing and because, they assert, in the
absence of state intervention to impose limits on the exercise of property
rights, property owners would be vulnerable to depredations by
thoughtless neighbors.144 In this view, the Realists’ emphasis on the role
of “public” power in “private” property simply made explicit an aspect
of property ownership that was always true, but which had been
suppressed by the absolutist rhetoric of the nineteenth century. In the
eyes of many contemporary property theorists, property remains
suffused by regulation; the common law estate system has been
pervasively supplemented by statutes governing zoning, fair housing,
mortgages, marital property, and nearly every other aspect of property
ownership.145 For antilibertarians, this is our property system, and these
regulations exist because we would not want a society without the kind
of protections they provide.146
To the extent that the political opportunism story is a story about the
central role of social policy in property law, it is especially congenial to
ends-focused contemporary property progressives,147 who have argued
that property should directly serve values such as human flourishing,148
virtue,149 or democracy.150 Direct conversations about public policies
that currently do or eventually should guide property decisions are, in
these theorists’ eyes, a very good thing indeed.151 To the extent that the
bundle-of-rights conceptualization in fact forces open consideration of
the public policies operative in property law,152 the story of political
opportunism is a fairly happy one.
144. See, e.g., SINGER, supra note 11, at 68 (“Property seems to require regulation.”). For an
extensive examination of this argument, see Jane B. Baron, The Expressive Transparency of Property,
102 COLUM. L. REV. 208, 216–18 (2002).
145. Singer, supra note 8, at 1052–53.
146. Id. at 1051–52.
147. I use their own descriptive term. See Gregory S. Alexander et al., A Statement of Progressive
Property, 94 CORNELL L. REV. 743 (2009). In addition to Alexander, the Statement is signed by
Eduardo M. Peñalver, Joseph William Singer, and Laura S. Underkuffler. For an argument that these
scholars are not progressive enough because they do not sufficiently focus on issues of acquisition and
distribution, see Ezra Rosser, The Ambition and Transformative Potential of Progressive Property, 101
CALIF. L. REV. 107 (2013).
148. Alexander, supra note 10.
149. Eduardo M. Peñalver, Land Virtues, 94 CORNELL L. REV. 821 (2009).
150. Singer, supra note 8.
151. For a detailed development of this point with examples, see Baron, supra note 66, at 945–52,
964–66.
152. See, e.g., Dagan, supra note 23, at 1533 (“If property is a bundle, it means that it has no
canonical composition, that a reference to the concept of property is an invitation to a normative inquiry
rather than to a menu of inevitable packages of incidents.”). Dagan warns, however, that sometimes
courts seek to avoid the necessary normative inquiry. See id. at 1534, 1561.
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*
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*
From the larger narrative about the rising influence of the bundle-ofrights metaphor for property, means-focused theorists crafted the ad
hocery, elitism, and political opportunity stories. These stories may not
be false, but they are not entirely true either. They are clearly meant to
portray the bundle-of-rights conceptualization as analytically, socially,
and politically dangerous, but it is by no means clear that the bundle-ofrights metaphor functions in the negative ways the stories depict.
III. THE CASE FOR THE BUNDLE-OF-RIGHTS METAPHOR
This Part argues that the bundle-of-rights metaphor for property can
be helpful. A bundle-of-rights analysis will help to specify the legal
relations of parties in both simple and complex property arrangements,
to identify explicitly the normative choices implicit in those
arrangements, to assess the quality of the human relationships that
property creates, and to force the production of information pertinent to
those issues. Bundle-of-rights analysis can address property’s means as
well as its ends.
A. Specification of Legal Relationships
As we have seen,153 one thread within property scholars’ history of
the bundle-of-rights metaphor attributes part of the metaphor’s rise in
popularity to the de-physicalization of forms of wealth toward the end of
the nineteenth century. But of course property was divided between
tangibles and intangibles much earlier. Future interests, easements,
profits, mortgages, and copyrights are all examples of intangibles that
were recognized as property interests long before the start of the
twentieth century. Indeed, estates in land, the very bedrock of the feudal
as well as modern property system for categorizing rights in realty, are
not themselves tangible.
One can speak of intangible property interests as if they were material
objects. Kenneth Vandevelde asserts, for example, that “the courts of
Blackstone’s era claimed to be protecting the possession of things,” and
“if no physical thing was possessed, as with incorporeal hereditaments
or a chose in action, one was fictionalized.”154 But it is not just
Blackstonian era courts who speak of intangibles as if they were objects
capable of physical possession. In common contemporary parlance, one
“holds” a mortgage on Whiteacre, and one “has” an easement
153. See supra note 31.
154. Vandevelde, supra note 24, at 333.
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appurtenant over Blackacre.
But when we try to explain what is “held”—what a mortgage or an
easement is—we quickly move to a different sort of terminology. We
talk about partial rights, rights involving other people. An easement
appurtenant is a right to pass over land owned by another155; a vested
remainder is a present right to future possession of property currently
possessed by another.156 Specifically, an easement holder may freely
enter upon land he does not own where that entry would otherwise be a
clear instance of trespass, while a remainderman may prevent the
current occupant from making certain uses of the land (waste) that the
latter would otherwise be free to undertake. The easement holder,
however, does not have unlimited freedom with respect to the servient
estate, but has only limited use rights. The same is true of the
remainderman, who can control only a limited range of the current
occupant’s behaviors.
The bundle-of-rights metaphor is quite useful in these sorts of cases
because it allows us to describe with great particularity and specificity
who has what rights against whom. In this way, the bundle-of-rights
metaphor supplies a vocabulary that is “useful because it provides a
language specifying what legal rights and obligations a particular
property doctrine creates in terms of the precise obligations and
parties.”157 This vocabulary is all the more helpful with respect to
complex governance arrangements such as common interest
communities or residential owners associations.158 The bundle-of-rights
metaphor permits teasing out the different facets of ownership in these
complex arrangements; in a condominium, for example, an owner might
have one set of rights to his dwelling (a fee simple), but a different set of
rights to his space in a parking lot (an easement) or to the common areas
of the development, such as the swimming pool (joint tenancy).159 The
owner might have one set of legal relationships with respect to those
living within the condominium and a quite different set of relationships
with respect to those who are not condominium members.160 Specifying
155. JOSEPH WILLIAM SINGER, PROPERTY 176 (3d ed. 2010) (“Rights to do specific acts on land
owned by someone else are called easements.”).
156. Id. at 300 (explaining division of present and future interests). For present purposes, I will
use the term “right” to include Hohfeldian powers, privileges, and immunities.
157. Claeys, supra note 29, at 622.
158. Heller, supra note 20, at 1191 (asserting that the “thing-ownership metaphor . . . does not
help identify boundaries of complex governance arrangements and modern intangible property”); id. at
1193 (“the modern bundle-of-legal relations metaphor reflects well the possibility of complex relational
fragmentation”). Heller believes, however, that the metaphor gives a “weak sense of the ‘thingness’ of
private property.” Id.
