1. For a recent statement, see Lee, Pey-Woan, Inducing Breach of Contract, Conversion and Contract as Property, 29 Oxford J. Legal Stud.511, 514 (2009) (denying that property features “a singular coherent concept”)Google Scholar. See also Joseph William Singer, Entitlement: The Paradoxes of Property 7 (2000) (discarding ownership “as an organizing category.”).

2. See, e.g., Jeremy Waldron, The Right to Private Property (1988); J.E. Penner, The Idea of Property in Law (1997); Weinrib, Ernest J., Poverty and Property in Kant's System of Rights, 78 Notre Dame L. Rev.795 (2003)Google Scholar; Merrill, Thomas W. & Smith, Henry E., The Morality of Property, 48 Wm. & Mary L. Rev.1849 (2007)Google Scholar; Arthur Ripstein, Force and Freedom: Kant's Legal and Political Philosophy 86–106 (2009).

3. Perhaps another way out, which is not considered in these pages, is offered by James Harris, who claims that ownership is the organizing principle of property institutions. James W. Harris, Property and Justice 5 (1996). Some of my critique against the exclusive-use account may be relevant to Harris's impressive work, though I leave this for another occasion. The reason for not addressing his account directly at present is in part because Harris asserts that “any attempt to articulate a single conception of ownership . . . would be hopeless.” Id. at 75. Indirectly, of course, my ambition to develop an idea of private ownership may address Harris's skepticism concerning what he takes to be the “open-ended character” of ownership. Id. at 76.

4. In place of skepticism and legal realism, the approach I marshal gives special emphasis to the form that private ownership takes, as opposed to the functions it may serve. While I do not seek to revive the Langdellian sort of legal formalism, taking form seriously, as I argue below, is necessary for an adequate articulation of the idea of private ownership.

5. I explain my usage of normative (in normative standing) in text accompanying note 47.

6. On the centrality of possession in property law, see Section III.A.

7. It is important to note, to forestall misunderstanding, that the conception of agency I invoke in the main text above is a normative one. A normative conception of agency picks out the authority of owners to fix the rights and duties that nonowners may have in relation to objects. This conception of agency should not be confused with a functional conception of agency. On the functional conception of agency, the owner holds the superior power to determine the uses, agendas, purposes, or functions of an object, not necessarily the rights and duties of other persons (the nonowners). I elaborate on this distinction in text accompanying notes 56–60. I borrow the terminology of agents and patients but not the theory or methodology, from Markovits, Daniel, How Much Redistribution Should There Be?, 112 Yale L.J.2291, 2295 (2003)Google Scholar.

8. See Benjamin C. Zipursky, Philosophy of Private Law, in The Oxford Handbook of Jurisprudence and Philosophy of Law 623, 632–636, esp. 635 (Jules Coleman & Scott Shapiro eds., 2002) (“The notion that a plaintiff is entitled to a right of action is . . . centrally important to the idea of private law.”). Note that my insistence in the main text on the private-law form of private ownership is not meant to deny that some public-law protection of ownership is impossible, unwarranted, or even unnecessary. The point is that the private-law form is an ineliminable aspect of viewing private owners as agents.

9. Although as I note below, this has not always been the case. See Section III.B.

10. See Section IV.

11. See, e.g., Bruce A. Ackerman, Private Property and the Constitution (1977) (distinguishing between the standpoints of ordinary observer and scientific policymaker); Stephen R. Munzer, A Theory of Property 16 (1990) (contrasting popular with scientific conceptions of property); Carol M. Rose, Property and Persuasion: Essays on the History, Theory, and Rhetoric of Ownership 1 (1994) (casting the everyday meaning of ownership in terms of an exclusive right to a thing).

12. 2 William Blackstone, Commentaries on the Law of England *105 (1979) (1766). The quoted excerpts appear in Blackstone's discussion of fee simple. There Blackstone aims to show that this kind of estate is recognized as private ownership by the common law. It is important to note that at other places in his Commentaries, Blackstone does distinguish clearly between possession and what he often calls right of property. See, e.g., 3 id. at *190–191. It is beyond the purpose of my argument to adjudicate beyond the conflicting accounts of ownership in the Commentaries.

13. For a celebrated account, see Fredrick Pollock & Robert S Wright, An Essay on Possession in the Common Law pts. I–II (1888). For the distinction between relative and absolute ownership, between common-law and Roman-law views of ownership, see H.F. Jolowicz & Barry Nicholas, Historical Introduction to the Study of Roman Law 145–166 (3d ed. 1972).

