|Abstract||Working within a Lockean tradition, William Blackstone (1765) characterized property as the ‘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.’ In practice, though, property rights in the Anglo-American tradition have always been hedged with restrictions. The dominion to which Blackstone refers is limited by easements, covenants, nuisance laws, zoning laws, regulatory statutes, and more generally by the public interest. Wesley Hohfeld (1913) distinguished between rights and liberties. I am at liberty to use P just in case my using P is not prohibited. I have a right to P just in case my using P is not prohibited, plus I have the additional liberty of being able to prohibit others from using P. That is to say, the difference between a mere liberty and a full-blooded property right is that with the latter, there is an owner who holds a right to exclude other would-be users. Today, the term ‘property rights’ generally is understood to refer to a bundle of rights that could include rights to sell, lend, bequeath, use as collateral, or even destroy. (John Lewis generally is regarded as the first person to use the ‘bundle of sticks’ metaphor, in 1888.) The fact remains, though, that at the heart of any property right is a right to say no: a right to exclude non-owners. In other words, a right to exclude is not just one stick in a bundle. Rather, property is a tree. Other sticks are branches; the right to exclude is the trunk. This is not merely a stipulation, because unless an owner has a right to say no, the other sticks are reduced to mere liberties rather than genuine rights. Thus, I could be the owner of a..|
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