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Merrill, Thomas W. --- "Private Property and Public Rights" [2011] ELECD 148; in Ayotte, Kenneth; Smith, E. Henry (eds), "Research Handbook on the Economics of Property Law" (Edward Elgar Publishing, 2011)

Book Title: Research Handbook on the Economics of Property Law

Editor(s): Ayotte, Kenneth; Smith, E. Henry

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781847209795

Section: Chapter 4

Section Title: Private Property and Public Rights

Author(s): Merrill, Thomas W.

Number of pages: 29

Extract:

4 Private property and public rights
Thomas W. Merrill


An essential element of individual property is the legal right to exclude others from enjoying it.
If the property is private, the right of exclusion may be absolute; if the property is affected with
a public interest, the right of exclusion is qualified. ­ Louis D. Brandeis1

The public/private distinction has long played a central role in debates about the insti-
tution of property. Lawyers schooled in the common law and economists who write
about property tend to accept the validity of the distinction between private property
and public rights. They assume that most scarce resources are owned by someone as
property, and the owner has broad discretionary authority over the use and disposition
of the resource. This discretionary `gatekeeper' power is qualified in exceptional circum-
stances by considerations of public rights. But individuated control by owners remains
the norm. This conventional perspective is captured in the statement of Justice Brandeis
quoted above.
The Legal Realist movement that began in the 1920s sought to debunk the public/
private distinction, along with other fundamental categories in legal thought.2 The
Realists argued that all legal rights depend on collective recognition and enforcement,
so all rights ­ including property rights ­ are effectively public. To single out some legal
entitlements as `private,' the Realists argued, is to engage in empty rhetoric or beg the
question about the appropriate balance of authority between the individual and the
state. The Realists and their successors also thought the ...