14. The argument in the main text focuses almost exclusively on the common-law principles, doctrines, and materials pertaining to possession. However, legal protection of possession as such, including factual possession, was familiar in the Roman-law system as well, despite the (disputable) fact that it embraced an absolutist view of ownership rights. See Peter Birks, The Roman Law Concept of Dominium and the Idea of Absolute Ownership, 1985 Acta Juridica 1, 29 (noting that “the protection of possession went on without reference to entitlement: to be a protected possessor was no indication of the rightfulness of possession.”); see also id. at 29–31 (the Romanist concept of ownership, despite its absolutist nature, admitted relative protection of possession as such). Cf. Jolowicz & Nicholas, supra note 13, at 146–155, 259 (arguing, against Max Kaser's theory of relative ownership, that Romanist ownership law was absolute, meanwhile finding that possession “without reference to its rightfulness or wrongfulness” received legal protection through possessory interdicts).

15. John Rawls, A Theory of Justice 508 (1971) (employing the notion of range property in the context of singling out the natural capacities of persons that make them worthy of equal justice).

16. See generally D.R. Harris, The Concept of Possession in English Law, in Oxford Essays in Jurisprudence 69, 73 (A.G. Guest ed., 1961).

17. Oliver Wendell Holmes Jr., The Common Law 246 (1881).

18. See, e.g., Ploof v. Putnam 71 A. 188 (Vt. 1908) (private necessity); Restatement (Second) of Torts § 196 (1965) (public necessity); McKee v. Gratz, 260 U.S. 127, 136 (1922) (customary limitations on the right to exclude); Countryside and Rights of Way Act 2000 (a limited right to ramble around uncultivated private land across England and Wales); Dan B. Dobbs, The Law of Torts § 76, at 173 (2000) (authority to enter the land of another to make arrests). Of course this is only a partial list. For the proposition that the Romanist idea of ownership, although absolute on its face, “was not, strictly, absolute,” see Birks, supra note 14, at 1.

19. See Penner, supra note 2, at 72; Smith, Henry E., Exclusion and Property Rules in the Law of Nuisance, 90 Va. L. Rev.965, 992 (2004)Google Scholar.

20. See, e.g., Dobbs, supra note 18, at 102–103.

21. See, e.g., W. Page Keeton et al., Prosser and Keeton on the Law of Torts 78 (5th ed. 1984).

22. For a standard account to this effect, see E.H. Burns, Modern Law of Real Property 26 (16th ed. 2000). For a historical account in this spirit, see S.F.C. Milsom, Historical Foundations of the Common Law 119 (2d ed. 1981).

23. The relevant passage reads:

John G. Fleming, The Law of Torts 49 (8th ed. 1992). But see James Gordley, The Foundations of Private Law 49–65 (2006) (denying the historical truth of the possessory account of ownership).

24. I say not necessarily the best in recognition of cases such as adverse possession, according to which mere possession may defeat title. Adverse possession is certainly not alone in qualifying ownership's strength as a claim for the better right to possession.

25. The familiar adage according to which “possession is the root of title” is but one reminder (in the area of original occupancy) of the relationship between ownership and possession.

26. It is important to note, before moving to the next stage of the argument, that my argument—viz., that the exclusive-use account explains what ownership is solely in terms of possession and therefore explains it away—does not turn on the normative considerations in favor of protecting the exclusive use of possessors. Certainly, the reasons for sustaining the right to exclusive use by owners may be entirely different from the reasons for protecting a similar right in the case of nonowners (either wrongful or rightful possessors). The relativity of possessory interests reflects this reality. However, insofar as these considerations, in the case of ownership, are cashed out in terms of legal protection of exclusive use, ownership becomes an instance of possession and so its explanation (rather than justification) is made by reference to the concept of possession.

27. By normative relations I mean a form of human connection established through legal or moral rights and obligations (and norms more generally) rather than merely social relations.

28. A substantially similar approach has been adopted in New Zealand with respect to personal injuries. For an overview, see Palmer, Geoffrey, New Zealand's Accident Compensation Scheme: Twenty Years On, 44 U. Toronto L.J.223 (1994)Google Scholar.

29. I say more about the legal authority characteristic of owners below.

30. See Katz, Larissa, Exclusion and Exclusivity in Property Law, 58 U. Toronto L.J.275, 281 (2008) (noting that on the exclusive-use accountGoogle Scholar, “[o]wnership . . . is the product of a norm that protects the boundaries around an object so as to exclude the whole world but the owner.”).

