Table of Contents

TABLE OF CONTENTS

CHAPTER 1
The Institution of Property 3
Exclusion and the Bundle of Rights 6
The Thing's the Thing 11
General Justifications, General Concerns 14
Further Reading 20

CHAPTER 2
Original Acquisition and the Scope of Property Claims 21
First Possession 22
Discovery and Creation 28
Accession 35
Adverse Possession 39
Sequential Possession, Finders, and the Relativity of Title 45
The Mosaic of Acquisition Principles 46
Further Reading 47

CHAPTER 3
The Domain of Property 49
The Demsetz Theory 49
Personhood Constraints 57
Inherently Public Property 62
Hybrid Resources 66
Further Reading 71

CHAPTER 4
Owners as Gatekeepers 73
Laws for Owner Protection 74
Self-Help 79
Exceptions to the Right to Exclude 83
Owner Powers 93
Further Reading 103

CHAPTER 5
Dividing Property Rights 105
Estates and Future Interests 105
How the System Works 116
Co-Ownership 126
Marital Interests 131
Further Reading 135

CHAPTER 6
Managing Property 137
Why Separate Management Authority from Other Incidents of Ownership? 139
Leasing 144
Common Interest Communities 160
Trusts 167
Further Reading 171

CHAPTER 7
Land Transactions and Title Records 173
Land Sale Contracts 173
Title Records 181
Mortgages 192
Further Reading 198

CHAPTER 8
Neighbors and Neighborhood Effects 199
The Coase Theorem 201
Tort Liability: Nuisance 208
Modification of Property Rights: Easements 217
Contract: Covenants Running with the Land 225
Further Reading 240

CHAPTER 9
Government Forbearance 243
The General Form of the Problem 244
Sources of Forbearance 249
The Rule of Law. 253
Explicit Takings 262
Regulatory Takings 272
Further Reading 280

About the Author

Thomas W. Merrill is a professor of law at Columbia Law School, where he teaches in the areas of property, environmental law, natural resources, administrative law, and legislation. After graduating from Grinnell College and Oxford University, he received his J.D. from the University of Chicago, and then clerked for the Hon. David Bazelon, U.S. Court of Appeals for the D.C. Circuit, and the Hon. Harry Blackmun, U.S. Supreme Court. From 1987-1990
he served as Deputy Solicitor General, U.S. Department of Justice. He began his academic career at the Northwestern University School of Law and has also taught at the Yale Law School. His publications include Property:
Principles and Policies (with Henry E. Smith, Foundation 2007), and Property: Takings (with David Dana, Foundation 2002). He is, in addition, the author of more than 75 academic articles on property, environmental law, administrative law, constitutional law, and the Supreme Court.

Henry E. Smith is Fessenden Professor of Law at Harvard Law School, where he directs the Project on the Foundations of Private Law and teaches in the areas of property, intellectual property, natural resources, remedies, and taxation. After receiving an A.B. from Harvard, a Ph.D. in Linguistics from Stanford, and a J.D. from Yale, he clerked for the Hon. Ralph K. Winter, U.S. Court of Appeals for the Second Circuit, taught at the Northwestern University School of Law, and was
the Fred A. Johnston Professor of Property and Environmental Law at Yale Law School. He has written primarily on the law and economics of property and intellectual property. His publications include Property: Principles
and Policies (with Thomas W. Merrill, Foundation 2007), The Privilege Against Self-Incrimination: Its Origins and Development (with R.H. Helmholz et al., Chicago 1997); Restrictiveness in Case Theory (Cambridge studies in linguistics no. 78, 1996). He is the co-editor of the Research Handbook on the Economics of Property Law (with Kenneth Ayotte, forthcoming 2009).

Reviews

"Merrill and Smith, both renowned scholars of property law, apply an accessible theoretical framework to illuminate principles that govern the resolution of disputes over resources. This sunlight brings ancient-and, in some instances, superficially musty-doctrines to life."
--Robert Ellickson
Walter E. Meyer Professor of Property and Urban Law, Yale Law School
"Merrill and Smith's book is nothing short of a marvel. It gives shape and direction to a field often considered to be diffuse and unmanageable. This volume is full of ideas that enliven all aspects of property law, showing the reader why these topics are interesting and topical."
--Carol M. Rose
Lohse Chair in Water and Natural Resources, The University of Arizona James E. Rogers College of Law