The ‘right to exclude’ has for long been taken to be a defining feature of property as a social and political institution. Yet, very little is known about the exact contours of this right — How does it operate? Is it absolute? Are courts obligated to give effect to it whenever a property owner asks them to? In its short (10-page) unanimous decision last term, in eBay, Inc. v. MercExchange, LLP, the Supreme Court tried to shed light on what this right means, specifically in the context of patents. Yet what it hinted at is likely to have enormous significance for the way in which the law understands the ‘right to exclude’, as it relates to all of property law.
In a paper recently posted to SSRN, Shyam Balganesh, Bigelow Fellow & Lecturer in Law, argues that a close reading of the Supreme Court’s opinion in eBay tells us what the right to exclude has really meant all along — as little more than a duty of non-interference that non-owners are placed under. Understanding property in this way allows for a more holistic analysis of the institution, one that accurately represents its functioning as an everyday matter.
The abstract is below and the full paper is here.
Demystifying the Right to Exclude: Of Property, Inviolability, and Automatic Injunctions
University of Chicago Law School
Harvard Journal of Law and Public Policy, Vol. 31, 2008
U of Chicago, Public Law Working Paper No. 182
The right to exclude has for long been considered a central component of property. In focusing on the element of exclusion, courts and scholars have paid little attention to what it means for an owner to have a 'right' to exclude and the forms in which this right might manifest itself in actual property practice. For some time now, the right to exclude has come to be understood as nothing but an entitlement to injunctive relief - that whenever an owner successfully establishes title and an interference with the same, an injunction will automatically follow. This view attributes to the right a distinctively consequentialist meaning, calling into question the salience of property outside of its enforcement context. Yet, in its recent decision in eBay, Inc. v. MercExchange, LLC, the Supreme Court rejected this interpretation, declaring unequivocally that the right to exclude did not mean a right to an injunction. This Article argues that eBay's negative declaration serves to shed light on what the right has really meant all along - as the correlative of a duty imposed on non-owners (i.e., the world at large) to keep away from an ownable resource. This duty (of exclusion) in turn derives from the norm of inviolability, a defining feature of social existence and accounts for the primacy of the right to exclude in property discourses. This understanding is at once both non-consequentialist and of deep functional relevance to the institution of property.