31. Katz further observes that the conceptual center of the exclusive-use theory is the elaboration of “a general duty not to cross over the boundaries of objects one does not own.” Id. at 277. As I note below, it is an open question whether Katz's account overcomes her own critique of the exclusive-use account.

32. Penner, supra note 2, at 27.

33. Merrill, Thomas & Smith, Henry E., The Property/Contract Interface, 101 Colum. L. Rev.773, 789 (2001)Google Scholar.

34. As a preeminent historian of the common law observes, in the early lawsuits for wrongs (such as trespass) “the essence of the victim's role in such proceedings lay not in their initiation, as has been supposed, but in making the proof. He was a witness.” Milsom, supra note 22, at 285.

35. In the Manifesto of the Communist Party Marx and Engels boldly assert that “the theory of the communists may be summed up in the single sentence: Abolition of private property.” Karl Marx & Friedrich Engels, Manifesto of the Communist Party, in Karl Marx: Selected Writings 232 (David McLellan ed., 1977).

36. See 2 Blackstone, supra note 12, at *384ff (“Under the name of things personal are included all sorts of things movable, which may attend a man's person wherever he goes.”)

37. Moreover, personal property in the Marxian sense is not the same as personal property in the justification of private ownership made familiar in Radin, Margaret Jane, Property and Personhood, 34 Stan. L. Rev.957 (1982)Google Scholar. The former is predicated upon the nonmarket economic value, whereas the other is predicated upon the object's contribution to the ethical and psychological development of its owner.

38. The analysis in the main text is my reconstruction of the Marxian distinction between use value and exchange value; it is by no means an attempted exegesis of his work. My reconstruction draws on Marx, Theories of Surplus Value, and Marx, Capital, especially Part VIII of vol. I. It rejects the orthodox approach according to which the distinction in question is meant to capture the divide between nonproductive (e.g., a toothbrush) and productive objects (e.g., a steel factory). As I explain in the main text above, even one's toothbrush has an exchange value. Moreover, a steel factory can fall within the category of objects of use value, say, if it is family-run and its output is put to use in the farm of this same family.

39. For the proposition that the Soviet Union adopted the Marxian distinction between private and personal property, see M. Tsunts, I. Furman & S. Yezerskaya, Personal Property in the Soviet Union 11 (S. Smith trans., 1960). There the authors cite The Communist Manifesto's distinction between personal and private property and note that “[t]he socialist state does not repudiate personal property, but encourages its growth.” Id. For the property arrangement in the Soviet Union, as mentioned in the main text above, see W.E. Butler, Soviet Law 180 (2d ed. 1988).

40. See Butler, supra note 39, at 185. And see id. at 183: “whether an object may be personally owned is less a question of its natural properties than the actual nature of its use.”

41. See infra note 42.

42. Thus Waldron argues that the more restricted the definition of ownership, the less controversial it would be. The right to exchange (and different other rights not related to exclusive use) should for this reason be cast away. See Waldron, supra note 2, at 50–55. Penner argues that ownership promotes the owner's autonomy and that exchange promotes an interpersonal activity of engaging others in a joint activity. Therefore the latter does not form an organic aspect of the concept of ownership. See Penner, supra note 2, at 91–92. See also Merrill & Smith, supra note 33 (emphasizing exclusion and distinguishing it from the legal practice of contract).

43. I do not mean to imply that a system of personal property cannot operate in concert with an economic environment featuring fiat money. Rather, fiat money and the idea of owning it are immaterial and indeed conceptually insignificant for a system governing the use value of objects.

44. Whereas the difference I am arguing for is moral or legal, there may surely be psychological implications to living under a property regime that denies owners the right to sell their objects on the market. See Pipes, Richard, Human Nature and the Fall of Communism, 49 Bull. Am. Acad. Arts & Sci.38 (1996)Google Scholar.

45. While it is beyond dispute that scarcity makes coordination a difficult achievement, this might not be a conceptual truth about the need for property coordination. For this need can arise from another direction—namely, the human condition characteristic of modern, complex societies. In these societies, persons may disagree over substantive questions of all sorts, ranging from justice in holdings to the concrete arrangements of particular persons' holdings. Some of these disagreements do not turn on scarcity. That is, the source of disagreement—the fact of pluralism, as John Rawls calls it—has no perfect overlap with scarcity. Moreover, Lawrence Becker observes that insofar as private ownership (or property rights more generally) is necessary in order for persons to be well-functioning ethically speaking, an economic reality of scarcity is sufficient but not necessary for a private-property regime to arise. See Lawrence C. Becker, Property Rights: Philosophical Foundations 6 (1977).

