Information Asymmetries and the Rights to Exclude

The American law generally regards the “bundle of rights” as property’s dominant metaphor. On this conception of property, ownership empowers an individual to control a particular resource in any number of ways. For example, he may use it, transfer it, exclude others from it, divide it, and perhaps even destroy it. The various rights in the bundle, however, are not equal in terms of importance. To the contrary, American courts and commentators have deemed the “right to exclude” foremost among the property rights, with the Supreme Court characterizing it as the “hallmark of a protected property interest” and leading property scholars describing the right as the core, or the essential element, of ownership. Yet for all its centrality, in the minds of courts and legal scholars, there is substantial conceptual confusion about the nature of the “right to exclude.” This confusion manifests itself in the form of inconsistent judicial opinions and unsatisfying commentary on those opinions.