159. The particular example is drawn from ROSE, supra note 125, at 280.
160. Condominium declarations and by-laws, for example, may limit members’ rights among
each other in ways that would not be true for fee owners. See, e.g., O’Buck v. Cottonwood Village
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each set of property interests, and the parties against whom they might
apply, can sometimes be clarifying.161
To be sure, understanding that property interests consist of specific
rights, powers, privileges, and immunities that may vary depending on
the parties involved (neighbors, trespassers, creditors, etc.) does not
imply that an owner ought to have a specific power or ought to be able
to fragment property interests in any particular fashion.162 Nor can the
vocabulary alone tell us whether or how some rights ought to fit together
into interconnected and interdependent groupings.163 But the fact that
the vocabulary of bundled rights cannot itself answer these normative
questions about the limits of fragmentation is not, alone, a critique of the
metaphor. If the bundle vocabulary enables clearer specification of the
powers and interests involved in property fragmentation, or of the
interests that could or should be grouped together, then at the very least
it sharpens the framing of the normative issues that will have to be
resolved. There is something to be said for clarifying the issues on the
table.
To the extent it provides greater specificity, the bundle-of-rights
metaphor is quite consistent with means-focused property theory.
Means scholars concede that many property rights do not actually
operate as in rem rights governed by exclusion, but instead require
“governance rules,” which “allow society to control resources in
nonstandard ways that entail greater precision or complexity in
delineating use rights than is possible using exclusion.”164 For these
rights, which require more fine-tuning than the exclusion strategy
permits, the bundle-of-rights metaphor should be particularly helpful in
specifying precisely the rights and relationships that the fine-tuning
governance strategy might entail.165
Condo. Ass’n., Inc., 750 P.2d 813 (Alaska 1988).
161. See Robert C. Ellickson, Two Cheers for the Bundle-of-Sticks Metaphor, Three Cheers for
Merrill and Smith, 8(3) ECON. J. WATCH 215, 217 (2011) (suggesting that a student confused by the
fragmentation of ownership into particular privileges of use, or by temporal limitations on ownership,
might find the notion that the owner has broken his property into separate sticks “clarifying”).
162. Claeys, supra note 29, at 622 (arguing that the bundle vocabulary “cannot do justificatory
work”). See also Heller, supra note 20, at 1193–94 (arguing that the bundle metaphor does not
determine how “to distinguish things from fragments, bundles from rights, and private from nonprivate
property”).
163. ROSE, supra note 125, at 280 (noting that the bundle metaphor “weakens the sense that
groupings of property rights might be interconnected and interdependent”). See also Smith, Things,
supra note 6, at 1700 (“[P]roperty law provides for actual bundles of rights (or legal relations) that
exhibit features relating to their completeness not captured as the sum of their parts.”).
164. Merrill & Smith, supra note 65, at 797. On the general distinction between exclusion and
governance strategies, see Smith, Exclusion, supra note 136.
165. Since the question of where to draw the line between exclusion and governance is an
“empirical question,” Henry E. Smith, Exclusion and Property Rules in the Law of Nuisance, 90 VA. L.
REV. 965, 1024–25 (2004), there is no way to know whether governance is truly exceptional, but in
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B. Flexibility and Choice
The bundle-of-rights metaphor captures a fluid conception of property
as something that must be created rather than something that is already
fixed. The Blackstonian conception of ownership as despotic dominion
produced an apparently simple algorithm for deciding cases, one that
seemed to make choice unnecessary. “Under the old Blackstonian
conception, the key questions in any legal dispute were, who is the
owner and was that person’s ownership unlawfully injured in some
way.”166 When the Blackstonian conception broke down, it became
increasingly difficult to deduce consequences from anything in
property’s “nature.”167 If property rights are not absolute, then they can
be limited. Exactly whether and how they are limited involves choices
about what rights ownership entails. Moreover, these choices can
change over time.
As a bundle of rights, “property is malleable and adaptable. New
rights in property can be conceived. New sets of rights can be
bundled.”168 As Hanoch Dagan puts it, “the bundle metaphor captures
the truism that property is an artifact, a human creation that can be, and
has been, modified in accordance with human needs and values.”169
The choices that underlie limitations on, or modifications of, property
rights, require normative analysis. As Dagan explains, “the whole point
of the bundle metaphor . . . is to trigger such an analysis.”170
Rather than resorting to internal deductive reasoning, decision makers
must ask whether it is justified that a certain category of people (i.e.,
owners) will enjoy a particular right, privilege, power, or immunity over a
category of resources (land, chattels, copyrights, patents, and so on) as
against another category of people (spouses, neighbors, strangers,
community members, and so on).171
The answers to these questions will be neither obvious nor
uncontroversial, but asking what is in (or out) of the bundle—for
example, whether an owner’s rights against a neighbor should be the
Smith’s other work he makes it clear that property begins with exclusion. See, e.g., Smith, Things,
supra note 6, at 1705 (describing exclusion as a “first cut” at serving the purposes of property law). For
an argument that “exclusion property” is not the dominant mode of ownership today, see Alexander,
supra note 80.
166. ALEXANDER, supra note 1, at 381.
167. Vandevelde, supra note 24, at 328–330 (describing the erosion of the Blackstonian
conception over the 19th century and concluding that “[t]his century long evolution resulted in an
inability of property concepts to settle controversies and to legitimate the results”).
168. Arnold, supra note 24, at 289 (emphasis omitted).
169. Dagan, supra note 23, at 1532.
170. Id. at 1534.
171. Id. at 1533.
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same as the owner’s rights against a complete stranger—forces
transparency about the decisions being made.172
Consider the law of landlord/tenant. At one time, the law subscribed
to the following axioms: a landlord was legally obliged to offer a tenant
only the bare right of possession rather than actual possession;173 the
landlord had no duty to mitigate damages on the tenant’s default;174 the
landlord could deny consent to assignment or sublease for any or no
reason;175 and the landlord had no duty to maintain the premises.176 The
landlord’s bundle of rights did not require the landlord, in making
decisions about the property, to take the tenant’s interest into account.
Today, virtually every one of these old legal axioms has been
reversed.177 The landlord’s bundle of rights under contemporary law
does require consideration of the tenant’s interests throughout the
leasehold relationship. Unpacking the parties’ specific rights, powers,
duties, etc. before and after the landlord/tenant “revolution” enables
clarity about the choices—and values—pertaining under both the old
and new legal regimes. That unpacking also demonstrates that
normative choices about property can and do change. There is no
consensus on whether the new regime is superior to the old.178
Nonetheless, the bundle-of-rights formulation fosters clarity about what
the disagreement is about and encourages explicit debate about the
substantive issues.
Clear identification of the parties, rights, powers, privileges,
immunities, and values involved in a property dispute puts the issues on
the table. As with the limits of fragmentation, the bundle-of-rights
metaphor alone cannot resolve them. It does not follow, however, that
all resolutions will be equally acceptable, or that there will be no
principled basis on which to make judgments about possible
outcomes.179 For example, we might, as one theorist has suggested,
172. See id. (“If property is a bundle, it means that it has no canonical composition, that a
reference to the concept of property is an invitation to a normative inquiry rather than to a menu of
inevitable packages of incidents.”).
173. Hannan v. Dusch, 153 S.E. 824 (Va. 1930) (describing and following this rule).
174. Sommer v. Kridel, 378 A.2d 767 (N.J. 1977) (describing this rule, but declining to follow it).
175. Kendall v. Ernest Pestana, Inc., 709 P.2d 837 (Cal. 1985) (describing this rule, but declining
to follow it).
176. Javins v. First Nat’l Realty Corp., 428 F.2d 1071 (D.C. Cir. 1970) (describing this rule, but
declining to follow it).
