Roam If You Want To?

18 / Regulation / SPRING 2017 PROPERTY ROAM IF YOU WANT TO? Some argue that property rights should not include the right to exclude interlopers. ✒ BY JONATHAN KLICK AND GIDEON PARCHOMOVSKY et off my lawn,” snarls Clint Eastwood as he forgoes shooting a fertile female to aid in the replenishment “ he looks down the barrel of his M1 rifle of the stock, surely another hunter coming after him will not in Gran Torino. It would be hard to pack similarly pass up the chance. However, aN owner with the ability to more America into a single movie scene. exclude individuals from using his land will have incentive to limit However, whether it makes sense to have the amount of hunting that occurs, husbanding the resources in Gthe right to exclude interlopers from your the most sensible way. By selling permits and placing limitations property is increasingly being called into on which animals can be hunted, the owner will maximize the question. In aN April 23, 2016 op-ed in the New York Times titled, value of his asset. “This Is Our Country. Let’s Walk It,” backpacking enthusiast and Similarly, if the owner’s property is attractive to those wish- author KeN Ilgunas suggests that, prior to the late 19th century, ing to hike through it, aN inability to restrict entry might lead Americans enjoyed a de facto right to roam on private land. to crowds that reduce everyone’s enjoyment, not to mention Invoking recent legal changes in the United Kingdom as well as degradation of the property itself. With the right to exclude, the longstanding rights in Scandinavia, he concludes: “Something owner has the ability to limit congestion through entrance fees, as innocent and wholesome as a walk in the woods shouldn’t be raising prices to the point where the value of the asset is maxi- considered illegal or intrusive. Walking across the so-called freest mized. Further, in such a case the owner might be induced to use country on earth should be every person’s right.” some of his revenue to improve the property in order to further increase value. If the owner happens to place a particularly high LAW & ECONOMICS OF PROPERTY value on privacy and solitude, he will set prices accordingly, such The right to exclude others has long been seen as the central that he only allows visitors if their implicit valuations exceed attribute of private property. The economist Harold Demsetz the cost represented by his loss of quietude. Without aN ability long ago pointed out that the right to exclude others is what to exclude, losses to peace-loving owners will go largely ignored. gives the owner of a property the ability to internalize the costs Outside of economics, many legal thinkers have likewise indi- and benefits arising from its use. In so doing, the owner has the cated that exclusion is the central element of property. In one of incentive to maximize the property’s value in a way that would the most famous sentences in the history of property law, William be very difficult without exclusion. The right to exclude, in Dem- Blackstone described property as “that sole and despotic domin- setz’s conception, does not necessarily eliminate or minimize the ion which one man claims and exercises over the external things use of the property by non-owners, but rather it gives the owner of the world, in total exclusion of the right of aNy other individual the ability to manage the use of the resource optimally. in the universe.” Importantly, in this statement Blackstone did For example, a landowner who cannot stop hunters from pur- not advance aN original conception of property. Nor was it a suing game on his property may soon find the levels of valuable normative statement. Rather, his comment was descriptive. It animals driven to zero. Any single outside hunter has very little accurately reflected the property conception that prevailed among incentive to worry about the sustainability of the animal stock. If legal thinkers in the 18th century. JONATHAN KLICK and GIDEON PARCHOMOVSKY are professors in the University Today, renowned legal scholars likewise recognize the centrality of Pennsylvania Law School. This article is based on their forthcoming article, “The of exclusion. Harvard law professor Henry Smith, in individual Value of the Right to Exclude: An Empirical Assessment,” University of Pennsylvania Law Review 165 (2017). work and joint work with his colleague Thomas Merrill from SPRING 2017 / Regulation / 19 Columbia Law School, emphasizes the information cost advan- but they will be undertaken nonetheless. The state, by enacting a tages of a property law focused on exclusion rights. In keeping right to exclude, can perhaps protect owners more cost effectively. with this insight, Smith notes that property is “the law of things.” It makes sense for property law to take advantage of the clear and QUESTIONING THE RIGHT TO EXCLUDE well-defined boundaries of