Henry E. Smith

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In many areas of the law, the notion of context is more important than ever. The realists and their successors tirelessly have pointed out how older, more "conceptualistic" or "formalistic" modes of legal thinking and interpretation obscure the richer reality to which law should respond. Property is one of the main battlegrounds in this struggle. The conventional wisdom that emerged over the course of the twentieth century holds that we should concern ourselves with entitlements-arbitrary bundles of rights, privileges, and the like-and whether we attach the label "property" to any given bundle is a choice that is likewise arbitrary. As long as these choices are arbitrary, entitlements can be designed at will, to any degree of specificity, to further the policymaker's ends. No longer can the owner of Blackacre claim with much force that ownership entails the right to use the resource without interference. As long as the ownership of Blackacre is a bundle of sticks, any given right-say the right to exclude others from a beach-can just as easily be assimilated to anyone's bundle as to the owner's. Thus, the idea that a property right is a right to a thing that avails against the world has been replaced with the idea that a property right is only one possible entitlement plucked from a wide range of equally privileged results.

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