46. There are other competitive or complementary systems (such as state property) but I set these to one side.

47. Normative standing should, therefore, be distinguished from other ways in which people can stand in relation to an object. Thus, people can stand in causal or factual relations to an object (perhaps because they happen to hold it); or they may be tied affectively to it (because it once belonged to their ancestors). Neither of these nonnormative standings need obtain for the normative aspect of standing to arise.

48. The last part of the sentence in the main text is meant to distinguish between what one impartially takes the judgment of another to be and the (unfiltered) judgment of this other. For more on the crucial place of owner's unfiltered judgment, see Keeton et al., supra note 21, at 113.

49. Owners in a personal-property system may of course decide not to exercise their rights to exclude others by inviting nonowners in. But this act does not amount to a change in the normative standing of others since they have not earned any right in relation to the object in question other than a mere license. The system of personal property I have in mind does not allow owners to vest others with rights to their property. This may not have been the actual system operating in the Soviet Union, but in principle it is possible for personal property to take this form.

50. Surely the right to exclusive use (of whatever degree) is controversial as well. Indeed, the background conditions under which a person could acquire this right are morally arbitrary—as when a person is simply born into a wealthy family in a wealthy state that is located on a wealthy continent. That said, a starting-gate theory of distributive justice could correct for this source of inequality by neutralizing the negative and positive effects of chance. However, even when this stage can be completed successfully, a further source of inequality appears in connection with the rights of owners to take their objects to the market, whose operation pays no particular attention to concerns of moral desert, chance, and choice (which are generally considered by liberal egalitarians as key elements in the pursuit of equality). At this stage, starting-gate redistribution is inadequate, and it is an open question among egalitarians how to respond to inequalities generated by markets, whose operation presupposes private property and rejects personal property. For more, see Anderson, Elizabeth, How Should Egalitarians Cope with Market Risks, 9 Theoretical Inquiries in Law239 (2008)Google Scholar; Markovits, Daniel, Luck Egalitarianism and Political Solidarity, 9 Theoretical Inquiries in Law151 (2008)Google Scholar.

51. Cohen, Morris R., Property and Sovereignty, 13 Cornell L.Q.8 (1927)Google Scholar. Neither Katz's nor my account, however, accepts Cohen's elaboration of sovereignty in connection with private ownership (nor his legal realism more broadly). Cohen begins his argument by severing property rights from physical possession, asserting that “the essence of private property is always the right to exclude others.” Id. at 12. According to my argument above, however, the right to exclude is a feature of possession, not ownership (or property rights). Nevertheless, his main point does not turn on this shortcoming, as I now explain. Indeed, the centerpiece of his argument, understood in the context of the heydays of laissez-faire, is that certain property right-holders exercise a de facto power of taxation over others in need of the former's resources even at the cost of “hard labor and disagreeable service.” Id. More specifically, people in need of resources “necessary for their subsistence” cannot but literally give themselves—their labor or money—over to right-holders to make a living or get necessary goods respectively. Id. To this extent, property rights are state authorizations conferred upon private entities to collect taxes (and therefore exercise political sovereignty) from economically dependent individuals and thus adversely to affect the redistribution of wealth among members of society. See id. at 13. Without going into the merits of Cohen's thesis, it is clear that his argument from sovereignty does not amount to a conceptual account of the idea of private ownership (or, for that matter, property rights). Indeed, his account aims at property rights over the means of production, and even then, not necessarily any means. See id. at 14 (raising the concern that “the wealthy few determine the mode of life of the many”). It is certainly not in the nature of private ownership, at least not on my account of ownership, that owners could exercise a de facto authority to tax economically dependant people. (For more, see Section IV below, especially my discussion of the just-price doctrine.) Moreover, Cohen self-consciously limits the character and scope of his thesis concerning property as sovereignty, e.g., to “modern owner of capital,” “modern large property owners,” “railroad,” “public service corporation,” “captain of industry and of finance,” and “gas company.” Id. at 13–14.

