1. Bruce Ackerman, Private Property and the Constitution (1977), at 26.

2. Breakey, Hugh, Two Concepts of Property: Ownership of Things and Property in Activities, 42 Phil. F. 239–266 (2011)CrossRefGoogle Scholar, at 240–242. The new consensus is also evident in a recent symposium on the subject; see Klein, Daniel & Robinson, John, Property: A Bundle of Rights? Prologue to the Property Symposium, 8 Econ J. Watch 193–204 (2011)Google Scholar.

3. Ackerman, supra note 1, at 26.

4. Some of the philosophical literature on property is concerned with the nature of “concepts” and with the distinction, if any, between these and “ideas”; for an excellent discussion and overview of these issues, see Munzer, Stephen R., Property and Disagreement, in Philosophical Foundations of Property Law (Penner, J. & Smith, H.E. eds., 2013)Google Scholar. While I have a view on this question, I do not believe that anything in the present argument hangs on it; and it seems methodologically sound to me, as far as is possible, to try to keep these two rather dissimilar sets of philosophical issues separate from each other. I am grateful to an anonymous referee for bringing this apparent lacuna to my attention.

5. In the words of a fellow enthusiast; the bundle theory is “an analytical scheme applicable to many legal systems and the property arrangements within them. A virtue of such a scheme is that it makes few if any moral or political commitments. The analysis of property law is one thing and proposals for its reform are quite another.” Munzer, Stephen R., A Bundle Theorist Holds onto His Collection of Sticks 8 Econ J. Watch 265–273 (2011)Google Scholar, at 269.

6. Wesley N. Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning: And Other Essays (1923). Since the only commercially available editions of Hohfeld's work at this time are facsimile reprints of at best intermittent legibility, the reader is invited to contest the veracity of all passages quoted from Hohfeld's work in this paper.

7. A.M. Honoré, Ownership, in Making Laws Bind 161–192 (1987). Opinions differ as to whether Honoré, who sought to outline the “liberal concept of full individual ownership” (id.), can properly be grouped with the bundle theorists; at any rate, the bundle theorists who followed made extensive use of his schema.

8. The first known use of the term in this context is in John Lewis, A Treatise on the Law of Eminent Domain in the United States (1888), at 43; “The dullest individual among the people knows and understands that his property in anything is a bundle of rights.” The first metaphorical reference to a bundle of sticks, however, is Benjamin N. Cardozo, The Paradoxes of Legal Science (1928), at 129: “The bundle of power and privileges to which we give the name of ownership is not constant through the ages. The faggots must be put together and rebound from time to time.”

9. See, e.g., Justice Mosk's dissent in Moore v. Regents of the Univ. of Cal., 793 P.2d Cal. 479, 509–510 (1990).

10. See, e.g., Ellickson, Robert C., Property in Land, 102 Yale L.J. 1315 (1993)CrossRefGoogle Scholar, at 1346–1348.

11. See J.C.W. Wylie, Irish Land Law (4th ed. 2010), at 867–884.

12. In practice, the number and form of such fragmentations and redistributions permitted is limited by the so-called numerus clausus principle, principally as a result of the in rem nature of property rights that will play a large part in this discussion; see Merrill, T.W. & Smith, H.E., Optimal Standardization in the Law of Property: The Numerus Clausus Principle, 110 Yale L.J. 1–70 (2000)CrossRefGoogle Scholar; and Singer, Joseph, Democratic Estates: Property Law in a Free and Democratic Society, 94 Cornell L. Rev. 1009–1062 (2009)Google Scholar, at 1021–1029. For a beguiling account of the complexities of property-right arrangements, however (and of the degree to which the lay public's understanding of their subtleties often outstrips that of legal specialists), cf. Elickson, Robert C., Of Coase and Cattle: Dispute Resolution among Neighbors in Shasta County, 38 Stan. L. Rev. 623–687 (1986)CrossRefGoogle Scholar. As detailed below, there are also relations of logical entailment between, e.g., duties and their correlative rights; we may regard these, however, as instances of the same stick viewed from different perspectives.

13. See Gilbert Ryle, The Concept of Mind (1949), at 16ff.

14. A fee simple interest with possession in land is widely considered to be the closest analogue to “absolute” ownership; nevertheless, even such an interest is subject to potential statutory restrictions on bequest or to compulsory purchase by the state. See, e.g., both the majority opinion by Justice Brennan and the dissent by Justice Rehnquist in Penn Cent. Transp. Co. v. New York, 438 U.S. 104 (1978).

15. Jeremy Waldron, The Right to Private Property (1988), at 29. Cf. the discussion of the “train-sparks” in Richard A. Posner, Economic Analysis of Law (8th ed. 2011), at 63.

16. Cf., e.g., Simon Kirchin, The Shapelessness Hypothesis, 10 Philosophers’ Imprint 1–28 (2010).

17. Hume, David, An Enquiry Concerning Human Understanding pt. 3, sec. 12 (Selby-Bigge, L.A. & Nidditch, P.H. eds., Oxford University Press, 1978)Google Scholar (1748).

18. David Lewis, 2 Philosophical Papers (1987), at ix; cf. Beebee, Helen, The Non-Governing Conception of Laws of Nature, 61 Phil. & Phenomenological Res. 571–594 (2000)CrossRefGoogle Scholar.

19. See, e.g., Jaegwon Kim, Concepts of Supervenience, in Supervenience and Mind: Selected Philosophical Essays (1993). An accessible introduction to the topic is McLaughlin, Brian & Bennett, Karen, Supervenience, The Stanford Encyclopedia of Philosophy (Zalta, Edward N. ed., 2011)Google Scholar, available at http://plato.stanford.edu/archives/win2011/entries/supervenience/.

