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Public Law & Legal Theory


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.



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