Demystifying the right to exclude: Of property, inviolability, and automatic injunctions

Harvard Journal of Law and Public Policy

Volumn 31, Issue 2, 2008, Pages 593-661

  Balganesh, Shyamkrishna ^a,b,c  

^a UNIVERSITY OF CHICAGO LAW SCHOOL   (United States)

^b YALE UNIVERSITY   (United States)

^c UNIVERSITY OF OXFORD   (United Kingdom)

Author keywords

[No Author keywords available]

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EID: 46149109280     PISSN: 01934872     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (349)

1. 2 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 2 (Univ. of Chicago Press 1979) (1766) (emphasis added).
2. For elaborations on Blackstone's definition, see Carol M. Rose, Canons of Property Talk, or, Blackstone's Anxiety, 108 YALE L.J. 601 (1998).
3. For analysis of Blackstone's view of property rights, see Robert P. Burns, Blackstone's Theory of the "Absolute" Rights of Property, 54 U. CIN. L. REV. 67 (1985).
4. See Thomas W. Merrill & Henry E. Smith, What Happened to Property in Law and Economics?, 111 YALE L.J. 357, 360-64 (2001) (attributing the in rem conception of property to Blackstone and discussing the progression of property law in general).
5. See, e.g., Loretta v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435 (1982) (referring to the right to exclude as "one of the most treasured strands" of the property rights bundle); Kaiser Aetna v. United States, 444 U.S. 164, 176 (1979) (characterizing the right to exclude as "one of the most essential sticks"); id. at 179-80 (describing the right to exclude as a "universally held . . . fundamental element" of property); see also Dolan v. City of Tigard, 512 U.S. 374, 384 (1994); Nollan v. Cal. Coastal Comm'n, 483 U.S. 825, 831 (1987).
6. See RICHARD A. EPSTEIN, TAKINGS: PRIVATE PROPERTY AND THE POWER OF EMINENT DOMAIN 63 (1985) (noting that the idea of "exclusive possession" is implicit in the basic conception of property);
7. see also JAN G. LAITOS, LAW OF PROPERTY RIGHTS PROTECTION: LIMITATIONS ON GOVERNMENTAL POWERS § 5.03[A] (Supp. 2006).
8. For prominent scholarly examples, see J.W. HARRIS, PROPERTY AND JUSTICE 13 (1996) (characterizing property as an open-ended set of privileges bounded by an exclusionary trespassory right);
9. J.E. PENNER, THE IDEA OF PROPERTY IN LAW 71 (1997) (defining property in terms of exclusion);
10. Felix S. Cohen, Dialogue on Private Property, 9 RUTGERS L. REV. 357, 373-74 (1954);
11. Richard A. Epstein, Weak and Strong Conceptions of Property: An Essay in Memory of Jim Harris, in PROPERTIES OF LAW: ESSAYS IN HONOUR OF JIM HARRIS 97 (Timothy Endicott et al. eds., 2006);
12. Lior Jacob Strahilevitz, Information Asymmetries and the Rights to Exclude, 104 MICH. L. REV. 1835 (2006).
13. Thomas W. Merrill, Property and the Right to Exclude, 77 NEB. L. REV. 730, 730 (1998) (emphasis added).
14. See, e.g., Lingle v. Chevron U.S.A., Inc., 544 U.S. 528, 539 (2005) (speaking of a right to exclude in the context of a regulatory taking); United States v. Craft, 535 U.S. 274, 280, 282 (2002) (right to exclude in the context of a tax dispute); Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 667 (1999) (right to exclude in the context of the Fourteenth Amendment); see also Cleveland v. United States 531 U.S. 12, 24-25 (2000) (holding that the "right to exclude" may exist in the context of a state's domain of regulatory sovereignty); supra note 3. Interestingly, in his dissent in International News Service v. Associated Press, 248 U.S. 215 (1918), Justice Brandeis characterized the right as the "legal right to exclude others" from enjoying the resource. Id. at 250 (Brandeis, J., dissenting) (emphasis added). For an excellent overview of the Court's emphasis on the right to exclude, see David L. Callies & J. David Breemer, The Right to Exclude Others from Private Property: A Fundamental Constitutional Right, 3 WASH. U. J.L. & POL'Y 39 (2000).
15. See, e.g., Lee Anne Fennell, Exclusion's Attraction: Land Use Controls in Tieboutian Perspective, in THE TIEBOUT MODEL AT FIFTY: ESSAYS IN PUBLIC ECONOMICS IN HONOR OF WALLACE OATES 163 (William A. Fischel ed., 2006);
16. Henry E. Smith, Exclusion and Property Rules in the Law of Nuisance, 90 VA. L. REV. 965 (2004);
17. Henry E. Smith, Exclusion versus Governance: Two Strategies for Delineating Property Rights, 31 J. LEGAL STUD. S453 (2002);
18. Lior Jacob Strahilevitz, Exclusionary Amenities in Residential Communities, 92 VA. L. REV. 437 (2006); Strahilevitz, supra note 5.
19. For an overview of the literature laying out the basic tenets of the debate over rights and remedies, see Peter Birks, Rights, Wrongs, and Remedies, 20 OXFORD J. LEGAL STUD. 1 (2000);
20. Neil MacCormick, Rights, Claims and Remedies, 1 LAW & PHIL. 337 (1982). For an extension of this debate into the realm of constitutional remedies,
21. see Mark R. Brown, Weathering Constitutional Change, 2000 U. ILL. L. REV. 1091;
22. John C. Jeffries, Jr., The Right-Remedy Gap in Constitutional Law, 109 YALE L.J. 87 (1999);
23. Sam Kamin, Harmless Error and the Rights/Remedies Split, 88 VA. L. REV. 1 (2002).
24. 126 S. Ct. 1837 (2006).
25. Id. at 1840.
26. See id. at 1839-40.
27. Id. at 1842 (Kennedy, J., concurring).
28. See, e.g., Michael W. Carroll, Patent Injunctions and the Problem of Uniformity Cost, 13 MICH. TELECOMM. & TECH. L. REV. 421, 431-39 (2007);
29. Richard B. Klar, eBay Inc. v. MercExchange, L.L.C.: The Right to Exclude Under United States Patent Law and the Public Interest, 27 WHITTIER L. REV. 985, 994-95 (2006);
30. Harold C. Wegner, Injunctive Relief: A Charming Betsy Boomerang, 4 NW. J. TECH. & INTELL. PROP. 156, 166-69 (2006);
31. Gavin D. George, Note, What is Hiding in the Bushes? eBay's Effect on Holdout Behavior in Patent Thickets, 13 MICH. TELECOMM. & TECH. L. REV. 557, 566-69 (2007). But see Thomas L. Casagrande, The Reach of eBay Inc. v. MercExchange, L.L.C.: Not Just for Trolls and Patents, HOUSTON LAW., Nov./Dec. 2006, at 10, available at http://www. thehoustonlawyer.com/aa_nov06/page10.htm (hinting at the possible applicability of eBay's holding outside the realm of patent law to all grants of injunctive relief).
32. eBay, 126 S. Ct. at 1841.
33. See, e.g., Yixin H. Tang, The Future of Patent Enforcement after eBay v. MercExchange, 20 HARV. J.L. & TECH. 235, 252 (2006) ("[A]fter the eBay ruling, one must question whether it is still tenable to call patent rights 'property rights.'");
34. Peter S. Menell, The Property Rights Movement's Embrace of Intellectual Property: True Love or Doomed Relationship?, (U.C. Berkeley Public Law Research Paper Series, Paper No. 965083, 2007), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=965083.
35. Some have made just such an argument. See, e.g., Merrill, supra note 6, at 754 ("[P]roperty means the right to exclude others from valued resources, no more and no less."). Others have argued equally persuasively that the right to exclude is an "essential but insufficient component" of what property means. See, e.g., Adam Mossoff, What is Property? Putting the Pieces Back Together, 45 ARIZ. L. REV. 371, 377 (2003) (offering an "integrated theory of property," of which exclusion is an essential part).
36. One of the earliest expositions on the nature of rights in the English-speaking world was that of Jeremy Bentham. See H.L.A. Hart, Bentham on Legal Rights, in OXFORD ESSAYS IN JURISPRUDENCE (Second Series) 171-72 (A.W.B. Simpson ed., 1973). For a history of the development of rights,
37. see ALAN DERSHOWITZ, RIGHTS FROM WRONGS: A SECULAR THEORY OF THE ORIGINS OF RIGHTS (2004).