177. See, e.g., cases cited supra notes 173–176.
178. See, e.g., Richard Craswell, Passing on the Costs of Legal Rules: Efficiency and Distribution
in Buyer-Seller Relationships, 43 STAN. L. REV. 361 (1991) (examining the possibility that the implied
warranty of habitability will make tenants worse off).
179. See Dagan, supra note 23, at 1534 (“[T]he bundle metaphor should not mislead us into
thinking that property can be conceived of as a ‘laundry list’ of substantive rights with limitless
permutations.”).
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think of different property estates, such as the landlord/tenant
relationship or the tenancy by the entirety, as “default frameworks of
interpersonal interaction,”180 each promoting different values, some
more atomistic and others more communitarian.181 Under this theory,
we would evaluate the “sticks” in each estate’s bundle by reference to
whether they consolidated expectations or expressed ideals appropriate
to the estate in question.182 Alternatively, we might evaluate whether, in
a given context, the precise organization of property rights, duties, and
so forth “promote relations of domination and subordination” or,
alternatively, whether they “promote reciprocity” in the process of social
coordination.183 There may be real disagreement over what principle—
freedom, virtue, or efficiency—should be used to evaluate any
configuration of property sticks,184 but the notion of malleability and
flexibility implicit in the bundle concept does not mean that decisions
will be unprincipled or random. Decisions will not have the automatic,
algorithmic quality of the Blackstonian conception, but this does not
mean the decisions cannot be rational.
Consideration of individual property sticks and their bundling need
not undermine the possibility of in rem rights. Means-focused theorists
highlight the transaction costs of delineating property rights and note
repeatedly that in the real world, in which such costs pertain, it is
unrealistic to construct property rights one by one, individual by
individual, parcel by parcel.185 But the bundle-of-rights metaphor does
not require consideration of every possible combination of parties,
rights, and objects in dyadic combination. We can ask, using the
bundle-of-rights metaphor, whether an individual ought to have a use
right that is good “against all the world.” If in fact most property rights
are truly rights in rem, accompanied by a correlative duty of respect that
“has an impersonality and generality that is qualitatively different” from
180. Id. at 1558.
181. Id. at 1560.
182. Id. at 1562. Reasonable persons might disagree about the values that are appropriate or
whether a given outcome in fact furthers those values. Dagan does not explain how we know what “set
of human values” connects with any given “property institution.” Id. For present purposes, this problem
is not critical; what is important is that under his theory property does not collapse into a list of
substantively independent sticks.
183. Purdy, supra note 9, at 1244–45.
184. See Katz, supra note 59, at 237 (“Property theory cannot tell us very much about what our
priorities should be, e.g., efficient markets, a healthy environment, stable communities, or individual
freedom.”).
185. See Chang & Smith, supra note 16, at 4 (In a zero transaction cost world, “we could serve
each individual’s interest in use vis-à-vis every other individual’s potential use interest by specifying the
rights and duties . . . that hold pair-wise between all members of society with respect to the most
articulated uses of the smallest fragments of things. This is intractable in our world.”). See also Smith,
Things, supra note 6, at 1696–98 (making this same point).
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other, non-property-based duties,186 then the specification of interests
under the bundle-of-rights model should only make that clearer.187 The
“negative duties of abstention”188 entailed by rights in rem—duties not
to enter upon, take, or use property owned by another—can be
elaborated under the bundle-of-rights model even if, as property-asthings theorists assert, “these universal duties are broadcast to the world
from [a] thing itself.”189
Nor does the bundle-of-rights metaphor require us to start from
scratch, ignoring the existing system of estates or other property
doctrines that have developed over time. At the end of the day, in
response to hard questions, we may decide to modify some of our
current rules—as we did in the context of landlord/tenant relationships.
But that does not require us recklessly to abandon or modify or recreate
our entire estates system. If proposed modifications would unduly
disrupt the standardization of the numerus clausus, this disruption would
be an argument against change. The bundle conceptualization does not
require us to choose to change existing property rules. Rather, it
challenges us to acknowledge the choices property entails.
C. Property Rights as Relations Among Persons
The bundle-of-rights conceptualization directs attention toward the
effects of property rights (powers/privileges/immunities) on other
people, be they other owners or nonowners, and this attention enables
assessment of whether the relationships property constructs are morally
and socially acceptable. As we have seen, there is consensus that the
186. Merrill & Smith, supra note 65, at 787.
187. Some of the information theorists’ skepticism about the bundle of rights metaphor may
derive from their view of what it means for a right to be in rem: “in rem property rights are qualitatively
different” from in personam rights, they assert, “in that they attach to persons insofar as they have a
certain relationship to some thing.” Merrill & Smith, supra note 21, at 364. In addition, “in rem rights
apply to a large and indefinite class of dutyholders.” Merrill & Smith, supra note 65, at 789. Merrill &
Smith argue that Hohfeld misconstrued in rem rights, seeing them as differing from in personam rights
“only in the indefiniteness and the number of the persons who are bound by these relations.” Merrill &
Smith, supra note 21, at 364.
If the bundle metaphor is incapable of dealing with rights that are good against indefinite
numbers of persons, then it would follow that it is not appropriate for in rem rights, as Merrill & Smith
define such rights. But there is no reason to assume that the bundle metaphor cannot define rights that
are, to use Merrill & Smith’s terms, impersonal and general. Indeed, in recent work Merrill & Smith
concede that “the bundle of rights picture is not logically incompatible with understanding that property
rights are rights in rem.” Merrill & Smith, supra note 51, at 82. It is true, as developed infra text
accompanying notes 192–202, that the bundle often highlights the social, relational dimension of
property rights, but the sociality described need not be constructed on a relationship-by-relationship
basis or, as Smith puts it, “pairwise.” Smith, Things, supra note 6, at 1704.
188. Merrill & Smith, supra note 21, at 359.
189. Id.
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bundle-of-rights metaphor originates in Hohfeld’s analysis of
fundamental jural relations.190 While Hohfeld’s primary justification for
his scheme was “accurate thought and precise expression,”191 scholars
have consistently noted that his pairings highlight the social dimension
of property—that these relations pertain between people.192 Hohfeld
was certainly aware of this dimension of his analysis, writing that “since
the purpose of the law is to regulate the conduct of human beings, all
jural relations must, in order to be clear and direct in their meaning, be
predicated of such human beings.”193
Why should it matter that jural relations are “predicated of . . . human
beings”? Hohfeld did not directly pursue this question, but it seems
clear that at a minimum it can be said that every exercise of a right,
power, privilege, or immunity will affect another person. An owner can,
for example, keep his neighbor off his land and require her to obtain his
permission if she wishes to enter.194 There is nothing inherently
problematic or troubling about this social relationship in the abstract. If
the neighbor, for example, owned the parcel next door, she could keep
the adjacent owner off her land and similarly require him to obtain her
permission to enter. Their relationship would be entirely reciprocal and
balanced.
Of course, not all persons are similarly situated with respect to
property. If the owner and the neighbor are not in roughly equal
positions, in terms of ownership, and the neighbor is in need of
190. See supra notes 18–26 and accompanying text. In Hohfeld’s scheme, “claim rights” come
paired with opposite “no-rights” as well as correlative “duties,” and similar pairings exist for
“privileges”
(duties/no-rights),
“powers”
(disabilities/liabilities),
and
“immunities”
(liabilities/disabilities). Fundamental Legal Conceptions II, supra note 18, at 710.
