The New Essentialism in Property

Abstract

Is property a flexible bundle of rights or a stable legal category? Since the late 1990s, prominent scholars have rejected the conventional wisdom that the bundle metaphor defines property. These “new essentialists” have sought to reclaim property as a distinct legal category with a definable core. Their academic project is now highly salient because the American Law Institute is engaged in a project of restating property law, directed by a leading new essentialist. This article takes stock of the new essentialists’ efforts to offer a new understanding of property. It distills the core elements of the new essentialist definition of property. Most importantly, it argues that this definition is highly malleable and not as distinct from the bundle picture as the new essentialists and their critics suppose.