Property: A Bundle of Sticks or a Tree?
PDF · Anna di Robilant · Apr-29-2013 · 66 Vand. L. Rev. 869 (2013)
In the United States, property debates revolve around two conceptual models of property: the ownership model, originally developed in Europe and now revisited by information theorists and classical-liberal theorists of property, and the bundle of rights model, developed in the United States by Hohfeld and the realists. This Article retrieves an alternative concept of property, the tree concept. The tree concept was developed by European property scholars between 1900 and the 1950s as part of Europe’s own realist moment. It envisions property as a tree: the trunk representing the owner’s right to govern the use of a resource, and the branches representing the many resource-specific property regimes present in modern legal systems (family property, agricultural property, affordable housing property, intellectual property, etc.). This Article argues that the tree concept of property provides a descriptively more accurate and normatively richer account of property than the two currently dominant models.