38. See also CARL WELLMAN, THE PROLIFERATION OF RIGHTS: MORAL PROGRESS OR EMPTY RHETORIC? (1999).
39. But see A.M. Honoré, Rights of Exclusion and Immunities Against Divesting, 34 TUL. L. REV. 453, 460-61 (1960) (distinguishing between real and personal rights in the context of exclusion).
40. See, e.g., Merrill, supra note 6.
41. See Strahilevitz, supra note 5, at 1836 ("[F]or all its centrality, in the minds of courts and legal scholars, there is substantial conceptual confusion about the nature of the 'right to exclude.'").
42. See, e.g., Merrill, supra note 6, at 730-31.
43. See R.B. Grantham & C.E.F. Rickett, Property Rights as a Legally Significant Event, 62 CAMBRIDGE L.J. 717, 717 (2003) ("[O]nce in existence [property rights] are themselves a species of event that gives rise to legal rights and duties . . . .").
44. He did this in two well-known articles: Wesley Newcomb Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, 23 YALE L.J. 16, 19 (1913) [hereinafter Hohfeld, Some Fundamental Legal Conceptions];
45. and Wesley Newcomb Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning, 26 YALE L.J. 710, 710 (1917). The two articles were combined in book form after his untimely death: WESLEY NEWCOMB HOHFELD, FUNDAMENTAL LEGAL CONCEPTIONS AS APPLIED IN JUDICIAL REASONING (Walter Wheeler Cook ed., 1919) [hereinafter HOHFELD, FUNDAMENTAL LEGAL CONCEPTIONS].
46. See Hohfeld, Some Fundamental Legal Conceptions, supra note 24, at 30 (laying out the matrices in some detail). For an application of the several concepts to tort law,
47. see Albert J. Harno, Tort-Relations, 30 YALE L.J. 145 (1920).
48. HOHFELD, FUNDAMENTAL LEGAL CONCEPTIONS, supra note 24, at 50-53.
49. See id. at 53-54.
50. See Pavlos Eleftheriadis, The Analysis of Property Rights, 16 OXFORD J. LEGAL STUD. 31 (1996) (elaborating on Hohfeld's application of his concepts to property).
51. HOHFELD, FUNDAMENTAL LEGAL CONCEPTIONS, supra note 24, at 38.
52. Id. at 38-39.
53. Id. at 38.
54. Id. at 39.
55. Id. at 96. Hohfeld observes: First, A has multital legal rights, or claims, that others, respectively, shall not enter on the land, that they shall not cause physical harm to the land, etc., such others being under respective correlative legal duties. Second, A has an indefinite number of legal privileges of entering on the land, using the land, harming the land, etc. . . . he has privileges of doing on or to the land what he pleases . . . . Id.
56. For more recent attempts to use the distinction in the context of property and tort law, see Lee Anne Fennell, Property and Half-Torts, 116 YALE L.J. 1400 (2007).
57. See also Shyamkrishna Balganesh, Property along the Tort Spectrum: Trespass to Chattels and the Anglo-American Doctrinal Divergence, 35 COMMON L. WORLD REV. 135 (2006).
58. See Alan R. White, Privilege, 41 MOD. L. REV. 299, 299 (1978) ("What makes anything a privilege is a particular characteristic of the circumstances in which it occurs."). Hohfeld's analysis is usually associated with the "bundle of rights" conception of property - that property consists of little more than a bundle of rights, privileges, and powers. The aforementioned lack of specific content in relation to the privileges that form part of the bundle led some critics to characterize the bundle view as a meaningless rhetorical concept.
59. See, e.g., J.E. Penner, The "Bundle of Rights" Picture of Property, 43 UCLA L. REV. 711, 714 (1996). In recognition of this criticism, and in order to give the idea more normative traction, some preferred the term "liberty" - rendering the idea circumstance-neutral.
60. See Glanville Williams, The Concept of Legal Liberty, 56 COLUM. L. REV. 1129 (1956).
61. But see Albert Kocourek, The Hohfeld System of Fundamental Legal Concepts, 15 ILL. L. REV. 24, 27-37 (1920) (arguing that Hohfeld's construction conflated privileges, liberties, and powers). Interestingly, it was Bentham who used the term "liberty" to denote precisely the same thing well before Hohfeld did. See Hart, supra note 18, at 174. Bentham characterized liberties as "[r]ights existing from the absence of obligation," to denote their specifically negative structure. JEREMY BENTHAM, GENERAL VIEW OF A COMPLETE CODE OF LAWS, reprinted in 3 THE WORKS OF JEREMY BENTHAM 181 (John Bowring ed., Russell & Russell 1962) (1838);
62. see also JEREMY BENTHAM, AN INTRODUCTION TO THE PRINCIPLES OF MORALS AND LEGISLATION 302 (J.H. Burns & H.L.A. Hart eds., 1970) (1789). Many also objected that Hohfeld's usages contradicted established linguistic conventions.
63. See Max Radin, A Restatement of Hohfeld, 51 HARV. L. REV. 1141, 1149 (1938).
64. See H.L.A. HART, ESSAYS ON BENTHAM: STUDIES IN JURISPRUDENCE AND POLITICAL THEORY 162, 171 (1982);
65. MATTHEW H. KRAMER ET AL., A DEBATE OVER RIGHTS: PHILOSOPHICAL ENQUIRIES 12-13 (1998);
66. John Finnis, Some Professorial Fallacies about Rights, 4 ADEL. L. REV. 377, 378-79 (1972).
67. KRAMER ET AL., supra note 36, at 12.
68. See Arthur L. Corbin, Legal Analysis and Terminology, 29 YALE L.J. 163, 167-68 (1919).
69. For a lucid elaboration of the concept, see Peter Birks, supra note 9, at 4-5. For similar views in early American scholarship, see James Barr Ames, Disseisin of Chattels, 3 HARV. L. REV. 23 (1890);
70. C.C. Langdell, Classification of Rights and Wrongs, 13 HARV. L. REV. 537 (1900). Hohfeld also spent some time elaborating on the primary-secondary distinction.
71. See HOHFELD, FUNDAMENTAL LEGAL CONCEPTIONS, supra note 24, at 102 (disagreeing with Ames).
72. Lord Diplock, who is credited with introducing the concept to doctrinal analysis by courts, first applied it in the context of contract law. See Brice Dickson, The Contribution of Lord Diplock to the General Law of Contract, 9 OXFORD J. LEGAL STUD. 441, 448-49 (1989).
73. See Kit Barker, Rescuing Remedialism in Unjust Enrichment Law: Why Remedies are Right, 57 CAMBRIDGE L.J. 301, 319 (1998) (advocating the use of "rights" to describe remedies); Birks, supra note 9, at 9 (observing that the term "remedy" remains obscure).
74. See Peter Birks, The Concept of a Civil Wrong, in PHILOSOPHICAL FOUNDATIONS OF TORT LAW 31 (David G. Owen ed., 1995);
75. see also Peter Birks, Equity in the Modern Law: An Exercise in Taxonomy, 26 W. AUSTL. L. REV. 1 (1996).
76. See Nicholas J. McBride, Duties of Care - Do They Really Exist?, 24 OXFORD J. LEGAL STUD. 417 (2004).
77. See 2 JOHN AUSTIN, LECTURES ON JURISPRUDENCE 787 (Robert Campbell ed., 3d ed. 1869); 1 BLACKSTONE, supra note 1, at 117-21.
78. Bernard Rudden, Correspondence, 10 OXFORD J. LEGAL STUD. 288, 288 (1990).
79. For more on Pothier's contribution, see Joseph M. Perillo, Robert J. Pothier's Influence on the Common Law of Contract, 11 TEX. WESLEYAN L. REV. 267 (2005).
80. HOHFELD, FUNDAMENTAL LEGAL CONCEPTIONS, supra note 24, at 108-09. Indeed, Hohfeld seems to hint at the possibility of a tertiary right as well, in situations where the breach of a primary right gives rise to a secondary right (of enforcement), which in turn results in a court decision that gives a party a third right against the party in breach. See id. at 108.
81. See Corbin, supra note 38, at 171-72.
82. See id. at 171; see also Arthur L. Corbin, Rights and Duties, 33 YALE L.J. 501, 511 (1924) [hereinafter Corbin, Rights and Duties].
83. Guido Calabresi & A. Douglas Melamed, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85 HARV. L. REV. 1089 (1972).