52. Katz, supra note 30, at 290.

53. I borrow this example from Katz (id. at 291) who develops it in another (though related) context.

54. Here again, I borrow the example from Katz (id. at 301) who draws on New Jersey v. Shack, 277 A.2d 369 (N.J. 1971).

55. Katz, supra note 30, at 300.

56. In particular, it is an open question, and one that plagues Katz's theory, whether the right to set the agenda for an object can explain cases in which the court recognizes a right to exclusive use even when the nonowner's activity can hardly be said to be inconsistent with the agenda set by the owner. The paradigm case here is Jacque v. Steenberg Homes, Inc., 563 N.W.2d 154 (Wis. 1997). Katz could claim, as she indeed does (supra note 30, at 303–305), that the precise agenda set by an owner can be interpreted broadly to include overarching agendas such as sustaining privacy. But the more one stretches the scope of the agenda, the more it loses its initial appeal, submerging in the exclusive-use account.

57. I elaborate on the distinction between property-as-relations and property-as-thingness below. See Section IV.B.

58. That said, I do not deny, nor could I, that the object as such is not a constitutive element of the practice of private ownership nor of any other form of ownership more generally. I do deny, however, that its role in a successful account of private ownership must play out in the normative relations that property rights establish. On my account, an object is the context in which the authority relations between owners and nonowners operate.

59. “An owner is not necessarily the only decision maker with respect to a resource.” Katz, supra note 30, at 294.

60. In contrast, on my preferred account, the authority characteristic of ownership is directed at and exercised over the normative standing of nonowners. Accordingly, the right to determine functions of a resource is merely the upshot of authority—a consequence thereof—rather than its immediate object. The agenda-setting account has it the other way around in this particular respect.

61. At this stage of my argument, I use relations in the limited sense of juridical and in particular authority relations. In future work I shall seek to show that these relations can also engender morally important social relations of respect and recognition between owners and nonowners. This showing, it is worth noting, does not seek to derive property rights from preexisting social relations, which is a thesis defended in, e.g., Singer, Joseph W., The Reliance Interest in Property, 40 Stan. L. Rev.614 (1989)Google Scholar. Rather, the claim is that ownership creates a thin though intrinsically valuable society between persons simply by virtue of their being persons, regardless of preexisting social relations.

62. Whether or not this association does justice to Hohfeld or to legal realism is a separate question that I set aside. Likewise, it is not clear to me why viewing private property as a bundle of sticks must carry overtones of a free-floating conception of property.

63. See, e.g., Penner, J.E., The “Bundle of Rights” Picture of Property, 43 UCLA L. Rev.711 (1996)Google Scholar.

64. Katz, supra note 30, at 275, 275 n.1, 283.

65. See text accompanying notes 56–61.

66. There is at least one other important thesis associated with Hohfeld's account of rights: that in rem and in personam rights are indistinct at their core. I leave the effort of articulating an account of the distinctive nature of property rights for another occasion.

67. See Anthony M. Honoré, Property and Ownership: Marginal Comments, in Properties of Law: Essays in Honour of Jim Harris 129, 131 (Timothy Endicott et al. eds., 2006) (denying the association of the Hohfeld-Honoré approach to property and ownership with conceptual skepticism about these concepts).

68. A more complete elaboration on the form of private ownership and its importance for property discourse appears below. See Section V.

69. Hohfeld, Wesley Newcomb, Fundamental Legal Conceptions as Applied in Judicial Reasoning, 26 Yale L.J.710 (1917)Google Scholar. See Singer, supra note 1, at 133 (noting that “Hohfeld was the first to popularize the idea that liberties entail relations.”).

70. Immanuel Kant, The Metaphysics of Morals 6:261, at 49 (Mary Gregor trans. & ed., 1996) (1797).

71. See Ripstein, supra note 2, at 86–106, esp. 93 n.11.

72. Although Kant's account of property proceeds on the basis of relational rights of ownership, there are some striking differences between my proposed account and his—at least as developed in Ripstein's illuminating book; see id. Three are worth mentioning at this stage. First, Kant begins with a general and abstract idea of law and property—an a priori idea of reason and reason alone—and then works out the implications of this idea for actual legal practice. By contrast, I seek to reconstruct the idea of private ownership from the actual legal practice. Second, the Kantian account of private ownership may be best understood as a variation on the exclusive-use theme, the theme I have been criticizing above. Third, Kantian ownership is in principle absolute. There is nothing except for the equal freedom of others that can render legitimate society's attempt to narrow it (say, by pursuing a luck-egalitarian program). As Section V of my account makes clear, however, private ownership need not call for absolute rights.

73. I emphasize theoretical elaboration and leave to another occasion the doctrinal aspects of my account (viz., the elaboration of particular doctrinal areas in property law in the light of the concept of private ownership I develop).