191. Id.
192. See, e.g., ALEXANDER, supra note 1, at 321 (“Hohfeld’s analysis illuminated the complex
and relational character of ownership” and revealed that ownership is “fundamentally social.”); Cohen,
supra note 46, at 363 (“[T]his institution of property that we are trying to understand may or may not
involve physical objects, but always does involve relations between people.”); MUNZER, supra note 22,
at 26 (“[T]he Hohfeld-Honoré analysis starts from the central truth that property involves relations
among persons and with respect to things.”).
193. Fundamental Legal Conceptions II, supra note 18, at 721.
194. To use Hohfeld’s words, “if X has a right against Y that he shall stay off the former’s land,
the correlative (and equivalent) is that Y is under a duty to X to stay off the place.” Fundamental Legal
Conceptions I, supra note 18, at 32. The legal relation between X as owner of a particular parcel and of
Y as the nonowner of that parcel is also a social relation, in which X can exclude Y and Y is not free to
enter X’s land without obtaining X’s permission.
I do not mean to suggest here that all property rights have exclusion at their core, though
many scholars do believe that is true. See, e.g., Cohen, supra note 38, at 12 (“[T]he essence of private
property is always the right to exclude others.”); Cohen, supra note 46, at 371 (“Private
property . . . must at least involve a right to exclude others from doing something.”); Thomas W.
Merrill, Property and the Right to Exclude, 77 NEB. L. REV. 730 (1998) (arguing that exclusion is
central). My point here is that property in Hohfeld’s example constructs a relationship between X and Y
in which X has certain legal capacities—in this case, the capacity to exclude—that Y may lack.
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something that the owner owns, then the social relationship property
constructs involves a vulnerability of the neighbor to the owner. This
was Morris Cohen’s point about property and sovereignty:
If . . . someone else wants to use the food, the house, the land, or the plow
which the law calls mine, he has to get my consent. To the extent that
these things are necessary to the life of my neighbor, the law thus confers
on me a power, limited but real, to make him do what I want.195
To recognize that property is a form of sovereignty, Cohen asserted,
“is not itself an argument against it,” for “some form of government we
must always have.”196 But not all forms of government—and not all
legal relationships—are of equal value. Cohen suggested that “it is
necessary to apply to the law of property all those considerations of
social ethics and enlightened public policy which ought to be brought to
the discussion of any just form of government.”197
We may find that many relationships exhibit rough equality, but we
may find that many relationships do not. The homeless, to take a vivid
example, experience only duties, no-rights, liabilities, and disabilities.
This cumulation of the less desirable aspects of property consigns the
homeless to a status in which it becomes possible for them to be seen as,
effectively, objects rather than as subjects.198 In many important
respects, property may connect to identity; lack of property may injure
one’s sense of belonging or of citizenship.199 To the extent that deep
disparities in status are troubling,200 we may find disturbing property
relationships that construct serious, nonreciprocal vulnerabilities.
The point is that focusing on the relational effects of property in turn
forces consideration of the kind of relationships that, to recur to Cohen’s
words, are acceptable to us as a matter of “social ethics and enlightened
public policy.” As with the specification aspect of the bundle-of-rights
metaphor, there is nothing like consensus on what “enlightened social
policy” requires or on what kinds of relationships it might condemn.
Social obligation theory, to take one example, posits that “a property
system should seek to nurture social relationships of equal respect and
dignity, relationships of fairness and nondomination.”201 Even if
scholars were in widespread agreement that property should further such
195. Cohen, supra note 38, at 12.
196. Id. at 14.
197. Id.
198. Jane B. Baron, Property and “No Property”, 42 HOUS. L. REV. 1425, 1448 (2006).
199. See Nestor R. Davidson, Property and Identity: Vulnerability and Insecurity in the Housing
Crisis, 47 HARV. C.R.-C.L. L. REV. 119, 140 (2012).
200. Cf. Nestor R. Davidson, Property and Relative Status, 107 MICH. L. REV. 757 (2009)
(discussing how status anxieties can fuel dysfunctionality in the acquisition and use of property).
201. Gregory S. Alexander, Pluralism and Property, 80 FORDHAM L. REV. 1017, 1023–24 (2011).
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relationships—and they are not202—“respect,” “dignity,” “fairness,” and
“nondomination” are all qualities that can be defined in quite different
ways. The argument for the bundle-of-rights conceptualization of
property is not that it will define these terms, but that it will force more
open confrontation both of the kinds of relationships property ought to
promote (or tolerate) and of the extent to which any particular
relationship actually instantiates the qualities sought to be furthered.
Means-focused theories argue that the bundle-of-rights
conceptualization’s inquiries into the quality of property relationships
potentially confuse means and ends.203 As recent work by Henry Smith
puts it, the purposes of property are one thing (“our interest in using
things”),204 but our “strategies” for serving those purposes (a baseline of
exclusion, supplemented by governance)205 are different.206
A
relationship-by-relationship analysis such as is promoted by the bundleof-rights idea ignores the ways in which property produces results
indirectly, as a system.207 Smith asserts that the relational inquiries
made as part of a bundle-of-rights analysis promote “the promiscuous
employment of contextual information in property.”208 The answer to
this objection depends on the word “promiscuous,” but if Smith’s
concern about context is that its use denies that sometimes “results
emerge from the system as a whole rather than its specific parts,”209
there is no reason to fear the sort of particularized inquiry the bundle-ofrights conceptualization contemplates. A bundle-of-rights analysis is
202. See, e.g., Eric R. Claeys, Virtue and Rights in American Property Law, 94 CORNELL L. REV.
889, 890 (2009) (“In its commonsensical understanding, after all, property consists of dominion—a
domain of freedom to decide how to apply the object of ownership to his own life plans, independent of
direction from philosopher-kings or anyone else.”); Penner, supra note 1, at 742 (“The right to property
is the right to determine the use or disposition of an alienable thing in so far as that can be achieved or
aided by others excluding themselves from it.”).
203. Smith, Things, supra note 6, at 1692 (“[T]o get anywhere, we have to be clear about the
difference between means and ends in property.”). See also Smith, Gap, supra note 64, at 963
(describing a “gap” between property law and the end of human flourishing, but arguing that “[p]roperty
is an area of law that has gappiness at its core”).
204. Smith, Things, supra note 6, at 1693.
205. Id.
206. Id. (“Once we recognize the distinction between our interest in using things and the
institutions that property law sets up to serve those interests, the role of property baselines as a means
for achieving property’s ends becomes clearer.”).
207. Id. at 1717 (asserting “results emerge from the system as a whole rather than the sum of its
specific parts”). The concern is that the bundle inquiry will involve “all governance all the time.” Id. at
1704. While there is a rule for governance in means-focused theories of property, see supra notes 36,
164–165 and accompanying text, it is a limited role, applicable only for “certain important potential use
conflicts” such as nuisance. Smith, Institutions, supra note 5, at 2096 (“Only in specific contexts does
the law inquire into uses more directly, such as when one landowner produces odors that annoy a
neighbor.”).
208. Smith, Things, supra note 6, at 1717.
209. Id.
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capable of recognizing both that property rights can be disaggregated
and that, disaggregation notwithstanding, property’s whole may
sometimes be distinct from the sum of its parts. Similarly, a bundle-ofrights analysis is capable of assessing whether a particular exercise of a
power that looks “nasty and selfish” is, in fact, “efficient, fair, just, or
virtue promoting . . . in the context of the system as a whole,”210 and
whether the system is serving some values collectively even if it is not
doing so “individually and separably.”211 It is possible to accept that
property operates as a system and yet examine the operation of that
system in a granular manner, focusing on outcomes (the relationships
the system produces) as well as architecture (how the system produces
outcomes).