84. Id. at 1092.
85. See id.
86. Id. at 1092-93.
87. Id. at 1093-105.
88. See Henry E. Smith, Property and Property Rules, 79 N.Y.U. L. REV. 1719, 1720 (2004);
89. see also Richard R.W. Brooks, The Relative Burden of Determining Property Rules and Liability Rules: Broken Elevators in the Cathedral, 97 NW. U. L. REV. 267 (2002);
90. Louis Kaplow & Steven Shavell, Property Rules Versus Liability Rules: An Economic Analysis, 109 HARV. L. REV. 713 (1996);
91. James E. Krier & Stewart J. Schwab, Property Rules and Liability Rules: The Cathedral in Another Light, 70 N.Y.U. L. REV. 440 (1995).
92. Although in the past, scholars have attempted to analyze the interaction between the Calabresi-Melamed and Hohfeldian models, most of the attempts have involved unpacking the former's entitlement structure using Hohfeld's ideas rather than analyzing how the two actually might complement each other. See, e.g., STEPHEN R. MUNZER, A THEORY OF PROPERTY 27 n.14 (1990); Fennell, supra note 34, at 1406;
93. Madeline Morris, The Structure of Entitlements, 78 CORNELL L. REV. 822 (1993).
94. See Calabresi & Melamed, supra note 49, at 1090 ("[T]he fundamental thing that law does is to decide which of the conflicting parties will be entitled to prevail.").
95. Ironically, Calabresi and Melamed do not so much as reference Hohfeld's work, even though they note that their project is aimed at integrating "legal relationships," a phrase that had formed the focus of Hohfeld's seminal study. See id. at 1089.
96. For an elaboration of the problem in the context of the owner's remedy of self-help (a use-privilege), see Henry E. Smith, Self-Help and the Nature of Property, 1 J.L. ECON. & POL'Y 69 (2005) (attributing some of these problems to the overextensive use of symmetry in economic understandings of property).
97. See Merrill & Smith, supra note 2, at 379-83 (noting how the Calabresi-Melamed framework contributed to the demise of the traditional understanding of property as an in rem right). For more on the move in the economic analysis towards remedialism, see Jules L. Coleman & Jody Kraus, Rethinking the Theory of Legal Rights, 95 YALE L.J. 1335, 1339 (1986).
98. See Emily Sherwin, Introduction: Property Rules as Remedies, 106 YALE L.J. 2083, 2083-84 (1997) (emphasizing how the entitlement framework has shifted legal analysis in the direction of remedies).
99. For a comprehensive critique of the entitlement framework's emphasis on enforcement and its neglect of the "guidance" function, see Dale A. Nance, Guidance Rules and Enforcement Rules: A Better View of the Cathedral, 83 VA. L. REV. 837 (1997).
100. See generally Meir Dan-Cohen, Decision Rules and Conduct Rules: On Acoustic Separation in Criminal Law, 97 HARV. L. REV. 625 (1984) (using the same distinction between rules consciously directed at individuals and those directed at officials, in the context of criminal law).
101. Nance, supra note 61, at 858-69.
102. Indeed, the ideal formed the driving force behind much of legal positivism. Hart famously characterized this idea as the "critical reflexive attitude" of individuals in society. H.L.A. HART, THE CONCEPT OF LAW 56, 88 (1961). See also infra Part II.A.2 for an elaboration of this idea.
103. Corbin, Rights and Duties, supra note 48, at 502.
104. When the right imposes a duty on a determinate (or identifiable) individual or class of individuals, it is a right in personam; when the group is indeterminate or open-ended, the right is in rem. It is critical, however, to note that the distinction is not merely one of numbers (that is, single and multiple), but rather of determinacy. See Radin, supra note 35, at 1153-56.
105. See Max Radin, Correlation, 29 COLUM. L. REV. 901, 904-05 (1929).
106. For further criticism and defenses of the concept of correlation, see Jack Donnelly, How Are Rights and Duties Correlative?, 16 J. VALUE INQUIRY 287 (1982);
107. David Lyons, The Correlativity of Rights and Duties, 4 NOÛS 45 (1970);
108. Marcus G. Singer, The Basis of Rights and Duties, 23 PHIL. STUD. 48 (1972).
109. Yet the correlative normativity is unidirectional, for it remains possible to have a duty without a correlative right (for example, the tortious duty of care), whereas a claim-right cannot exist absent its correlative duty. See WILLIAM MARKBY, ELEMENTS OF LAW 90-91 (4th ed. 1889).
110. Interestingly, Hohfeld restricted his analysis to strictly legal relations, seemingly denying the existence or influence of morality. See HOHFELD, FUNDAMENTAL LEGAL CONCEPTIONS, supra note 24, at 27.
111. For an attempt to draw out similarities between moral rights and the idea of legal rights as Hohfeld used them, see Bruno R. Rea, The Interplay of Legal and Moral Rights, 20 J. VALUE INQUIRY 235 (1986). Hohfeld's structure remains readily applicable to moral relationships as well. See KRAMER ET AL., supra note 36, at 8 ("[V]irtually every aspect of Hohfeld's analytical scheme applies as well, mutatis mutandis, to the structuring of moral relationships."); see also Corbin, Rights and Duties, supra note 48, at 505-06.
112. See Joel Feinberg, The Social Importance of Moral Rights, in 6 PHILOSOPHICAL PERSPECTIVES: ETHICS 175 (James. E. Tomberlin ed., 1992).
113. Indeed, numerous exclusionary strategies involve the use of "exclusionary privileges," where owners use a resource and its myriad attributes to exclude others from it. "Exclusionary amenities," then, represent no more than such privileges. For a comprehensive overview of the use of exclusionary amenities as a strategy of exclusion, see Strahilevitz, supra note 8. On occasion, use-strategies that involve exclusion are referred to as "rights of exclusion," when terminologically they really represent exclusionary privileges. See Strahilevitz, supra note 5, at 1859-61, 1861 n.96 (noting that "exclusionary vibes" and "exclusionary amenities" do, in reality, represent privileges).
114. For more on the role of fences, boundaries, and the use of self-help, see generally Robert C. Ellickson, Of Coase and Cattle: Dispute Resolution Among Neighbors in Shasta County, 38 STAN. L. REV. 623 (1986).
115. Self-help is as old as the idea of property itself. See generally Matthew R. Christ, Legal Self-Help on Private Property in Classical Athens, 119 AM. J. PHILOLOGY 521 (1998);
116. Joshua Getzler, Property, Personality and Violence, in PROPERTIES OF LAW: ESSAYS IN HONOUR OF JIM HARRIS, supra note 5, at 246.
117. See W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS 85-86 (5th ed. 1984); RESTATEMENT (SECOND) OF TORTS § 218 (1965); Richard A. Epstein, Cybertrespass, 70 U. CHI. L. REV. 73, 78 (2003).
118. As the Restatement notes: "Sufficient legal protection of the possessor's interest in the mere inviolability of his chattel is afforded by his privilege to use reasonable force to protect his possession against even harmless interference." RESTATEMENT (SECOND) OF TORTS § 218 cmt. e (1965) (emphasis added).
119. For an overview of self-help in the intangible world, see Julie E. Cohen, Copyright and the Jurisprudence of Self-Help, 13 BERKELEY TECH. L.J. 1089 (1998);
120. Kenneth W. Dam, Self-Help in the Digital Jungle, 28 J. LEGAL STUD. 393 (1999);
121. Douglas Lichtman, How the Law Responds to Self-Help, 1 J.L. ECON. & POL'Y 215 (2005).
122. For example, in the nature of anticircumvention or digital rights management (DRM) measures.
123. Where there is a right, there must be a remedy. See 3 BLACKSTONE, supra note 1, at 23.
124. For an elaboration on the Roman understanding of ownership and the role of the vindicatio therein, see Peter Birks, The Roman Law Concept of Dominium and the Idea of Absolute Ownership, in 1985 ACTA JURIDICA 1 (1986).
125. For more on the in rei vindicatio, see W.W. BUCKLAND, A TEXT-BOOK OF ROMAN LAW FROM AUGUSTUS TO JUSTINIAN 675 (3d ed. 1963);
126. BARRY NICHOLAS, AN INTRODUCTION TO ROMAN LAW 125 (1962);
127. ALAN WATSON, THE LAW OF PROPERTY IN THE LATER ROMAN REPUBLIC 91 (1968).
128. D.J. IBBETSON, A HISTORICAL INTRODUCTION TO THE LAW OF OBLIGATIONS 107-08 (1999);
129. UGO MATTEI, BASIC PRINCIPLES OF PROPERTY LAW: A COMPARATIVE LEGAL AND ECONOMIC INTRODUCTION 182-87 (2000).
130. See David Fox, Relativity of Title at Law and in Equity, 65 CAMBRIDGE L.J. 330, 334 (2006).
131. This tendency is seen most clearly in the work of Jim Harris, who characterizes all of property as consisting of, inter alia, a "bounded trespassory right." See HARRIS, supra note 5, at 13-14.
