Brooklyn Law Review


Lynda L. Butler


The institution of property serves an important management function for society, guiding the use of resources among its members by delegating to the owner the power to decde how and when to use a resource. Under the dominant American approach, this delegation involves recognizing broad decision-making powers in the individual property owner. Grounded in an exclusion-based view of property, the dominant approach recognizes each property owner as a gatekeeper, with important in rem rights that bind all others—even those not in a direct relationship with the owner. Over time, courts and other lawmakers have developed doctrines and rules of law to guide and sometimes constrain the exercise of gatekeeping powers. Developed through democratic institutions, these principles and rules provide an important counterweight to the self-interests driving the decisions of individual right holders. The exclusion-based approach to the management function works well much of the time. It is a low-cost approach that relies on the incentives of the marketplace to reward the productive gatekeeper or replace the wasteful one. With a simple delegation, ownership rights and powers are placed in the gatekeeper and protected from encroachment or interference through the power to exclude. In certain more complex settings, however, property’s owner-centric exclusion strategy poses serious problems by ignoring the true scales and relational dimensions of property use. These problems include resource hoarding, excessive fragmentation, overcapitalization, and serious, sometimes irreversible degradation of the environment. It is time to rethink the management function of property to recognize that management occurs both through individual and collective action. In a democratic society, neither is sufficient by itself. Both are necessary to promote individual freedoms, social cohesion, and the integrity of political, economic, and natural systems.