74. The locus classicus of these and other substantive rights or incidents of ownership is Anthony M. Honoré, Ownership, in Oxford Essays in Jurisprudence 107 (A.G. Guest ed., 1961).

75. Holmes, supra note 17, at 100.

76. For more, see Avihay Dorfman & Assaf Jacob, Copyright as Tort, Theoretical Inquiries in Law (forthcoming 2010).

77. For elaborations on this proposition, see Harris, supra note 3, at 119–161; Smith, Henry E., Mind the Gap: The Indirect Relations between Means and Ends in American Property Law, 94 Cornell L. Rev.959 (2009)Google Scholar.

78. A more precise explanation appears in text accompanying notes 85–92.

79. Grey, Thomas C., The Disintegration of Property, 22 Nomos69, 71–73 (J. Roland Pennock & John W. Chapman eds., 1980)Google Scholar. And see Munzer, supra note 11, at 31–36 (providing a sustained attack on Grey's thesis).

80. Grey, supra note 79, at 72.

81. See Hanoch Dagan, Exclusion and Inclusion in Property (unpublished manuscript on file with author); Dagan, Hanoch, The Craft of Property, 91 Cal. L. Rev.1517, 1558–1565 (2003)Google Scholar.

82. According to Dagan, “ownership for one purpose does not imply ownership for another.” Dagan, Craft, supra note 81, at 1563.

83. It is not implausible to interpret Dagan as advocating this thought in saying that his preferred approach “understands the forms of property . . . as important default frameworks of interpersonal interactions.” Id. at 1558. The important question is, of course, how rebuttable the default is.

84. Another way to put this point is to say that the exclusive-use account, because it insists on the essentiality of the right to exclusive use, purports to be the only conception of the concept of private ownership. A conception, on the Rawlsian terminology, is a theory of the concept. See Rawls, supra note 15, at 5–6. The concept/conception distinction is introduced to property discourse in Waldron, supra note 2, at 47–53, and more recently deployed in Laura S. Underkuffler, The idea of Property: Its Meaning and Power 19 (2003). But both of these cases are mistaken insofar as they take conception to stand for a concrete application of the concept. Once again, according to Rawls, a conception of the concept is not an application but rather a theory of the concept.

85. Smith concedes that the right to exclusive use “is best regarded not as absolute but as carrying heavy presumptive force.” And he further observes that characterizing heaviness in this regard is “a worthy topic for debate.” Smith, supra note 77, at 968.

86. One of the benefits of the proposed theory of private ownership is that it accounts for the qualitative difference between eminent domain and private taking. Because the state vests owners with the authority to fix others' normative standing to an object, the state need not be subject to this authority in the same way that fellow citizens are. The state has compelling reasons to defer to the authority in question at most times, to be sure, and the general constitutional considerations of fairness that govern its interactions with citizens are not without force here.

87. For the doctrine of retrait lignager, see 2 Frederick Pollock & Frederick W. Maitland, The History of English Law 313 (2d ed. 1923).

88. It does not follow that other rights traditionally associated with private ownership are necessarily contingent. Thus, for example, the right to some measure of exclusive use might be necessary insofar as it is a prerequisite for the exercise of the authority vested in private owners to fix the normative standing of others in relation to an object. I leave this secondary question for another occasion.

89. See Penner, supra note 2, at 91–92, and recall my analysis in the main text concerning the conceptual difference between private ownership and contract in my account.

90. See Waldron, Jeremy, What Is Private Property?, 5 Oxford J. Legal Stud.313, 341–344 (1985)Google Scholar.

91. By using the term the right to alienate, I do not seek to overplay idiosyncratic powers such as the right to make a bequest (which involves the question of whether the authority of the owner exists posthumously) or gratuitously give a gift (which normally presents itself within circles of intimacy or sectarian fraternity). Instead, in line with the entire argument of these pages, the emphasis is on the right of free exchange, including the exchange of certain rights—say, the right to use an object—for consideration.

92. And once the latter set of arguments wins the debate, and the right to alienate is thereby abolished, the idea of private ownership transforms into a conceptually different system of possessory rights that displays indifference to the private or public form that it takes and naturally applies to command economies.

93. For efforts in this vein, see Markovits, Daniel, Contract and Collaboration, 113 Yale L.J.1417 (2004)Google Scholar; Avihay Dorfman, What is the Point of the Tort Remedy?, Am. J. Juris. (forthcoming 2010).