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Unpublished Paper
Exclusion as Duty
ExpressO (2012)
  • Peter M. Gerhart, Case Western Reserve University
In this article, I present a new account of the idea of ownership and an owner’s right to exclude. By identifying foundational values that animate property law, I identify the boundary between an owner’s right to exclude and a nonowner’s right of access. Under this view, the essence of property is the owner’s right to make decisions about the use of the property, but that right is circumscribed by the owner’s duty –under carefully defined circumstances – to take into account the well-being of nonowners when making decisions. By situating the right to exclude in the context of an owner’s right to make decisions about a resource, and by showing that sometimes an owner is required to take into account the well-being of others when making decisions, I see the right to exclude as the application of the no-duty values that underlie private law, while limitations on the right to exclude reflect an owner’s obligations to others. This account fills important gaps in property theory by bridging the conceptual gap between exclusion and access and by addressing several conceptual issues that haunt property theory: the distinction between exclusion rights and social obligation norms, the distinction between a bundle of sticks approach and an essentialist approach, and the distinction between essentialism grounded in the right to exclude and essentialism based on an owner’s exclusive decisions.
  • exclusion,
  • obligations,
  • social obligations,
  • other-regarding behavior
Publication Date
March 10, 2012
Citation Information
Peter M. Gerhart. "Exclusion as Duty" ExpressO (2012)
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