D. Forcing Information
The bundle-of-rights conceptualization of property is designed to
elicit information. Specifying who has what rights against whom,
especially in complex property arrangements, requires examination of
exactly how legal rights have been fragmented both physically and
temporally and how they have been allocated among the parties.212
Focusing on the system’s choices in granting rights, powers, privileges
and so forth to some, while denying them (in whole or part) to others,
requires clarity about the values, actual and ideal, served by property
law. Recognizing that property is social in character, that it affects that
quality of interactions between situated individuals, invites
consideration of what kinds of relationships we will accept or want to
foster; equally, it invites consideration of what kinds of power
individuals may acceptably exercise over other individuals.
The bundle-of-rights metaphor has been criticized repeatedly for
failing to provide a formula for answering these questions. This
criticism misses the point. The metaphor’s function is to produce
information that will make it possible to apprehend these questions, to
make them salient. Once we apprehend these—and appreciate that they
are questions—we can discuss potential answers to them. There is
likely to be serious disagreement about the values property should
promote—freedom, efficiency, equality, human flourishing, democracy,
etc.—and about the particular rules to be used to further any one of these
values. It is true that the bundle-of-rights conceptualization cannot
210. Id. at 1718.
211. Id. at 1719.
212. See, e.g., Ellickson, supra note 161, at 216–17 (describing five dimensions in which rights in
property can be fragmented); Heller, supra note 45, at 662–64 (describing ways of “decomposing”
ownership rights).
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resolve these disagreements. But it can help make apparent exactly
what the stakes are in the disputes, by providing a clear picture of the
contexts in which they arise, the nature of disputes, and the concrete
effects of exercises of property rights.
Duties provide a helpful window on the information-forcing aspects
of the bundle-of-rights conceptualization, especially by comparison to
the information-hiding aspects of the theory of property as things.
Summarizing very broadly, property as a law of things protects owners’
use rights through an exclusion strategy.213 That strategy, means
theorists assert, solves a “massive coordination problem”214 created by
the fact that “a large and indefinite class of dutyholders must know”
what to do (or not do) in order “to avoid violating property rights.”215 In
the eyes of means theorists, customized rights imposing particularized
duties would pose an “intolerable” information–cost burden on
nonowners.216 But, means theorists argue, “in rem rights offer
standardized packages of negative duties of abstention that apply
automatically to all persons . . . when they encounter resources that are
marked in the conventional manner as being ‘owned.’”217 Thus, without
knowledge of who owns property, for what purpose that owner intends
to use it, or any other fact other than that they do not themselves own the
thing in question, nonowners can fulfill their duties to owners by
keeping off what is not theirs.218 And this makes individuals better off,
as they will not unwittingly violate someone else’s idiosyncraticallycreated right.219
It is surely not surprising that the theory of property as a law of
things, with its emphasis on the transaction costs of delineating property
rights, highlights how much information is hidden by property’s
213. On the notion that property rights are ordinarily in rem exclusion rights, see, e.g., Smith,
Self-Help, supra note 76, at 79 (“because of positive transaction costs . . . we think in terms of things
and especially in terms of in rem rights to exclude others from them”); Merrill & Smith, supra note 21,
at 360 (“[P]roperty rights attach to persons insofar as they have a particular relationship to some thing
and confer on those persons the right to exclude a large and indefinite class of persons (‘the world’)
from the thing.”).
214. Merrill & Smith, supra note 21, at 387.
215. Id.
216. Id.
217. Merrill & Smith, supra note 65, at 794. See also Thomas W. Merrill & Henry E. Smith, The
Morality of Property, 48 WM. & MARY L. REV. 1849, 1850 (2007) (“Property is a device for
coordinating both personal and impersonal interactions over things. Consequently, property rights must
be communicated to a wide and disparate group of potential violators; these rights are in rem. Because
property rights need to coordinate the behavior of large numbers of unconnected people, they must be
easily comprehended and must resist possible misinterpretation.”).
218. See infra note 222 (on the duty to “keep off”).
219. On the costs of idiosyncratically-created property rights, or “fancies,” see Merrill & Smith,
Optimal Standardization, supra note 80, at 26–35.
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modular architecture.220 Exclusion, for example, delegates to owners
decisions about the use of their property, without anyone needing to
know the purposes for which the owner intends to use the property.221
Duty holders—those who must respect owners’ rights by keeping
themselves off the latters’ property222—need not know anything about
those owners or their intended uses.223 And since property acts in rem,
the identity of duty holders also need not be known.224 In the theory of
property as things, the impersonality of the rights and duties created by
in rem exclusion rights is a positive: “Delineating the right based on the
thing makes the right impersonal in the sense that contextual
information about the owner and the duty bearers is generally not
relevant to the nature of the right (duty).”225
A far wider range of facts would generally be pertinent to a bundleof-rights inquiry. The relationship of the owner to the dutyholder—
legal and factual—would be a starting point, for specifying the legal
relations between parties is critical to a bundle-of-rights analysis. From
there, the analysis might move to the normative issue of whether the
220. Smith, Institutions, supra note 5, at 2096 (“the exclusion strategy allows the system of
resource usage to manage complexity with modularity, with much information hidden in property
modules”); Smith, Things, supra note 6, at 1703 (Property “employs information-hiding and limited
interfaces to manage complexity.”).
221. See, e.g., Smith, Self-Help, supra note 76, at 78 (the right to exclude all the world protects
the owner’s interests in a wide range of uses without anyone needing to know anything about those
uses); Henry E. Smith, Property and Property Rules, 79 N.Y.U. L. REV. 1719, 1728 (2004) [hereinafter
Smith, Property Rules] (“The right to exclude . . . protects a reservoir of uses to the owner without
officials needing to know what those might be.”); Chang & Smith, supra note 16, at 11 (“[t]he law of
trespass studiously avoids making reference to particular uses”); id. at 32 (“the basic way that property
is set up obviates the need to spell out uses”).
222. Smith, Property Rules, supra note 221, 1728 (“Property gives the right to exclude from a
‘thing’ . . . . On the dutyholder side, the message is a simple one—to ‘keep out.’”); Smith, Things, supra
note 6, at 1717 (“trespass and conversion send a simple message of ‘keep off’ and ‘don’t take’ (without
permission)”).
223. Smith, Institutions, supra note 5, at 2096 (“from the dutyholder’s perspective, property is
like a black box—a module—in that much information about uses and users is simply irrelevant to the
dutyholder’s duty of abstention”); Smith, Self-Help, supra note 76, at 78 (dutyholders need not know
anything about an owner’s intended uses or about the owner).
224. Merrill & Smith, supra note 21, at 360 (property rights confer on owners “the right to
exclude a large and indefinite class of other persons (‘the world’) from [a] thing.”).
225. Chang & Smith, supra note 16, at 33. See also Merrill & Smith, supra note 65, at 787
(“[T]he duty to respect the property of others . . . has an impersonality and generality that is qualitatively
different from duties that derive from specific promises or relationships.”); Smith, Institutions, supra
note 5, at 2100 (interactions mediated by a thing can be “relatively anonymous”).