132. See Neil MacCormick, Discretion and Rights, 8 LAW & PHIL. 23 (1989). For more on the topic, see infra Part III.B.
133. See Birks, supra note 9, at 16-17. As Birks notes: "Orders for specific performance and for injunctions . . . are weakly discretionary. . . . To speak of a right to specific performance or injunction . . . is not nonsense. We know on what facts a person is entitled to such orders." Id. at 16. For the distinction between weak and strong conceptions of discretion, see RONALD DWORKIN, TAKING RIGHTS SERIOUSLY 31-33 (1977); George C. Christie, An Essay on Discretion, 1986 DUKE L.J. 747.
134. For more on courts' willingness to alter the standard for granting injunctive relief depending on subjective circumstances, see DOUGLAS LAYCOCK, THE DEATH OF THE IRREPARABLE INJURY RULE (1991) (analyzing the conspicuous inconsistency in courts' grants of injunctive relief in spite of identical circumstances).
135. This would in the process lend itself to a form of property skepticism - the belief that the term and institution of property are meaningless constructs whose content and significance tend to vary across time, place, and resource, and admit of no unifying features. See Kevin Gray, Property in Thin Air, 50 CAMB. L.J. 252 (1991);
136. Thomas C. Grey, The Disintegration of Property, in NOMOS XXII: PROPERTY 69 (J. Roland Pennock & John W. Chapman eds., 1980). My argument no doubt derives from the belief that property is indeed a meaningful concept with a few identifiable unifying features, the primary one of which remains the right to exclude.
137. See supra notes 37-38 and accompanying text.
138. In spite of it being a remedial (and therefore dependent) variant, the exclusionary remedy conception of the right to exclude continues to dominate property debates among both scholars and courts. See David Frisch, Remedies as Property: A Different Perspective on Specific Performance Clauses, 35 WM. & MARY L. REV. 1691, 1713 (1994) ("[I]f an entitlement, under appropriate circumstances, cannot be protected by [a property] rule, the entitlement (whatever else it may be) is not a property interest."). Indeed, this conception remains ascendant in other common law countries as well.
139. See William Gummow, The Injunction in Aid of Legal Rights - An Australian Perspective, 56 LAW & CONTEMP. PROBS. 83, 103-04 (1993) (noting how in Australia injunctions are granted only to protect property rights, but that the definition of property rights is often premised on the availability of an injunction, which makes the logic circular).
140. For some recent work in the area, see Thomas W. Merrill & Henry E. Smith, The Morality of Property, 48 WM. & MARY L. REV. 1849 (2007);
141. Carol M. Rose, The Moral Subject of Property, 48 WM. & MARY L. REV. 1897 (2007);
142. Emily Sherwin, Three Reasons Why Even Good Property Rights Cause Moral Anxiety, 48 WM. & MARY L. REV. 1927 (2007).
143. For previous attempts to ground the notion of property in ideals of justice and morality, see J.W. HARRIS, PROPERTY & JUSTICE (1996);
144. JEREMY WALDRON, THE RIGHT TO PRIVATE PROPERTY (1988);
145. David Lametti, The Concept of Property: Relations Through Objects of Social Wealth, 53 U. TORONTO L.J. 325 (2003).
146. See supra notes 24-33 and accompanying text.
147. HOHFELD, FUNDAMENTAL LEGAL CONCEPTIONS, supra note 24, at 96.
148. See Lawrence K. Frank, The Concept of Inviolability in Culture, 36 AM. J. SOC. 607 (1931).
149. See, e.g., id. at 614-15. Frank notes: [A] careful, detailed exposition of the concept of inviolability, in its multitudinous ramifications and implications, will provide at once a basic scheme for the study of comparative culture, comparative law, and indeed all the social studies and a peculiarly significant program for investigating the development of personality as it arises in and through the impact of culture upon the individual. Id.
150. For an elaboration of the "taboo" concept at the interface of law and anthropology, see Lawrence K. Frank, An Institutional Analysis of the Law, 24 COLUM. L. REV. 480, 481 (1924) ("[E]verything used or useful in living which has been appropriated by someone, or has come from something appropriated, is taboo to all others . . . ."). Caution, however, needs to be exercised in taking the argument to its logical conclusion. Some have used anthropological studies to conclude that, because taboos connote little more than consequences that attach to certain proscribed activities, they remain independently meaningless.
151. See Alf Ross, Tû-Tû, 70 HARV. L. REV. 812, 819 (1957) (noting how the rules of ownership are capable of being expressed without actual use of the word). Yet, for our purpose, the rules' ability to influence behavior in this way is precisely a recognition of their normative content.
152. See Frank, supra note 91, at 614.
153. See, e.g., RONALD DWORKIN, LIFE'S DOMINION: AN ARGUMENT ABOUT ABORTION, EUTHANASIA, AND INDIVIDUAL FREEDOM 84 (1993) (offering an investment-based theory as justification for the inviolability of the person).
154. For an elaborate critique of Dworkin's theory, see Richard Stith, On Death and Dworkin: A Critique of His Theory of Inviolability, 56 MD. L. REV. 289 (1997).
155. For a detailed analysis of the "is-ought" distinction that remains central to moral philosophy, see Alan Gewirth, The 'Is-Ought' Problem Resolved, 47 PROC. & ADDRESSES AM. PHIL. ASS'N 34 (1973).
156. See H.L.A. HART, THE CONCEPT OF LAW 89 (2d ed. 1994).
157. Id.; see also Scott J. Shapiro, What is the Internal Point of View?, 75 FORDHAM L. REV. 1157 (2006).
158. Shapiro, supra note 98, at 1161-62; see also John C.P. Goldberg & Benjamin C. Zipursky, Seeing Tort Law from the Internal Point of View: Holmes and Hart on Legal Duties, 75 FORDHAM L. REV. 1563 (2006);
159. Stephen Perry, Hart on Social Rules and the Foundations of Law: Liberating the Internal Point of View, 75 FORDHAM L. REV. 1171 (2006);
160. Benjamin C. Zipursky, Legal Obligations and the Internal Aspect of Rules, 75 FORDHAM L. REV. 1229 (2006).
161. PENNER, supra note 5, at 128.
162. Id.
163. Merrill and Smith refer to this duty as the "dut[y] of abstention." Merrill & Smith, supra note 88, at 1852. They go on to note in the context of a similar example involving cars that "virtually everyone must recognize and consider themselves bound by general duties not to interfere with autos that they know are owned by some anonymous other." Id. at 1854.
164. See Mossoff, supra note 17, at 379-85 (offering a more detailed analysis of Grotius and Pufendorf).
165. 2 HUGO GROTIUS, DE JURE BELLI AC PACIS LIBRI TRÈS 53-54 (Francis W. Kelsey trans., 1925) (1625).
166. See STEPHEN BUCKLE, NATURAL LAW AND THE THEORY OF PROPERTY: GROTIUS TO HUME 29 (1991) (explaining Grotius's idea of suum and its use in the context of property and inviolability).
167. It is worth cautioning against the seemingly intuitive argument that because inviolability persists in both contexts, either (1) body parts are ownable resources or (2) that resources are mere extensions of one's body. See J.W. Harris, Who Owns My Body, 16 OXFORD J. LEGAL STUD. 55 (1996);
168. Stephen R. Munzer, Kant and Property Rights in Body Parts, 6 CAN. J.L. & JURISPRUDENCE 319 (1993). This contiguity has formed the basis of the argument that property is nothing more than a logical extension of the control individuals exert over their bodies.
169. See Samual C. Wheeler III, Natural Property Rights as Body Rights, 14 NOÛS 171 (1980).
170. 2 SAMUEL PUFENDORF, DE JURE NATURAE ET GENTIUM LIBRI OCTO 547 (C.H. Oldfather & W.A. Oldfather trans., 1934) (1688).
171. See RESTATEMENT OF PROPERTY § 504 cmt. a (1944) (noting how an easement can be readily abandoned); THOMAS W. MERRILL & HENRY E. SMITH, PROPERTY: PRINCIPLES AND POLICIES 518-21 (2007) (noting how real property cannot be abandoned).
172. Thus, situations in which free speech considerations or health and safety concerns preclude an owner from commencing an action for trespass may, in this framework, be interpreted as situations in which other values trump the norm of inviolability, contextually. The strength of the norm varies not just across resource, but also across context. See PruneYard Shopping Ctr. v. Robins, 447 U.S. 74 (1980); State v. Shack, 277 A.2d 369 (N.J. 1971).
