Private Law Theory

ABSTRACT
At one time ascendant, the bundle-of-rights metaphor for property is now highly contested. This chapter focuses on one powerful theme in critiques of the bundle-of-rights view: the possibility that the rights or sticks in the bundle are or can be organized haphazardly, arbitrarily – in any old way. I argue that radical contingency is a straw target, but that the controversy over the bundle of rights metaphor reveals a fault line in property theory around the perils and prospects of change. By emphasizing the plasticity of property’s sticks, the bundle view invites consideration of the social relations property creates and of how current configurations might be altered. For theorists who focus on how property works in the present – via architecture, modularity, in rem rights and boundaries – this assessment is potentially dangerous because it leads to the possibility that, in the name of reform, we will tinker with the pieces of property in a way that impedes, rather than furthers, property’s ability to manage complexity. The bias of this concern is toward the status quo. But influential new critiques of American property law describe the creation of the boundaries on which our current system relies, and this history is discomfiting at best. Like the bundle view, this history invites explicit consideration of exactly whom the property system works for. Extant property boundaries may be useful for today’s owners, but they do not do much for those who were dispossessed or for those who – via redlining, foreclosure, racially-restrictive covenants, and other such practices – were deprived of the ability to acquire property of their own. Other recent scholarship highlights the way in which forces external to a given property parcel – such as zoning – contribute to or detract from that parcel’s value and how changes in those forces might create a very different property regime than currently exists. These strands of scholarship invite consideration of what property might be, including the possibility that it could be more equitable than it is today. The tension between continuity and change in American property law is not going away any time soon. The question of whether the extant property regime is useful or fair or just will not be resolved by a metaphor. It can only be resolved by substantive debate.

Baron, Jane B, Radical Contingency and the Bundle of Rights in Research Handbook on Property Law and Theory (Chris Bevan ed, 2023); Temple University Legal Studies Research Paper No 2023-01.