Thus:
[I]f a car is not mine, I do not need to know who owns it, whether it is subject to a security
interest or lease, and so forth, in order to know not to take or damage it. When A sells the car to
B, many features of A and B are irrelevant to each other, and most are irrelevant to in rem duty
holders, who only need to know not to steal the car. Many details about A and B are irrelevant
to their successors in interest.
Smith, Things, supra note 6, at 1703.
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owner under the precise circumstances ought to be able to exert the
exact exclusionary right in question—an analysis that might involve, to
use earlier examples, an assessment of the quality of the interaction
among the parties, the property institution in which the interaction was
situated,226 and its capacity to promote reciprocity or domination.227 As
a next step, the analysis could move to the effects of the owner’s
assertion of exclusion rights on the nonowner and the kind of legal and
social relationship exclusion constructs, examining (again using this
Article’s earlier examples) whether the parties are symmetrically or
asymmetrically vulnerable to one another228 or whether they stand in
positions of equal (or unequal) respect and dignity.229 These questions
beg for development of information as a basis for assessing the
consequences of exercises of property rights and for making choices
about whether those consequences are morally, socially, and politically
acceptable.
Means-focused property theorists argue that it is not “wise” to engage
in “issue-by-issue balancing of values like community, autonomy,
efficiency, personhood, labor, and distributive justice.”230 These may all
be important values, but the bundle-of-rights picture “creates the
expectation that the pieces of the system will serve these values
individually and separably.”231 Means theories assert that, in contrast,
the values are served “collectively,” and the “specialization of the parts”
achieves “the goals of the whole.”232
In the end, the means-focused objections to the bundle-of-rights
analysis appear to focus on its potential inefficiency, the possibility that
each and every case or dispute over property will require an intricate and
elaborate inquiry involving multiple complex judgments of both fact and
value. For the moment, let us put to one side the question of whether
bundle-of-rights analyses truly require the kind of extraordinary, timeconsuming effort this objection seems to posit; lawyers and legal
scholars are fairly proficient at developing information quickly when
needed. The real question is whether a bundle-of-rights analysis will
226. See supra note 23 and accompanying text.
227. See supra note 9 and accompanying text.
228. See supra notes 198–200 and accompanying text.
229. See supra note 201 and accompanying text.
230. Smith, Things, supra note 6, at 1719.
231. Id.
232. Id. See also Smith, Gap, supra note 64, at 970 (“It is fallacious to expect any given decision
or rule or feature of the property system to partake of the desirable feature of the whole. . . . [P]roperty
may promote human flourishing even if not every rule or decision on the part of courts or
parties . . . directly (or best) promotes human flourishing.”). See also id. at 974 (suggesting that
property’s “infrastructure” promotes human flourishing “by making some decisions up front and across
the board”).
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constantly disrupt the ordinary operation of property, i.e., whether it will
make every property case a hard case requiring specification,
information forcing, and so forth.
The framing of this question itself assumes that the ordinary operation
of property is largely mechanical and uncomplicated. But this
assumption is questionable. Many of property’s older crystalline rules
have turned into standards; reasonableness tests are now ubiquitous in
property law.233 Thus, the rules themselves may already effectively
require exactly the sort of finely grained inquiries that bundle-of-rights
analyses would involve. As noted earlier, even those who argue that
simple rules of exclusion lie at property’s core see a role for more
complex governance strategies in some cases, and governance requires
both “precision and complexity.”234 Whether governance cases are the
exception or the rule is a matter of some debate,235 but the point is that at
least some cases already involve much of the specification that the
bundle-of-rights analysis entails.236
Finally, even if most property cases, most of the time, were indeed
simple and uncomplicated, it is also true that at times previouslyuncomplicated sets of rules—such as those involving landlord and
tenant—come under stress. A comprehensive theory of legal change is
well beyond the scope of this Article, but one can predict at least some
factors that force change. When, for example, development puts
pressure on once-plentiful resources, “anything-goes” approaches to
land, reflected in rules emphasizing owners’ freedom, will work less
well. In such circumstances, the system is pushed to redefine owners’
rights.237 Ordinary rules of property work tolerably well in ordinary
times; it is changed circumstances that require rethinking those rules.
Because circumstances do not change constantly or dramatically,
however, we are unlikely to want or need to rethink whole rule sets
frequently.
233. Joseph William Singer, The Rule of Reason in Property Law, 46 U.C. DAVIS L. REV. 1375
(2013).
234. Merrill & Smith, supra note 65, at 797.
235. See supra note 165.
236. This point might be put another way. It is surely true that from what might be called an
“external” point of view—the view of dutyholders, for example—standardization minimizes costs.
However, from what might be called an “internal” perspective, i.e., when we come to specify what each
in rem package of rights consists of, we find there is considerable variation among the features of
existing property rights. Merrill and Smith have themselves explored some of that variation. See
Merrill & Smith, supra note 65, at 809–49. See also Gregory S. Alexander, The Complex Core of
Property, 94 CORNELL L. REV. 1063, 1070 (2009) (arguing that not all property rights have exclusion at
their core).
237. Carol M. Rose, Property Rights, Regulatory Regimes and the New Takings Jurisprudence—
An Evolutionary Approach, 57 TENN . L. R EV . 577, 591–92 (1990).
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Property constructs complicated legal and social relationships. These
relationships reflect difficult normative choices. Analyzing property as
a bundle of rights sharpens understanding of those relationships and
those choices. In addition, it produces information essential to
evaluating their quality. The granular inquiries encouraged by a bundleof-rights analysis need not preclude attention to structural or
architectural features of the system.
Yet by the same token,
consideration of the mechanics of the property system should not
preclude consideration of whether, in fact, the bundles being produced
are morally, socially, or politically acceptable. These are all important
questions. The bundle-of-rights conceptualization can, and should,
focus on both means and ends.
IV. THE BUNDLE-OF-RIGHTS IN CONTEXT
This Part examines two controversial information-based assets:
electronic health records and commercial databases. Whether these
assets should be treated as property is the subject of broad debates.
Although these assets are in one sense unusual, they may be typical of
the kinds of goods that will raise property problems in the future, for
they fit awkwardly into existing legal categories such as property,
privacy, and intellectual property. This Part argues that property rights
in these assets, if they are property at all, will look more like bundled
rights than like exclusionary powers over things. Further, analyzing
these goods through a bundle-of-rights lens will illuminate some of the
hard choices these assets pose about who should obtain value from
assets that are created by multiple actors.
A. Electronic Health Records (EHRs)
An EHR comprises “electronic documentation of providers’ notes,
electronic viewing of laboratory and radiological results, e-prescribing,
and an interoperable connection via a health information exchange with
all other providers and hospitals in a community.”238 The information
238. Cong. Budget Off., Evidence on the Costs and Benefits of Health Information
Technology, Pub. No. 2976, at 5 (2008), available at http://www.cbo.gov/sites/
default/files/cbofiles/ftpdocs/91xx/doc9168/05-20-healthit.pdf. The Health Information Management
Systems Society defines an EHR as follows:
The Electronic Health Record (EHR) is a longitudinal electronic record of patient health
information generated by one or more encounters in any care delivery setting. Included in this
information are patient demographics, progress notes, problems, medications, vital signs, past
medical history, immunizations, laboratory data, and radiology reports.