173. See, e.g., Jacque v. Steenberg Homes, Inc., 563 N.W.2d 154 (Wis. 1997) (holding an intentional trespasser liable for punitive damages of $100,000 even though the jury had found the actual damage to plaintiff's property to be nominal and awarded a sum of $1).
174. See HOHFELD, FUNDAMENTAL LEGAL CONCEPTIONS, supra note 24, at 73 (noting that the relationship can be viewed from "different angles").
175. Indeed, some might even argue that this typifies the situation where a duty exists without a correlative right altogether. See MARKBY, supra note 67, at 90-91.
176. For an overview of the evolution of the duty of care in tort law, see W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS 357 (5th ed. 1984) (noting how the idea developed as negligence began to become an independent basis of liability in order to establish a causal connection between the plaintiff and the defendant).
177. In this sense, associating the right to exclude with an action for trespass remains problematic. Although trespass law does build on the basic notion that property entails the right to exclude, it certainly does not provide an owner with the right to exclude. Trespass is concerned
178. See Joseph E. Stiglitz, Knowledge as a Global Public Good, in GLOBAL PUBLIC GOODS: INTERNATIONAL COOPERATION IN THE 21ST CENTURY 308 (1999).
179. Id. at 308-10.
180. 35 U.S.C. § 154(a)(1) (2005) (emphasis added).
181. See 35 U.S.C. §§ 283-84 (2005).
182. For more on this distinction, see Mark A. Lemley, Should Patent Infringement Require Proof of Copying?, 105 MICH. L. REV. 1525 (2007);
183. Samson Vermont, Independent Invention as a Defense to Patent Infringement, 105 MICH. L. REV. 475 (2006);
184. see also Clarisa Long, Information Costs in Patent and Copyright, 90 VA. L. REV. 465 (2004).
185. See generally Henry E. Smith, Intellectual Property as Property: Delineating Entitlements in Information, 116 YALE L.J. 1742, 1800 (2007) (observing how copyright law tends to place less reliance on exclusion than patent law and is thus less "property-like"). But see Fox Film Corp. v. Doyal, 286 U.S. 123, 127 (1932) ("The owner of the copyright, if he pleases, may refrain from vending or licensing and content himself with simply exercising the right to exclude others from using his property.").
186. White-Smith Music Publ'g Co. v. Apollo Co., 209 U.S. 1, 19 (1908) (Holmes, J., concurring).
187. See, e.g., HOHFELD, FUNDAMENTAL LEGAL CONCEPTIONS, supra note 24, at 73, 108, 110.
188. Id. at 41-42.
189. Id. at 110 (noting how a primary right in personam may be enforced through a proceeding quasi in rem).
190. It is not readily apparent that Hohfeld was advocating for its complete independence; his analysis seems to be restricted to arguing that the nature and character of the primary right were to be understood independent of the nature and character of the secondary right that comes into play to enforce the former. See id. at 102.
191. The most prominent promise-based theory of contract law is, arguably, that of Charles Fried. See CHARLES FRIED, CONTRACT AS PROMISE: A THEORY OF CONTRACTUAL OBLIGATION (1981).
192. For other prominent works, see Morris R. Cohen, The Basis of Contract, 46 HARV. L. REV. 553 (1933);
193. Charles J. Goetz & Robert E. Scott, Enforcing Promises: An Examination of the Basis of Contract, 89 YALE L.J. 1261 (1980).
194. RESTATEMENT (SECOND) OF CONTRACTS § 1 (1981).
195. See FRIED, supra note 126, at 16 ("The obligation to keep a promise is grounded not in arguments of utility but in respect for individual autonomy and in trust").
196. For some of the nonutilitarian criticisms of the promissory theory, see P.S. ATIYAH, PROMISES, MORALS, AND LAW (1981);
197. DORI KIMEL, FROM PROMISE TO CONTRACT: TOWARDS A LIBERAL THEORY OF CONTRACT (2003);
198. Richard Craswell, Contract Law, Default Rules, and the Philosophy of Promising, 88 MICH. L. REV. 489 (1989).
199. See Seana Valentine Shiffrin, The Divergence of Contract and Promise, 120 HARV. L. REV. 708, 721 (2007). As Shiffrin notes: In U.S. law, promises are embedded within contracts and form their basis. . . . The language of promises, promisees, and promisors saturates contract law - in decisions, statutes, and the Restatement. It also permeates the academic literature through its common characterization of contracts as the law of enforceable promises and by its formulation of the foundational questions of contract as which promises to enforce, why, and how. Id.
200. It might be argued that Hohfeld would have had serious objections to the incorporation of moral elements into this classificatory structure. Early in his work, he sought to make a clear distinction between legal and nonlegal conceptions, though he never used the word "morality." See HOHFELD, FUNDAMENTAL LEGAL CONCEPTIONS, supra note 24; see also supra note 68 and accompanying text.
201. See Peter Linzer, On the Amorality of Contract Remedies - Efficiency, Equity, and the Second Restatement, 81 COLUM. L. REV. 111 (1981) (setting out the morality-efficiency debate among contract theorists and noting its reflection in the drafting of the Restatement).
202. See, e.g., RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW 118-26 (7th ed. 2007).
203. See 11 ARTHUR CORBIN, CORBIN ON CONTRACTS § 55.4 (Joseph M. Perillo ed., rev. ed. 2005);
204. SAMUEL WILLISTON, A TREATISE ON THE LAW OF CONTRACTS § 64.1 (Richard A. Lord ed., 4th ed. 2002);
205. E. Allan Farnsworth, Legal Remedies for Breach of Contract, 70 COLUM. L. REV. 1145 (1970).
206. For some empirical arguments that courts nevertheless exhibit greater inclination to grant specific performance than theory would suggest, see M.T. Van Hecke, Changing Emphases in Specific Performance, 40 N.C. L. REV. 1 (1961).
207. See GARETH JONES & WILLIAM GOODHART, SPECIFIC PERFORMANCE 2 (2d ed. 1996);
208. see also Andrew Phang, Specific Performance - Exploring the Roots of 'Settled Practice,' 61 MOD. L. REV. 421, 423 (1998) (noting that under English law the grant of specific performance remains the exception, unlike in civil law jurisdictions).
209. See Dori Kimel, Remedial Rights and Substantive Rights in Contract Law, 8 LEGAL THEORY 313, 320 (2002).
210. Oliver Wendell Holmes, Jr., The Path of the Law, 10 HARV. L. REV. 457, 462 (1897). Justice Holmes is even more vitriolic later in the same paragraph when he notes, in the context of efficiency, that "such a mode of looking at the matter stinks in the nostrils of those who think it advantageous to get as much ethics into the law as they can." Id.
211. The phrase "efficient breach" was first coined by Charles Goetz and Robert Scott. See Charles J. Goetz & Robert E. Scott, Liquidated Damages, Penalties and the Just Compensation Principle: Some Notes on an Enforcement Model and a Theory of Efficient Breach, 77 COLUM. L. REV. 554 (1977). For elaborations both agreeing and disagreeing with the theory, see POSNER, supra note 133, at 119-20;
212. Ian R. Macneil, Efficient Breach of Contract: Circles in the Sky, 68 VA. L. REV. 947 (1982);
213. James P. Nehf, Contract Damages as Substitute for Full Performance, 32 IND. L. REV. 765 (1999).
214. See Anthony T. Kronman, Specific Performance, 45 U. CHI. L. REV. 351, 354 (1978).
215. See, e.g., Robert L. Birmingham, Breach of Contract, Damage Measures, and Economic Efficiency, 24 RUTGERS L. REV. 273, 284 (1970).
216. For an overview of this change, see LARRY A. DIMATTEO, CONTRACT THEORY: THE EVOLUTION OF CONTRACTUAL INTENT (1998).
217. See Alan Schwartz, The Case for Specific Performance, 89 YALE L.J. 271 (1979).
218. For a more recent utilitarian criticism of the idea, see Richard R.W. Brooks, The Efficient Performance Hypothesis, 116 YALE L.J. 568 (2006).
219. See, e.g., Thomas Scanlon, Promises and Practices, 19 PHIL. & PUB. AFF. 199 (1990).
220. Charles Fried, The Convergence of Contract and Promise, 120 HARV. L. REV. F. 1, 3 (2007), http://www.harvardlawreview.org/ forum/issues/120/jan07/cfried.pdf (emphasis added) (footnote omitted).
