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private entities), common property (resources collectively controlled by some close-knit group), and public property (property owned by governments and/or the public).

Property as an institution embraces these many forms, and different societies have various mixtures of them. The property systems in the United States and other countries with market-based economies rely heavily on private property, but with important components of common and public property. Socialist countries rely more heavily on public property, but they too typically permit private property in personal goods, like clothing and books. The relative advantages of different mixtures of private, common, and public property is an important question, over which academic and political conflict has been waged for a long time.

• Exclusion and the Bundle of Rights

The great diversity in the types of things that can be property as well as in types of owners gives rise to the question whether there is any essential feature or element that distinguishes property from other types of claims or rights. One school of thought holds that there is an essential core to the nature of property: the right to exclude others from some thing. This view is captured by William Blackstone’s definition of 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 Here a designated thing—Blackacre, a car, an invention, or a bank account—forms the focus of the right. To describe someone as an owner of some thing is to say that such person has the right to exclude others’ use of the thing and,

2.William Blackstone, 2 Commentaries *2 (1766). Blackstone was probably engaging in some self-conscious hyperbole here; and after this definition, Blackstone went on to discuss the various exceptions and modifications to the right to exclude.

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at least by implication, has the right to use the thing unless some other restriction—zoning law or criminal law, for example— prevents the owner from taking the action in question. This focus on exclusion does not mean that ownership cannot be supplemented with additional rights and privileges—for example, the owner may have an easement to use an adjacent parcel for driveway access. But on the “Blackstonian” view, the right to exclude others from some definite thing is central to what the owner owns and forms the core of the concept of property itself.3

Another school of thought denies the existence of any essential core to the concept of property. Rather, property is just a word denoting a bundle of rights—or more metaphorically, a bundle of sticks—in which each individual stick (whether it be a right or privilege) can be added or removed without necessarily changing the characterization of the bundle as “property.” No particular stick in the bundle—including the right to exclude—is privileged, and the measure of which bundles are preferred to which others is simply a matter of social policy. Thus, if A owns Blackacre, but society finds that Blackacre would be an undesirable location for a factory, the government may remove the factory-building stick from the bundle of rights. Nonetheless, it is still possible to describe the remaining sticks as “property.” The Legal Realist movement that started in the 1920s advanced this alternative view in order to debunk the notion of property as a natural right protected by the Constitution against fundamental reform.4 The bundle of rights view achieved the status of conventional wisdom in academic circles in the course of the twentieth century, and despite increasing questioning from various quarters, it retains a great deal of influence today.

3.See, e.g., J. E. Penner, The Idea of Property in Law (1997); Thomas W. Merrill,

Property and the Right to Exclude, 77 Neb. L. Rev. 730 (1998).

4.See Th omas C. Grey, The Disintegration of Property, in Property: Nomos XXII 69 (J. Roland Pennock & John W. Chapman eds., 1980).

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Many views in between these poles—traditional Blackstonian exclusion and the Legal Realist bundle of rights—are possible, and to a large extent the differences are a matter of emphasis. Thus, a variant of the traditional view is that a trinity of rights—to exclude, to use, and to transfer—defines the core of property.5 Use and transfer are certainly important to property. But one can point to entitlements that are conventionally thought of as property without the right to transfer. For example, a doctor can own a medical license, with procedural protection in this “property,” but transfer of such a license would be illegal. In other cases, transfer is allowed by gift but not by sale (organs for transplant purpose)—or permitted by sale but not gift (assets of an insolvent company on the eve of bankruptcy). Nevertheless, one can say that as the rights to use and transfer are removed, we move away from the prototypical property right.

More generally, the difference between the traditional and the bundle of rights views may be largely a matter of focus. The proponents of the traditional view must acknowledge that modern law imposes many constraints on the right to exclude. Some of these limits are conventionally thought of as belonging to the law of property itself and represent a shift from an exclusion strategy for managing resources to a governance strategy that delineates rules of proper resource use.6 That is to say, the law shifts from giving the owner dictatorial control over who and what to exclude (or include), and instead seeks to prescribe rules about permissible and impermissible uses that constrain all relevantly situated owners. We will see many examples of exclusion shading off into governance. Perhaps the most paradigmatic is the shift from trespass, which governs large intrusions on land and has an exclusionary character,

5.See, e.g., Richard A. Epstein, Takings: Private Property and the Power of Eminent Domain 59 (1985).

6.Henry E. Smith, Exclusion Versus Governance: Two Strategies for Delineating Property Rights, 31 J. Legal Stud. S453 (2002).

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to nuisance, which governs small intrusions and often engages in interest-balancing to delineate proper use. Likewise antidiscrimination laws are among the governance-style limits on the owner’s right to exclude. On the exclusion-based view, however, the right of the owner to act as the gatekeeper over some thing—deciding who and what to exclude and include—is still the starting point for understanding property.

For their part, the proponents of the bundle of rights view must account for the fact that property rights are not typically broken down into long lists of discrete rights and privileges. Instead, the rights of property owners are “lumpy.” Ownership of Blackacre gives the owner an expectation of being able to use Blackacre for a wide range of uses without the need to explicitly spell out what those uses are. Drawing up a master list of uses and the rights to engage in them, holding between all pairs of members of society, would be prohibitively costly.

One advantage of starting with the right to exclude as a “baseline” conception of property is that this permits us to protect a wide range of interests in use, without requiring outsiders like officials or judges to know much about those uses. If A owns Blackacre and can invoke the law of trespass to keep out unwanted intrusions, then A can use Blackacre and invest in it secure in the knowledge that such intrusions can largely be prevented. The law itself need not provide for a right to grow crops or a right to build a house or a right to park cars; instead, by delegating the “gatekeeper” right (the right to exclude) to the owner, the owner can select among these uses without the law having to spell out all potential use-rights or interests at all.

Indeed, to a large extent, we might say that the various interests in use (crop growing, house building, car parking, etc.) are reflected in privileges (or liberties) rather than rights (or claims). Property allows a wide range of uses—maybe even as yet unforeseen uses— to be protected with the simple exclusion strategy. Only selected situations of major resource conflict are likely to lead to rules governing particular uses; we will encounter covenants and easements,