Exclusion and Exclusivity in Gridlock

This Essay reviews Michael Heller’s book *The Gridlock Economy*, focusing especially on its conceptual priors. The book assumes as true the conception that follows from Calabresi and Melamed’s Cathedral framework, whereby property consists of a right to exclude others and invasions of the right to exclude may be remedied by a property rule. This definition departs significantly from the conception of property that informs social practice and private law, whereby property consists of a normative interest in determining exclusively the use of an external asset. These differences lead *The Gridlock Economy* to make several conceptual and normative errors. In some cases (Moscow storefronts and Rhenish tolls), the book criticizes legal institutions for having too much property when in fact the problematic institutions do not actually institute property relations. In other cases (cotenancy partition and airplane overflights), the book criticizes legal institutions for creating too much property when in fact existing law already scales property’s exclusivity to its tendency to encourage the free and concurrent use of the propertized asset. And in some cases (redevelopment and private eminent domain), the book favors ad hoc government administration of property disputes without being sensitive enough to the roles that moral socialization and respect for owner free action ordinarily play in property law.

Essay | View PDF | Appears in Volume 53, Issue 1

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