Daniel Kelly, ‘The Right To Include’

Recent scholarship has created renewed interest in the “right to exclude”. Many contend that, because owners have a right to exclude, private property has a tendency to promote individualism and exclusion. But, as I will argue, property can promote sociability and inclusion by providing owners with various ways of including others. Owners can assert their “right to include” by waiving exclusion rights, dividing existing rights by contracts or property forms, and creating new co-ownership arrangements. Inclusion is socially beneficial insofar as it enables sharing and exchange, facilitates financing and risk-spreading, and promotes specialization. Yet inclusion may entail costs, including coordination difficulties, strategic behavior, and conflicts over use. To mitigate such costs, the law authorizes not only informal and contractual inclusion but also inclusion through various forms of property like easements, leases, and trusts. By providing owners with a range of options by which to include others, these forms help to ensure that an owner’s private incentive to include converges with the socially optimal level of inclusion. Each form not only binds third parties but also provides owners and those they may include with a unique mixture of anti-opportunism devices, such as mandatory rules, fiduciary duties, and supracompensatory remedies. Understanding how the law promotes the social use of property provides insights into debates over the property/contract interface, numerus clausus, and the right to exclude itself.

Daniel B Kelly, The Right To Include. Emory Law Journal, Vol 63:857 (2014).

First posted 2014-04-29 12:25:02

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