things, or assets, as a mechanism for A group of scholars carrying the mantle of “progressive prop- communicating information to third parties as to their duties and erty” have raised objections to this purportedly reductionist liberties in their interactions with property owners. If aN owner view of the importance of exclusion with respect to maximizing says that a third party may not use his property, courts or other the social value of property and the administration of property regulators do not need to engage in complicated analyses to deter- law. In their view, the use of property “implicates plural and mine the contextual rights of the non-owner. The determination incommensurable values,” according to Cornell law professor of the owner’s wishes is all that matters, leaving a system with a Gregory Alexander and co-authors’ 2009 Cornell Law Review high degree of certainty for all involved. article, “A Statement of Progressive Property.” An owner’s value Harvard law professor Steven Shavell offers a different effi- of privacy and seclusion cannot be easily compared to another ciency-based justification for the right to exclude. He observes that individual’s use value, which may be crucial for that non-own- OCK ST in the absence of a right to exclude, possessors of assets would er’s flourishing as a human. devote considerable resources to protect their property from Writers in this movement note that access to nature is often THINK : intruders or to otherwise discourage the intrusions to begin with. essential to both physical and mental health. However, this access TO PHO Such expenditures are purely wasteful from society’s perspective, typically is difficult if not impossible for those who do not owN 20 / Regulation / SPRING 2017 PROPERTY property. Unequal distribution of ownership will lead to unequal was added in 2009 with the enactment of the Marine and Coastal opportunities to flourish. Additionally, many in the progressive Access Bill of 2009 and extended the right to roam to a “coastal property movement believe exclusion rights interfere with the margin” in order to form a trail of over 2,700 miles along the interactions among individuals that are necessary for the social English coast. Overall, the public right of access covers 3.4 million life that is important in a democracy. acres (between 8% and 12% of the total amount of land) in some Even among some more economically minded property theo- of the best hiking areas in England and Wales. rists, exclusion rights have been questioned. Columbia law profes- The right to roam is subject to several limitations. First, the sor Michael Heller coined the phrase “Tragedy of the Anticom- right does not apply to freshwater bodies such as rivers, streams, mons” to describe situations wherein aN excess of strong exclusion and lakes. Second, the act excludes cultivated agricultural areas. rights can destroy social value. For example, even if individuals Third, the act specifically exempts sports fields such as golf courses, placed very high value on accessing land through which they race courses, and aerodromes. Fourth, the act provides that the wished to hike (indeed, even if the value were many times greater right does not extend to “land within 20 meters [60 feet] of a thaN the subjective cost borne by the land’s owner as a result of dwelling,” as well as parks and gardens, thereby creating a “privacy their intrusion), if the desired hiking path required accessing mul- zone” for landowners in the ground adjacent to their homes. Fifth, tiple properties held by different owners, each owner may have the the right to roam in England and Wales permits only access on incentive to attempt to extract all of the hikers’ value for himself foot for recreational purposes. Other recreational activities such through his access fee, leading the hikers to abandon their trek as cycling, horseback riding, skiing, camping, hunting, boating, rather thaN pay out the full value they would have gotten to each bathing, and the lighting of campfires are forbidden. In addition, of multiple landholders. The intuition of the anticommons idea hikers are required to not cause property damage and to respect is that the greater the number of individual owners with exclu- walls, gates, fences, stiles, and hedges. They are also expected to sion rights over inputs necessary to create a particular output, protect plants and animals and not to litter. the more intractable holdout problems become. Thus, exclusion Landowners, for their part, are obliged to give the public free rights, rather thaN being what allow owners to maximize the access to their properties if they are subject to the right to roam. social value of their property, may end up becoming the main In keeping with this obligation, owners must ensure that all rights impediment to the creation of social value.

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