221. See Linzer, supra note 132; see also supra notes 132-33 and accompanying text.
222. See DAVID HUME, A TREATISE OF HUMAN NATURE, bk. III, pt. II, § 5, at 519-21 (P.H. Nidditch ed., 2d ed. 1978) (1740) (noting that promises are human inventions based on the "necessities and interests of society");
223. ROSCOE POUND, AN INTRODUCTION TO THE PHILOSOPHY OF LAW 237 (1922) (characterizing promising as a basic social and economic institution);
224. see also 1 ARTHUR CORBIN, CORBIN ON CONTRACTS § 1.1, at 2 (Joseph M. Perillo ed., rev. ed. 1993) ("[T]he law of contracts attempts the realization of reasonable expectations that have been induced by the making of a promise. . . . [I]t is believed to be the main underlying purpose, and it is believed that an understanding of many of the existing rules and a determination of their effectiveness require a lively consciousness of this underlying purpose." (emphasis added));
225. L.L. Fuller & William R. Perdue, Jr., The Reliance Interest in Contract Damages: 1, 46 YALE L.J. 52, 57 (1936) (noting how the law backs the sense of injury that the "breach of a promise" engenders).
226. See Malcolm P. Sharp, Pacta Sunt Servanda, 41 COLUM. L. REV. 783 (1941) (describing the norm as deriving from the practical need for dependability in commercial interactions).
227. See Ernest J. Weinrib, Legal Formalism: On the Immanent Rationality of Law, 97 YALE L.J. 949, 950 (1988) ("Formalism is like a heresy driven underground, whose tenets must be surmised from the derogatory comments of its detractors.").
228. For a historical account of formalism and its development in American legal thinking, see Morton J. Horwitz, The Rise of Legal Formalism, 19 AM. J. LEGAL HIST. 251 (1975).
229. See Weinrib, supra note 148, at 955.
230. Perhaps the most scathing attack on conceptualism in the first half of the twentieth century came from Felix Cohen, who characterized it as a form of "transcendental nonsense." See Felix Cohen, Transcendental Nonsense and the Functional Approach, 35 COLUM. L. REV. 809 (1935). Cohen, however, seemed sympathetic to Hohfeld's project, including it in the functionalist paradigm along with the ideas of Holmes. See id. at 828. This likely ignores Hohfeld's primary-secondary distinction, where he sought to understand the former entirely outside the judicial paradigm.
231. See also Walter B. Kennedy, Functional Nonsense and the Transcendental Approach, 5 FORDHAM L. REV. 272 (1936) (offering a defense of conceptualism in response to Cohen).
232. JULES L. COLEMAN, THE PRACTICE OF PRINCIPLE: IN DEFENCE OF A PRAGMATIST APPROACH TO LEGAL THEORY 6-7 (2001).
233. Id. at 8.
234. Id. at 10; see also Jody S. Kraus, Transparency and Determinacy in Common Law Adjudication: A Philosophical Defense of Explanatory Economic Analysis, 93 VA. L. REV. 287, 315 (2007).
235. See, e.g., STEPHEN A. SMITH, CONTRACT THEORY (2004).
236. Benjamin C. Zipursky, Pragmatic Conceptualism, 6 LEGAL THEORY 457 (2000). Zipursky notes: "[T]o understand the concepts and principles within an area of the law is to grasp from within the practices of the law the pattern of verbal and practical inferences that constitute the relevant area of the law." Id. at 473. Jeremy Waldron offers a similar account of the role of concepts that he terms "systematicity." See Jeremy Waldron, "Transcendental Nonsense" and System in the Law, 100 COLUM. L. REV. 16, 25 (2000) ("The rules in which [theoretical terms] appear fit together in complex interconnection, not as coordinate purposive rules in a coherent array of purposes but as interlocking parts of different shape, each contributing a particular functional component to an overall integrated picture.").
237. Zipursky, supra note 155, at 475.
238. See Cohen, supra note 150, at 829-34.
239. A major exception to this trend is the work of Merrill and Smith, most notably in their analysis of the doctrine of numerus clausus in terms of the information burdens it places on participants in the property system. See Thomas W. Merrill & Henry E. Smith, Optimal Standardization in the Law of Property: The Numerus Clausus Principle, 110 YALE L.J. 1 (2000).
240. Two obvious examples of this fragmentation are: (1) the tort of trespass (to realty and chattels), where tort law's corrective and distributive justice justifications have little explanatory force, see Shyamkrishna Balganesh, Common Law Property Metaphors on the Internet: The Real Problem with the Doctrine of Cybertrespass, 12 MICH. TELECOMM. & TECH. L. REV. 265, 274 (2006), and (2) the enforcement of contracts relating to the sale of land and identifiable goods, where in contrast to other forms of contract, courts readily award specific performance, even in the absence of an obvious efficiency gain, see Kronman, supra note 139, at 355; see also RESTATEMENT (SECOND) OF TORTS §§ 158, 217 (2007).
241. See, e.g., Balganesh, supra note 159, at 331-33.
242. As Karl Llewellyn, a well-known realist scholar, noted, "[A] right is best measured by effects in life. Absence of remedy is absence of right. Defect of remedy is defect of right." KARL N. LLEWELLYN, THE BRAMBLE BUSH: ON OUR LAW AND ITS STUDY 94 (1960).
243. eBay Inc. v. MercExchange, L.L.C., 126 S. Ct. 1837 (2006).
244. R. MEGARRY & P. BARKER, SNELL'S PRINCIPLES OF EQUITY 624 (27th ed. 1973).
245. WILLIAM WILLIAMSON KERR, A TREATISE ON THE LAW AND PRACTICE OF INJUNCTIONS 1 (John Melvin Paterson ed., 5th ed. 1914).
246. See 1 JOSEPH STORY, COMMENTARIES ON EQUITY JURISPRUDENCE, AS ADMINISTERED IN ENGLAND AND AMERICA § 33 (1836).
247. See Developments in the Law - Injunctions, 78 HARV. L. REV. 994, 999-1000 (1965).
248. See OWEN M. FISS, THE CIVIL RIGHTS INJUNCTION 1 (1978).
249. See DAN B. DOBBS, HANDBOOK ON THE LAW OF REMEDIES: DAMAGES-EQUITY- RESTITUTION § 2.1 (1973). For more on the inadequacy rule, see Doug Rendleman, The Inadequate Remedy at Law Prerequisite for an Injunction, 33 U. FLA. L. REV. 346, 346 (1981); Developments in the Law, supra note 166, at 1002.
250. For more on the irreparable injury rule, see Douglas Laycock, The Death of the Irreparable Injury Rule, 103 HARV. L. REV. 687 (1990).
251. See also Doug Rendleman, Irreparability Irreparably Damaged, 90 MICH. L. REV. 1642 (1992).
252. For a more recent analysis of the doctrine, arguing that it represents somewhat of an asymmetry, see Douglas Lichtman, Irreparable Benefits, 106 YALE L.J. 1284 (2007).
253. For a comprehensive historical analysis of the inadequacy rule, concluding that historically, the Chancery Court did not have to adhere to it in copyright cases, see Tomás Gómez-Arostegui, What History Teaches Us About Copy right Injunctions and the Inadequate-Remedy-at-Law Requirement, 81 S. CAL. L. REV. (forthcoming 2008).
254. Barton H. Thompson, Jr., Note, Injunction Negotiations: An Economic, Moral, and Legal Analysis, 27 STAN. L. REV. 1563, 1577 (1975).
255. See generally W. Page Keeton & Clarence Morris, Notes on "Balancing the Equities," 18 TEX. L. REV. 412 (1939);
256. John Leland Mechem, The Peasant in His Cottage: Some Comments on the Relative Hardship Doctrine in Equity, 28 S. CAL. L. REV. 139 (1955).
257. But see Gene R. Shreve, Federal Injunctions and the Public Interest, 51 GEO. WASH. L. REV. 382, 419 (1983).
258. Indeed, some argue that this discretion is difficult to reconcile with the terms of the test. See DOUGLAS LAYCOCK, THE DEATH OF THE IRREPARABLE INJURY RULE (1991).
259. See generally Roscoe Pound, The Decadence of Equity, 5 COLUM. L. REV. 20, 22 (1905).
260. These concepts are collectively referred to as the "maxims of equity." See CHARLES NEAL BARNEY, EQUITY AND ITS REMEDIES 39 (1915) ("Underlying the doctrines of equity and at the basis of this system of jurisprudence are certain general principles called maxims.");
261. Roscoe Pound, The Maxims of Equity - I: Of Maxims Generally, 34 HARV. L. REV. 809 (1921).
262. See Gee v. Pritchard, (1818) 36 Eng. Rep. 670, 674 (Ch.); Developments in the Law, supra note 166, at 998.
263. Developments in the Law, supra note 166, at 1001.
264. W.B.G., Note and Comment, A Re-Interpretation of Gee v. Pritchard, 25 MICH. L. REV. 889, 890 (1927).
265. Joseph R. Long, Equitable Jurisdiction to Protect Personal Rights, 33 YALE L.J. 115, 132 (1923).
266. See, e.g., Roscoe Pound, Equitable Relief Against Defamation and Injuries to Personality, 29 HARV. L. REV. 640, 641 (1916).
