Demystifying the Right to Exclude: Of Property, Inviolability, and Automatic Injunctions

The right to exclude has long been considered a central component of property. In focusing on the element of exclusion, courts and scholars have paid little attention to what an owner's right to exclude means and the forms in which this right might manifest itself in actual property practice. For some time now, the right to exclude has come to be understood as nothing but an entitlement to injunctive relief--that whenever an owner successfully establishes title and an interference with the same, an injunction will automatically follow. Such a view attributes to the right a distinctively consequentialist meaning, which calls into question the salience of property outside of its enforcement context. Yet, in its recent decision in eBay Inc. v. MercExchange, L.L.C., the Supreme Court rejected this consequentialist interpretation, declaring unequivocally that the right to exclude did not mean a right to an injunction. This Article argues that eBay's negative declaration sheds light on what the right has really meant all along--the correlative of a duty imposed on non-owners (the world at large) to keep away from an ownable resource. This duty (of exclusion) in turn derives from the norm of inviolability, a defining feature of social existence, and accounts for the primacy of the right to exclude in property discourses. This understanding is at once both non-consequentialist and of deep functional relevance to the institution of property. INTRODUCTION I. CONCEPTUALIZING THE RIGHT TO EXCLUDE: A TAXONOMY A. Three Models of Analysis 1. The Right-Privilege Distinction 2. The Two-Tiered Structure of Rights (and Duties) 3. The Entitlement Framework B. Possible Formulations of the Right to Exclude 1. The Claim-Right to Exclude 2. The Privilege-Right to Exclude 3. Remedial Rights to Exclude a. The Vindicatory Right b. The Right to Exclusionary Relief C. Unitary, Bundled, or Disaggregative? II. THE CORRELATIVE RIGHT TO EXCLUDE: GROUNDING PROPERTY IN SOCIAL MORALITY A. The Right to Exclude as a Moral Norm 1. The Principle of Inviolability 2. Inviolability in Practice 3. Inviolability Manifested Through the Right to Exclude 4. Simulations and Extensions: Intangibles B. The Analogy to Contract's Performance Right 1. The Contractual Right of Performance as a Moral Right 2. Enforcing the Promise: The Specific Performance Riddle C. Toward a Pragmatic Conceptualism of Property III. THE REMEDIAL VARIANT: EXCLUSIONARY RELIEF AS A RIGHT A. The Traditional Test and the Right to an Injunction 1. Real Property: Injunctions Restraining Acts of Trespass 2. Injunctions Restraining Patent Infringement B. Unlinking Right and Remedy: Understanding eBay 1. The Automatic Injunction Rule 2. The Supreme Court and the Automatic Injunction 3. The End of Automatic Injunctions: Intellectual Property and Beyond 4. Moving to Efficient Infringement (and Trespass?) CONCLUSION "The notion of property ... consists in the right to exclude others from interference with the more or less free doing with it as one wills." --Justice Holmes in White-Smith Music Publishing Co. v. Apollo Co., 209 U.S. 1, 19 (1908) (concurring). "The power to exclude has traditionally been considered one of the most treasured strands in an owner's bundle of property rights." --Justice Marshall in Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435 (1982). "[T]he creation of a right [to exclude] is distinct from the provision of remedies for violations of that right." --Justice Thomas in eBay Inc. v. …