Eric R. Claeys


This Review Essay has two aims. My more immediate aim is to assess where Merrill and Smith's contribution fits in the market for first-year Property casebooks. In short, Property: Principles and Policies represents an important advance in property pedagogy. By focusing thematically on exclusion's efficiency, Merrill and Smith have captured many important features of property overlooked by other casebooks. My longer-range aim is to advance the reclamation project Merrill and Smith have begun, by clarifying further the work that exclusivity does in property law. Property: Principles and Policies brings contemporary scholarship a long way toward appreciating the virtues of exclusivity, but there is still a long way to go. Merrill and Smith conceive of property at its core as a right to exclude others from a thing. Others of us sympathetic to property's exclusive tendencies prefer to conceive of property as a right exclusively to determine a thing's use.