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Exclusion property, Governance property


Property Law and Real Estate


Exclusion theorists of property think that the concept of property properly concerns only the relations between owners and nonowners — that is, the external relationships of owners, or what we might call the “external life” of property. From this perspective, the internal relationships among property stakeholders — the “internal life” of property — are irrelevant from a conceptual point of view. I argue that this is a distorted and misleading view of property. To reveal this misconception, I distinguish between two types of property, which I call exclusion property and governance property. Governance property, not exclusion property, is the dominant mode of ownership today. the emergence of GP as the predominant form of property means that the right to exclude can no longer be considered the core of private ownership. The right to exclude, although important, is not central to GP; rather, internal governance mechanisms are essential.


This Article was presented at the Symposium on New Directions in Property Theory, jointly sponsored by the University of Pennsylvania Law Review and the University of Pennsylvania Law School on November 6, 2011.

Publication Citation

Published in: University of Pennsylvania Law Review, vol. 160, no. 7 (June 2012).