Rule of (Out)law: Property’s Contingent Right to Exclude

This Response attempts to explain why Peñalver and Katyal’s “property outlaws” so successfully violate property owners’ exclusion rights when the right to exclude is seen “as property law’s most important or defining right.” Professor Glazer concludes that “the outlaw tells us[] that an owner cannot invoke [the right to exclude] if she wishes to invoke it in isolation. . . .” She believes that the right to exclude is only absolute “so long as its exercise is coupled with the exercise of another right in the property bundle.”

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