This paper challenges the malleability of the idea of property as a relative, indeterminate "bundle of rights", which appears to dominate property doctrine at least since Ronald Coase's "The Problem of Social Cost". Focusing on the core goals of property regimes, the paper proposes an alternative view of property rights - one that is centered on the ability of owners to appropriate the benefits of their assets in the face of a threat from numerous potential adversaries, rather than their ability to contract such assets away within a bilateral context. This appropriability problem, it is argued, is a defining concept of private property regimes; it is not just one of many problems underlying private property, but rather the systemic problem that underlies property regimes, defines them and should serve as the measuring stick by which they should be assessed. The paper demonstrates how the shift to a multilateral, appropriability-based analysis allows for a fuller account of what must be the "core" or "baseline" of property rights. Using this account, the paper offers an evaluation of the relationship between such "core" rights and other types of rights traditionally associated with property doctrine, such as rights that have historically been granted to owners under the guise of property rights, contractual rights vis-a-vis third parties and constitutional rights against the public at large.

Recommended Citation

Even, Yonatan. “Appropriability and Property.” American University Law Review 58, no. 6 (August 2009): 1417-1476.