Exclusion and Inclusion in Property

Hanoch Dagan

in Property

Published in print February 2011 | ISBN: 9780199737864
Published online May 2011 | e-ISBN: 9780199894994 | DOI:
Exclusion and Inclusion in Property

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This chapter addresses the substance of property. Section I presents some recent provocative accounts of the right to exclude as the core of property. Section II offers a conceptual critique of this admittedly attractive but ultimately misleading trend of exclusion-centrism in property. Section III turns to the normative dimension, emphasizing the limits of the morality of exclusion and explaining why inclusion or entry is an internal feature of some property institutions. Finally, Section IV sketches some implications and applications of the status of nonowners' right to entry as an intrinsic component of the right to property in specific types of cases and deals with three examples: the law of public accommodations, with its rather early common law origins of vindicating such a right to entry; the copyright doctrine of fair use, which is unfortunately under attack in recent times; and the law of fair housing, which currently codifies the right to entry in what may well be its most important manifestation in contemporary society.

Keywords: property law; right to exclude; property institutions; nonowners' right to entry; law of public accommodations; copyright doctrine of fair use; law of fair housing

Chapter.  9275 words. 

Subjects: Constitutional and Administrative Law

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