The Right to Include

ABSTRACTRecent scholarship has created renewed interest in the "right to exclude." Many contend that, because owners have a right to exclude, private property has a tendency to promote individualism and exclusion. But, as I will argue, property can promote sociability and inclusion by providing owners with various ways of including others. Owners can assert their "right to include" by waiving exclusion rights, dividing existing rights by contracts or property forms, and creating new co-ownership arrangements. Inclusion is socially beneficial insofar as it enables sharing and exchange, facilitates financing and risk-spreading, and promotes specialization. Yet inclusion may entail costs, including coordination difficulties, strategic behavior, and conflicts over use. To mitigate such costs, the law authorizes not only informal and contractual inclusion but also inclusion through various forms of property like easements, leases, and trusts. By providing owners with a range of options by which to include others, these forms help to ensure that an owner's private incentive to include converges with the socially optimal level of inclusion. Each form not only binds third parties but also provides owners and those they may include with a unique mixture of anti-opportunism devices, such as mandatory rules, fiduciary duties, and supracompensatory remedies. Understanding how the law promotes the social use of property provides insights into debates over the property/contract interface, numerus clausus, and the right to exclude itself.INTRODUCTIONThis Article contends that the ability of owners to "include" others in their property is a central attribute of ownership and fundamental to any system of private property. Too easily overlooked in debates about the right to exclude, or the rights of others to be included, is that owners frequently include others in the use, possession, and enjoyment of their property. The ability to include others-by waiving the right to exclude, dividing existing rights by contract or recognized forms of property, or creating new rights and forms-is critical for coordinating economic activities and organizing social relationships.Owners include others in different ways, with different legal implications. Much inclusion is informal, e.g., a dinner invitation or a gratuitous license, in which an owner decides not to enforce or to waive the right to exclude. With informal inclusion, social norms, rather than law, usually govern the parties' interactions. Inclusion also may be contractual, e.g., an agreement not to withdraw a waiver or license. With contractual inclusion, the parties have legal remedies, typically damages, if the owner breaches by revoking a waiver or if the nonowner breaches by exceeding the scope of a license. In addition to waiving exclusion informally or contractually, owners may rely on property forms that facilitate inclusion. With proprietary inclusion, each form not only binds third parties to a particular division of property but also provides the original parties with a unique mixture of anti-opportunism devices, such as mandatory rules, fiduciary duties, and supracompensatory remedies.In the absence of contracts or property forms, an owner's private incentive to include others might be socially suboptimal. Although some types of inclusion might still occur, parties would include others too little, fearful of opportunism and conflicts over use. To combat such fears and increase cooperation, the law authorizes formal devices like contracts and recognized forms of property by which owners may include others. As a result, both contracts and property forms can function as assurance mechanisms, minimizing the risk of strategic behavior and conflicts over use.This Article contends that, due to the risk of opportunistic behavior, a proliferation of forms helps to ensure that the private incentive to include others converges with the socially optimal level of inclusion. …