267. 5 JOHN NORTON POMEROY, EQUITY JURISPRUDENCE AND EQUITABLE REMEDIES § 1944 (2d ed. 1919);
268. Henry L. McClintock, Discretion to Deny Injunction Against Trespass and Nuisance, 12 MINN. L. REV. 565, 572 (1928).
269. See, e.g., Walters v. McElroy, 25 A. 125, 127 (Pa. 1892) ("The phrase 'of grace' . . . has no rightful place in the jurisprudence of a free commonwealth, and ought to be relegated to the age in which it was appropriate."); see also Hulbert v. Cal. Portland Cement Co., 118 P. 928, 931 (Cal. 1911); Currie v. Silvernale, 171 N.W. 782, 784 (Minn. 1919).
270. McClintock, supra note 182, at 569.
271. JAMES L. HIGH, A TREATISE ON THE LAW OF INJUNCTIONS, AS ADMINISTERED IN THE LAWS OF THE UNITED STATES AND ENGLAND 254 (1874);
272. Note, Injunctions Against Continuing or Permanent Injury to Real Property, 24 VA. L. REV. 786, 786 (1938).
273. FRANCIS HILLIARD, THE LAW OF INJUNCTIONS 345 (3d ed. 1874).
274. Courts thus developed the distinction between trespasses by strangers to the property and trespasses by those acting under color of right. Ironically though, the law favored the grant of injunctive relief in the case of the latter and not the former. See V.C. Kindersley's Court: Lowndes vs. Bettle, 13 AMER. L. REG. 169, 170 (1865) (reporting the decisions in Lowndes v. Bettle, (1864) 33 L.J. Ch. 451, where the distinction was described most lucidly); see also William Draper Lewis, Injunctions Against Nuisances and the Rule Requiring the Plaintiff to Establish his Right at Law, 56 U. PA. L. REV. 289 (1908).
275. See WILLIAM WILLIAMSON KERR, A TREATISE ON THE LAW AND PRACTICE OF INJUNCTIONS 147-48 (Franklin S. Dickson ed., 3d ed. 1889).
276. See Samuel C. Wiel, Injunction Without Damage As Illustrated by a Point in the Law of Waters, 5 CAL. L. REV. 199, 201 (1917) (noting how the rule transforms something into a form of liability actionable per se).
277. KERR, supra note 188, at 149.
278. See Lowndes v. Bettle, (1864) 33 L.J. Ch. 451.
279. KERR, supra note 188, at 188.
280. For some recent instances where courts identify the grant of injunctive relief as the default norm, evidencing a move to the "discretion to deny" formulation, see: Amaral v. Cuppels, 831 N.E.2d 915, 920 n.10 (Mass. App. Ct. 2005) (identifying injunctive relief as the "appropriate remedy" when a repeated trespass occurs and recognizing that "exceptional circumstances" might merit the denial of such relief); Shapiro Bros., Inc. v. Jones-Festus Props., L.L.C., 205 S.W.3d 270, 278-79 (Mo. Ct. App. 2006) (identifying injunctions as the "proper remedy" whenever a harassing, continuing, and annoying trespass is involved); Warm v. State, 764 N.Y.S.2d 483, 486 (App. Div. 2003) (identifying injunctive relief as a proper remedy, but noting that "equity may withhold the use of such discretionary authority if warranted by the circumstances"); Young v. Lica, 576 S.E.2d 421, 424 (N.C. Ct. App. 2003) (identifying exclusion as a key component of ownership and injunctive relief as the "usual remedy" for a continuing trespass); Aguilar v. Morales, 162 S.W.3d 825, 836 (Tex. App. 2005) (identifying an injunction as the "proper remedy" for a repeated and continuing trespass). The operative presumption in all of these cases is that since the interference is continuing, damages - which are by their nature one time, or would alternatively require multiple actions - are intrinsically inadequate, making injunctive relief the default. See also 42 AM. JUR. 2D Injunctions § 110 (2007) ("Generally, an injunction will lie to restrain repeated trespasses so as to prevent irreparable injury and a multiplicity of suits. Indeed, it has been held that even the threat of continuous trespass entitles a party to injunctive relief." (emphasis added)); 43A C.J.S. Injunctions § 138 (2007) ("The general rule permits injunctive relief for repeated or continuing trespasses, even in cases where the damage is nominal and no single trespass causes irreparable injury."); JAMES C. SMITH & JACQUELINE P. HAND, NEIGHBORING PROPERTY OWNERS § 3.13 (2007).
281. See, e.g., LOUIS HENKIN, THE AGE OF RIGHTS 3 (1990).
282. See JESSE DUKEMINIER & JAMES E. KRIER, PROPERTY 135 (6th ed. 2006); MERRILL & SMITH, supra note 108, at 50-56;
283. Kelvin H. Dickinson, Mistaken Improvers of Real Estate, 64 N.C. L. REV. 37 (1985);
284. John Henry Merryman, Improving the Lot of the Trespassing Improver, 11 STAN. L. REV. 456 (1959).
285. See, e.g., Nebel v. Guyer, 221 P.2d 337 (Cal. Dist. Ct. App. 1950); Golden Press, Inc. v. Rylands, 235 P.2d 592 (Colo. 1951); Mannillo v. Gorski, 255 A.2d 258 (N.J. 1969); Goldbacher v. Eggers, 76 N.Y.S. 881 (Sup. Ct. 1902); Owenson v. Bradley, 197 N.W. 885 (N.D. 1924). Massachusetts remains an exception to this trend, refusing to recognize innocent improvements as an "exceptional circumstance." See Brink v. Summers, 227 N.E.2d 476 (Mass. 1967); Beaudoin v. Sinodinos, 48 N.E.2d 19 (Mass. 1943).
286. See DUKEMINIER & KRIER, supra note 195, at 153; MERRILL & SMITH, supra note 108, at 55.
287. 35 U.S.C. § 101 (2005).
288. Id. § 154(a)(1) (emphasis added).
289. See 2 JOSEPH STORY, COMMENTARIES ON EQUITY JURISPRUDENCE AS ADMINISTERED IN ENGLAND AND AMERICA 612 (W.H. Lyon, Jr. ed., 14th ed. 1918) (1836) ("It is quite plain that if no other remedy could be given in cases of patents and copyrights than an action at law for damages, the inventor or author might be ruined by the necessity of perpetual litigation, without ever being able to have a final establishment of his rights.").
290. High, supra note 185, at 349; see also CHARLES STEWART DREWRY, A TREATISE ON THE LAW AND PRACTICE OF INJUNCTIONS 220, 223-24 (1841).
291. Kerr, supra note 188, at 296-97.
292. Simon Evans, Defending Discretionary Remedialism, 23 SYDNEY L. REV. 463, 463 (2001).
293. See Paul Finn, Equitable Doctrine and Discretion in Remedies, in RESTITUTION: PAST, PRESENT AND FUTURE 251 (W.R. Cornish et al. eds., 1998);
294. Darryn M. Jensen, The Rights and Wrongs of Discretionary Remedialism, 2003 SING. J. LEGAL STUD. 178;
295. Patricia Loughlan, No Right to the Remedy?: An Analysis of Judicial Discretion in the Imposition of Equitable Remedies, 17 MELB. U. L. REV. 132 (1989);
296. David Wright, Wrong and Remedy: A Sticky Relationship, 2001 SING. J. LEGAL STUD. 300.
297. Peter Birks is perhaps the most outspoken critic of discretionary remedialism. See Peter Birks, Three Kinds of Objection to Discretionary Remedialism, 29 W. AUST. L. REV. 1 (2000).
298. See Craig S. Summers, Remedies for Patent Infringement in the Federal Circuit - A Survey of the First Six Years, 29 IDEA 333, 337 (1988) ("Once infringement has been established, an injunction normally follows.").
299. The Court of Appeals for the Federal Circuit was established pursuant to the Federal Courts Improvement Act of 1982. Pub. L. No. 97-164, 96 Stat. 25. For a discussion of the tension between eBay and the general rule established by the Federal Circuit, see George M. Sirilla, William P. Atkins & Stephanie F. Goeller, Will eBay Bring Down the Curtain on Automatic Injunctions in Patent Cases?, 15 FED. CIR. B.J. 587 (2005).
