Exclusion and Private Law Theory: A Comment on Property as the Law of Things

This Comment responds to an article by Professor Henry Smith, “Property as the Law of Things,” forthcoming in a symposium sponsored by the Harvard Law Review on “The New Private Law Theory.” In his lead Article, Professor Smith critiques what he calls the “bundle” picture of property, which he attributes to Legal Realists. Using an economic theory of information costs, Smith concludes that the bundle picture does not explain as many basic features of property as a “thing” picture. I agree with Smith that the bundle picture suffers from many important problems, and I agree with his diagnoses of many of those problems. However, I prefer to study property not with economic analysis but with normative and analytical philosophy. Smith’s and my methodological differences may be of interest to the New Private Law Theory, which encourages close study of the criteria by which interdisciplinary theories of law purport to explain or justify private law. In that spirit, this Comment gives Smith’s information-cost economic analysis a hard look, relying on prior natural law and analytical legal positivist scholarship on the structure of the private law.