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assembled in an EHR is of considerable value to medical service
providers, who can use it to improve care, and to patients, who stand to
benefit from those improvements.239 EHRs are also valuable to other
entities, such as insurance companies, potential or actual employers of
the patient in question, and marketing firms seeking to sell medical
equipment or drugs.240 Unfortunately, the very same network effects
that enhance EHRs’ utility to patients heighten the danger of
unauthorized disclosure because more information could be released and
distributed to more people.241 Although the Health Insurance Portability
and Accountability Act of 1996 (HIPPA)242 addresses some issues
related to the security of the information in EHRs, it is widely agreed
that the statute has many deficiencies that leave patient information
vulnerable to unwanted disclosure.243 Thus, some scholars have
suggested that, for purposes of control, patients should have a property
right to the information in the EHRs pertaining to them.244
Proposals for propertizing health information vary widely on a
number of dimensions, from cloud-based records that would grant
patients primary control245 to integrated networks created and accessed
primarily by physicians and hospitals.246 Despite differences in these
proposals’ detail, several common features appear. One is a concern
about the alienability of health information. For ordinary property, such
Electronic
Health
Record,
Health
Info.
&
Mgmt.
Sys.
Soc’y
(2006),
http://www.himss.org/ASP/topics_ehr.asp.
239. For a summary of the benefits of EHRs to the medical community and patients, see Jane B.
Baron, Property as Control: The Case of Information, 18 MICH. TELECOMM. & TECH. L. REV. 367,
374–75 (2012).
240. Sharona Hoffman & Andy Podgurski, In Sickness, Health, and Cyberspace: Protecting the
Security of Electronic Private Health Information, 48 B.C. L. REV. 331, 334–35 (2007) (describing the
range of entities that would find health information useful).
241. See, e.g., Mark A. Hall, Property, Privacy, and the Pursuit of Interconnected Electronic
Medical Records, 95 IOWA L. REV. 631 (2010) (describing network effects); Nicolas P. Terry, What’s
Wrong with Health Privacy?, 5 J. HEALTH & BIOMEDICAL L. 1, 23 (2009) (describing the potential for
abuse of patient data in modern longitudinal systems).
242. Pub. L. No. 104-191, 110 Stat. 1936 (codified as amended in scattered sections of 18, 26, 29,
42 U.S.C.).
243. For a summary of the arguments about HIPPA’s deficiencies, see Baron, supra note 239, at
377.
244. See, e.g., Hall, supra note 241 (suggesting that patients be allowed to license rights to
medical information for purposes of stimulating market development of EHRs); Edward J. Janger,
Privacy Property, Information Costs, and the Anticommons, 54 HASTINGS L.J. 899 (2003) (exploring
costs and benefits of a possible regime of “muddy property rules” for personal information); Paul M.
Schwartz, Property, Privacy, and Personal Data, 117 HARV. L. REV. 2056 (2004) (proposing a fiveelement model for propertized personal information).
245. Google proposed such a system, though it ultimately abandoned the project. See Leena Rao,
Google Shuts Down Medical Records and Health Data Platform, TECHCRUNCH (June 24, 2011),
http://techcrunch.com/2011/06/24/google-shuts-down-medical-records-and-health-data-platform/.
246. For descriptions, see Hall, supra note 241.
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as real estate or laptop computers, alienability is almost always seen as a
plus, allowing resources to reach the persons who value them most
But the alienability of medical information is more
highly.247
problematic; patients may give or sell health information to an initial
acquirer without understanding the many subsequent uses to which the
initial buyer may put that information—uses of which the patient may
disapprove.248 Desire to limit these risks has given rise to proposals to
adjust the alienability of rights in health information. Paul Schwartz, for
example, has offered a “hybrid alienability” model of property rights in
personal information that would “permit the transfer for an initial
category of use in personal data, but only if the customer is granted an
opportunity to block further transfer or use by unaffected entities.”249
Proposals such as Schwartz’s contemplate a property right that would
not accord to a single, identifiable owner a set of consolidated rights that
grant near-absolute control, nor operate in rem, nor be highly
standardized.250 EHRs involve multiple potential owners—reflecting
inputs from patients, physicians, laboratories, insurance companies, and
so forth. The rights of these parties between and among each other are
likely to vary; the patient’s right of access to information in the EHR
may, for instance, differ from that of the patient’s insurance company.
The bundle-of-rights metaphor seems suited to the complexity and
asymmetry of the various parties’ interests in the information in EHRs.
It captures the fact that ownership of information is divided. It also
helps show that the rights, powers, privileges, etc. of any one party with
respect to another will not necessarily be the same as another’s with
respect to that same other party.
Analyzing property interests in EHRs as a bundle of rights facilitates
the specification of who the different owners are, as well as variations in
their powers with respect to health information. That specification, in
turn, will reveal differences and perhaps dispiriting imbalances.
Revealing these imbalances enables consideration of whether patients
have enough, or too much, power to control the information in their
health records. That judgment requires attention to how each party’s
exercise of control affects others. Perhaps, for example, physicians’
attempts to limit patients’ access to certain information in their charts—
information that doctors deem potentially dangerous to patients’
emotional or psychological well-being251—constructs a relationship of
247. See SINGER, supra note 155, at 278–80.
248. Jessica Litman, Information Privacy/Information Property, 52 STAN. L. REV. 1283, 1299–
1300 (2000); Pamela Samuelson, Privacy as Intellectual Property, 52 STAN. L. REV. 1125, 1138 (2000).
249. Schwartz, supra note 244, at 2098.
250. See Baron, supra note 239, at 383.
251. Many states have statutes speaking to this issue. See, e.g., ARK. CODE ANN. § 16-46-106;
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paternalist power that bears rethinking.
Bundle-of-rights analysis requires the development of a wide variety
of facts about how the flow of information in EHRs affects the multiple
parties to the medical record. Those facts will not obviate the need to
make judgments about which parties should exercise full or partial
control over the record. Instead, the revealed complexity of the divided
interests in EHRs might suggest that such records should not be
governed by a “property” frame at all.252 Perhaps “privacy” might better
capture what is at stake. But perhaps not. The information produced by
the bundle-of-rights analysis focuses attention on the many contributions
that are required for an EHR to exist at all. Once these different
contributions become evident, legislatures or courts might decide that
property rights are exactly the right way to reward different parties.
Bundle-of-rights analysis can facilitate this decision.
B. Commercial Databases
Commercial entities routinely mine and collect the information
available about individuals in cyberspace and assemble that information
into databases. That information, often collected secretly, is sold, inter
alia, to advertisers who can use the information to more directly target
messages to their customers or to other entities that can profit from the
information.253 Because the information in databases can be quite
sensitive, and because its disclosure can be quite harmful (think of
negative credit scores), the ownership of the data in databases can be
important.254 Because the effort to collect and compile information can
be substantial and costly, the question of the ownership of the
compilations themselves is also of notable interest.255
As with EHRs, proposals for propertizing databases or of the
information therein are problematic. The United States Supreme Court
has held that facts and compilations of facts lack originality and,
N.Y. PUB. HEALTH LAW § 18(2).
252. I do not mean to suggest that where a bundle analysis reveals complexity, property interests
cannot be recognized. The point is only that the granular analysis that the bundle conceptualization
produces may lead to the identification of facts or values better encompassed by other areas of law.