300. See, e.g., Xerox Corp. v. 3Com Corp., 61 F. App'x 680, 685 (Fed. Cir. 2003) ("The important public needs that would justify the unusual step of denying injunctive relief, however, have typically been related to public health and safety."); Rite-Hite Corp. v. Kelley Co., 56 F.3d 1538, 1547-48 (Fed. Cir. 1995) (citing instances where the exception had previously been invoked).
301. See David B. Conrad, Note, Mining the Patent Thicket: The Supreme Court's Rejection of the Automatic Injunction Rule in eBay v. MercExchange, 26 REV. LITIG. 119, 121 (2007).
302. See Smith Int'l, Inc. v. Hughes Tool Co., 718 F.2d 1573, 1577-78 (Fed. Cir. 1983).
303. See, e.g., Richardson v. Suzuki Motor Co., 868 F.2d 1226, 1246-47 (Fed. Cir. 1989) ("Infringement having been established, it is contrary to the laws of property, of which the patent law partakes, to deny the patentee's right to exclude others from use of his property."); W.L. Gore & Assocs. v. Garlock, Inc., 842 F.2d 1275, 1281 (Fed. Cir. 1988) ("[A]n injunction should issue once infringement has been established unless there is a sufficient reason for denying it.").
304. 35 U.S.C. § 283 (2005) (emphasis added); see also Roche Prods., Inc. v. Bolar Pharm. Co., 733 F.2d 858, 865 (Fed. Cir. 1984) (emphasizing that section 283 made the issuance of an injunction discretionary).
305. This was part of the Patent Reform Act of 2005, H.R. 2795, 109th Cong. (2005). See Sirilla, Atkins & Goeller, supra note 207, at 588-89 n.5. The legislation was eventually unsuccessful.
306. 210 U.S. 405 (1908).
307. Id. at 430.
308. The Court additionally noted that "exclusion may be said to have been of the very essence of the right conferred by the patent, as it is the privilege of any owner of property to use or not use it, without question of motive." Id. at 429.
309. MercExchange, L.L.C. v. eBay, Inc., 275 F. Supp. 2d 695 (E.D. Va. 2003).
310. Id. at 710-15.
311. Id. at 713-14.
312. Id. at 712.
313. Id. at 712-13.
314. MercExchange, L.L.C. v. eBay, Inc., 401 F.3d 1323, 1339 (Fed. Cir. 2005).
315. Id. (emphasis added).
316. Id.
317. eBay, Inc. v. MercExchange, L.L.C., 546 U.S. 1029 (2005) (granting certiorari to hear the case).
318. Transcript of Oral Argument at 6, eBay, 126 S. Ct. 1837 (No. 05-130).
319. Id. at 33.
320. See Richard A. Epstein, The Structural Unity of Real and Intellectual Property, PROGRESS ON POINT, Release 13.24, Oct. 2006, at 5 (characterizing the opinion as having made "complete intellectual hash" out of the balancing test).
321. eBay, Inc. v. MercExchange, L.L.C., 126 S. Ct. 1837, 1841-43 (2006).
322. Id. at 1841.
323. Id. at 1841 (Roberts, C.J., concurring).
324. Id. at 1841-42.
325. Id. at 1842 (Kennedy, J., concurring).
326. Id. at 1842-43.
327. See, e.g., Transcript of Oral Argument at 25-26, eBay, 126 S. Ct. 1837 (No. 05-130).
328. eBay, 126 S. Ct. at 1842 (Kennedy, J., concurring).
329. 35 U.S.C. § 271(d)(4) (2005); see also Yee Wah Chin, Unilateral Technology Suppression: Appropriate Antitrust and Patent Law Remedies, 66 ANTITRUST L.J. 441 (1998);
330. Mark A. Lemley, The Economic Irrationality of the Patent Misuse Doctrine, 78 CAL. L. REV. 1599, 1623-25 (1990).
331. For an overview of the holdout problem in the context of transaction cost economics, see Richard A. Epstein, Holdouts, Externalities, and the Single Owner: One More Salute to Ronald Coase, 36 J.L. & ECON. 553 (1993).
332. eBay, 126 S. Ct. at 1840-41.
333. In an amicus brief filed by fifty-two intellectual property law professors in support of the petitioners' position in eBay, the argument was made that such a hierarchy was well-established in the cases of real and chattel property as well. As they observed: Courts apply the traditional principles of equity to real and personal property, and consider such factors as adequate remedy at law, the balance of hardships to the parties, and the public interest in deciding whether to grant an injunction. . . . Courts regularly award damages rather than injunctive relief against invasion of real property when the circumstances warrant. Brief Amici Curiae of 52 Intellectual Property Professors in Support of Petitioners at 4, eBay Inc. v. MercExchange, L.C.C., 126 S. Ct. 1837 (2006) (No. 05-130), 2006 WL 1785363. For a foreword to the brief, published later, see Robert P. Merges, Introductory Note to Brief of Amicus Curiae in eBay v. MercExchange, 21 BERKELEY TECH. L.J. 997 (2006). Interestingly, another brief filed by various law and economics professors in support of the respondents' position points out that the above-stated position was based on a misunderstanding and overreading of the law. See Brief of Various Law & Economics Professors as Amici Curiae in Support of Respondent at 10-11, eBay v. MercExchange, 126 S. Ct. 1837 (2006) (No. 05-130), 2006 WL 639164.
334. eBay, 126 S. Ct. at 1839.
335. Id.
336. See id. The cases cited were Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982), which involved the issuance of an injunction to restrain water pollution, and Amoco Production Company v. Gambell, 480 U.S. 531 (1987), which involved an injunction for noncompliance with a statute aimed at preserving lands in Alaska.
337. See EDWARD YORIO, CONTRACT ENFORCEMENT: SPECIFIC PERFORMANCE AND INJUNCTIONS 41 (1989); see also Kronman, supra note 139, at 351;
338. Thomas S. Ulen, The Efficiency of Specific Performance: Toward a Unified Theory of Contract Remedies, 83 MICH. L. REV. 341, 366-67 (1984).
339. See, e.g., Daniel Friedmann, The Efficient Breach Fallacy, 18 J. LEGAL STUD. 1, 13-14 (1989) (speaking of "efficient appropriations" and "efficient theft");
340. Ian R. Macneil, Efficient Breach of Contract: Circles in the Sky, 68 VA. L. REV. 947, 963-64 (1982) (noting the efficient theft argument).
341. See Lee Anne Fennell, Efficient Trespass: The Case for "Bad Faith" Adverse Possession, 100 NW. U. L. REV. 1037 (2006).
342. Id. at 1081 n.164 ("It bears emphasis that I am not advocating a generalized normative theory of 'efficient theft.'"). For a more recent attempt, however, see Stewart E. Sterk, Property Rules, Liability Rules, and Uncertainty About Property Rights, 106 MICH. L. REV. (forthcoming 2008) (manuscript at 3) (arguing that courts should look to the "costs and social value" involved in obtaining additional information about property rights in choosing between property and liability rule protection).
343. For more on this idea and its pros and cons, see Robert P. Merges, Of Property Rules, Coase, and Intellectual Property, 94 COLUM. L. REV. 2655 (1994),
344. and Julie S. Turner, Comment, The Nonmanufacturing Patent Owner: Toward a Theory of Efficient Infringement, 86 CAL. L. REV. 179 (1998).
345. 35 U.S.C. § 271(d) (2005) ("No patent owner otherwise entitled to relief for infringement or contributory infringement of a patent shall be denied relief or deemed guilty of misuse or illegal extension of the patent right by reason of his having done one or more of the following: . . . (4) refused to license or use any rights to the patent . . . ."). Indeed, this affirmatively establishes the nonexistence of a duty to use the patented invention at all - a principle that even before codification had been established in case law. See Herbert Hovenkamp, Mark D. Janis & Mark A. Lemley, Unilateral Refusals to License, 2 J. COMPETITION L. & ECON. 1, 2-3 (2006).
346. See, e.g., Jacque v. Steenberg Homes, Inc., 563 N.W.2d 154 (Wis. 1997) (involving a landowner who sought to prevent defendant from traversing unused field to get to the other side, even though it was the shortest possible route and would not have interfered with the owner's actual use).
347. See Merrill & Smith, supra note 158, at 54-55.
348. See Merrill & Smith, supra note 2.
349. See, e.g., Rose, supra note 1, at 604 (characterizing the right to exclude and the "Exclusivity Axiom" as a trope).