253. Vivid accounts of the general process of data collection can be found in DANIEL SOLOVE,
THE DIGITAL PERSON 13–26 (2004) and Jerry Kang, Information Privacy in Cyberspace Transactions,
50 STAN. L. REV. 1193, 1198–99 (1998).
254. See Schwartz, supra note 244, at 2057 (“[A] strong conception of personal data as a
commodity is emerging in the United States, and individual Americans are already participating in the
commodification of their personal data.”).
255. See J.H. Reichman & Pamela Samuelson, Intellectual Property Rights in Data?, 50 VAND. L.
REV. 51 (1997) (tracing legal protections for noncopyrightable databases and examining alternative
regimes to protect investors in information goods).
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therefore, are not copyrightable.256 Since databases require no invention
and are not business secrets, the other two major categories of
intellectual property law—patents and trade secrets—also seem
inapposite. While the European Union has enacted a statute that
comprehensively regulates databases,257 the US Congress has
consistently declined to pass legislation that would protect databases as
a new or sui generis form of intellectual property.258
Without attempting full discussion of the law of databases, it is
possible to identify some common features relevant to databases’
potential propertization. For one thing, multiple parties contribute to the
creation of a database asset. Consider, for example, data aggregators
who create detailed profiles of individuals by following individuals’
traffic on the Internet, use of ATMs, EZ Pass tolls, and the like.259 The
individual being “dataveilled” produces the pieces of information of
interest (mouse clicks, bank withdrawals, credit card purchases), but the
data collector, who aggregates the data, produces a profile that pulls
those pieces together. It is the combined contributions of the individual
and the aggregator that make the information a commodifiable asset, but
the parties do not work in concert. Indeed, as privacy advocates note, in
many cases the individual is unaware that his or her information is being
collected at all.260
In this situation, we could give to one or the other party the sole right
to deal with the compiled information; such a right would look like the
classic consolidated right to exclude. Some scholars argue that the
current legal regime already gives aggregators this power to exclusively
control the commodity value of collected information.261 But it is
possible to imagine a system that would recognize the independent
contributions of the parties by giving both individuals and aggregators
rights with respect to compilations of personal information. In other
words, we might give individuals some “sticks” in the property
bundle—perhaps the right to be notified of data collection, the power to
256. Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991).
257. Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the
legal protection of databases, OJ L77/20, 27 March 1996. For a description of the Directive and
comparisons to other regimes of legal protection, see ESTELLE DERCLAYE, THE LEGAL PROTECTION OF
DATABASES: A COMPARATIVE ANALYSIS (2008), and MARK J. DAVISON, THE LEGAL PROTECTION OF
DATABASES (2003).
258. See Daniel J. Gervais, The Protection of Databases, 82 CHI.-KENT L. REV. 1109, 1139–40
(2007).
259. See SOLOVE, supra note 253, at 13–26.
260. Id.
261. Julie E. Cohen, Examined Lives: Informational Privacy and the Subject as Object, 52 STAN.
L. REV. 1373, 1391 (2000) (“Thus far, whether deliberately or by oversight, we have constructed data
processing systems that do not involve the individual in decision-making about the uses of data
collected by the system.”).
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withhold information, or the right to be paid a fee for the use of that
information—while giving other “sticks” to the data aggregator.
The bundle-of-rights metaphor is helpful in this context precisely
because it heightens attention to the possibility of divided, but shared,
rights. It invites specification of exactly how those rights should be
shared, a question that will require a variety of judgments about, inter
alia, the quality of the relationship between individuals and those who
collect data about them, as well as the circumstances under, and the
degree to which, it is appropriate to commodify personal information at
all.262 Lifting the secrecy relating to data collection and forcing facts
forward will help inform these judgments. Perhaps when all the facts
are in, the conclusion will be that it is not feasible to give individuals
effective rights in the personal information collected about them. If so,
then they should not be given any property “sticks” at all and, as now,
aggregators will retain exclusive control rights. Bundle-of-rights
analysis does not mandate that, in every instance, rights should be
shared, only that the possibility of division and sharing be considered.
*
*
*
Neither of the assets examined in this Part necessarily qualifies as
“property,” if what we mean by property is in rem exclusion rights
consolidated in a single owner and good against the world. The
examples raise the question whether property rights necessarily have
those qualities under all circumstances. In both of the examined assets,
it is possible to imagine giving individuals some, but not unlimited,
powers over their health information and their data. Bundle-of-rights
analysis can help highlight these divisions and limitations and, in so
doing, force more clarity about what it means to assign the label
“property” to an asset or to the control of that asset.
It is possible to imagine many other assets similar to the two
examined here that also involve unconsolidated, divided, and shared
rights. One example involves the rights of celebrities to their
“personae.”263 Another involves the rights of individuals to patented
cell lines and other products derived from the individuals’ tissues, a
problem famously discussed in Moore v. Regents of the University of
California.264 The work of the bundle-of-rights analysis in these cases,
in which multiple parties contribute to the creation of the asset, is to help
us work out the limits of each party’s powers by specifying more clearly
262. On the commodification of personal information, see Baron, supra note 239, at 390–409.
263. On the right of publicity as a property right, see J. THOMAS MCCARTHY, 1 THE RIGHTS OF
PUBLICITY AND PRIVACY 12 (2d ed. 2011).
264. Moore v. Regents of the Univ. of Cal., 793 P.2d 479 (Cal. 1990).
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the variety of actors who might have or be affected by the powers in
question, the relationships those powers might foster or construct, and
the alternative possibilities available. Where we are unsatisfied with our
ability to construct workable limits, we may decide that a property frame
is inappropriate. Bundle-of-rights analysis does not commit us either to
propertization or nonpropertization of these difficult-to-categorize
assets. It commits us only to clarity about the choices that must be
made.
V. CONCLUSION
For a very long time, property has been conceptualized as a bundle of
rights. This Article argues that the current revolt against this
conceptualization rests on contestable stories of the origin, development,
and political valence of the idea that property is a bundle of rights.
Thinking about property as a bundle of rights, this Article argues, can be
helpful across a variety of dimensions: forcing specification of
interconnected rights, powers, privileges, and liabilities; highlighting the
choices implicit in any given configuration of property rights; focusing
on the relationships property entails; and forcing factual information
forward.
Recognizing the utility of the bundle-of-rights conceptualization does
not preclude thinking about property as a “law of things,” especially if
“things” are defined broadly—to include intangibles, for example, as
well as tangibles. Sometimes it is helpful—and perhaps intuitive—to
focus on the “thingness” of property.265 We experience property in
terms of things in some instances. But there are aspects of property
ownership that the “thing” metaphor does not adequately describe: the
way in which interests can be divided and shared, and the way in which
property constructs relationships between persons. The bundle-of-rights
metaphor has been useful in capturing these aspects of property, and is
likely to remain so, especially with respect to emerging forms of assets
that are not easily assimilated into the model of single-person ownership
protected by in rem exclusion rights.
It is worth considering, especially in light of the development of these
new asset forms, whether property will remain a viable legal category,
whether it will “disintegrate,” as Grey suggested, or whether it will be
swallowed up by the law of privacy or of intellectual property. But the
viability of property will not be determined by the metaphors in which
we describe it. We have nothing to fear—and much to gain—from the
265. Heller, supra note 20, at 1193. See also Michael J. Madison, Law as Design: Objects,
Concepts, and Visual Things, 56 CASE W. RES. L. REV. 381 (2005) (arguing that, although human
relationships matter to the design of law, things matter also).
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bundle-of-rights conceptualization.
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