20. This is not to say, pace Henry Smith, that the bundle theory must attribute the fact “(t)hat sticks come in standardized clumps—fee simple, defeasible fee, life estate, future interests, easements, and so on” to mere “happenstance”; Smith, H.E., Property Is Not Just a Bundle of Rights 8 Econ J. Watch 279–291 (2011)Google ScholarPubMed, at 284. That the relations are not necessary or intrinsic does not mean they must be merely arbitrary. Thus it is entirely inaccurate to charge bundle theorists with analyzing a hypothetical diamond by “counting atoms” and ignoring important causal features of its physical structure (id. at 279); what is denied is not that those causal features exist but that they exist necessarily. Cf. Smith, Henry E., Property as the Law of Things, 125 Harv. L. Rev. 1691–1726 (2012)Google Scholar, at 1709ff.

21. Perhaps the best-known expression of this view is the criticism of Local 1330, United Steel Workers v. U.S. Steel Corp., 631 F.2d 1264 (1980), in Singer, Joseph, The Reliance Interest in Property, 40 Stan. L. Rev. 611–751 (1988)CrossRefGoogle Scholar. The justices, Singer argues, “wrongly defined the issue as a search for the ‘owner’ of the property. They then assumed that, in the absence of specific doctrinal exceptions to the contrary, owners are allowed to do whatever they want with their property” (id. at 621). To search for “the owner” when many parties have compelling interests, he argues, “is fundamentally wrong. It is simply not the right question. To assume that we can know who property owners are, and to assume that once we have identified them their rights follow as a matter of course, is to assume what needs to be decided” (id. at 637–638). Instead, the courts ought to “decide who wins the dispute on grounds of policy and morality, and then . . . call that person the owner” (id. at 638).

22. See, e.g. , John Dupré, The Disorder of Things: Metaphysical Foundations of the Disunity of Science (1993).

23. Hohfeld, supra note 6, at 96–97. The most important precursors to Hohfeld's theory are Henry Terry, Some Leading Principles of Anglo-American Law (1884); John Salmond, Jurisprudence, or, the Theory of the Law (1902); and John Chipman Gray, The Nature and Sources of the Law (1909). Singer, Joseph, The Legal Rights Debate in Analytical Jurisprudence 6 Wis. L. Rev. 975–1069 (1982)Google Scholar, provides a useful summary of its historical context and development.

24. For a clear recent expression of the contrary view, holding that Hohfeld and his successors have got things “exactly backward” in this regard, see Smith, Henry E., Property as the Law of Things, 125 Harv. L. Rev. 1691–1726 (2012)Google Scholar, at 1692. Smith's view is that the “information costs” of keeping track of such a myriad of interpersonal relationships renders the Hohfeldian view radically impractical (see infra note 50) and that property therefore provides “a platform for the rest of private law” (id. at 1691) by simplifying these relationships as a much smaller and standardized number between persons and things. But the bundle theory, as Smith acknowledges (id. at 1695ff.), is an “analytical device” that aims to reveal the fundamental nature of property relations and quotidian property talk; that it is usually far more efficient to abbreviate the multitude of fundamental relations into the everyday vocabulary is not something that bundle theorists commonly deny, any more than physicists will typically eschew talk of the ordinary physical objects and properties that they nevertheless hold to be analyzable without remainder into arrangements of subatomic particles and their properties.

25. Hohfeld, supra note 6, at 72.

26. “All proceedings, like all rights, are really against persons. Whether they are proceedings or rights in rem depends on the number of persons affected.” Tyler v. Ct. of Registration, 175 Mass. 71 (1900), at 76. Cf. Holmes, O.W., Privilege, Malice, and Intent, 8 Harv. L. Rev. 1–14 (1894)CrossRefGoogle Scholar.

27. Hohfeld, supra note 6, at 76–77.

28. Cf. Mossoff's reading of State v. Shack, 277 A.2d N.J. 369 (1971); “Shack is a prime example of how property rights disintegrate under the bundle conception of property. . . . Under such an approach, there is nothing really left to property that distinguishes it from any other in personam legal entitlements that the government distributes and regulates.” Mossoff, Adam, The False Promise of the Right to Exclude, 8 Econ J. Watch 255–264 (2011)Google Scholar. For another relevant example, consider the lease/license dichotomy; see, e.g., Wylie, supra note 11, at 1095ff.

29. The term is coined in Kramer, Mathew H., Rights without Trimmings, in A Debate over Rights: Philosophical Enquiries 7–112 (Kramer, M.H., Simmonds, N.E. & Hillel, Steiner eds., 2000)CrossRefGoogle Scholar, at 24:

30. Hohfeld, supra note 6, at 38, cites Lake Shore & M.S.R. Co. v. Kurtz, 10 Ind. App. 60 (1894) (“‘Duty’ and ‘right’ are correlative terms. When a right is invaded, a duty is violated.”); and cognate passages in Howley Park Coal etc. Co. v. L. & N.W. Ry., 1 A.C. 11 (1913); and Galveston etc. Ry. Co. v. Harrigan, 76 S.W. 452 (1903).

31. Kramer, Matthew H., Legal and Moral Obligation, in The Blackwell Guide to the Philosophy of Law and Legal Theory 179–190 (Golding, Martin & Edmundson, William eds., 2005)Google Scholar, at 188.

32. Ernest Weinrib traces this insight about correlativity to Kant and Hegel; see Weinrib, Ernest, Legal Formalism: On the Immanent Rationality of Law, 97 Yale L. J. 949–1016 (1988)CrossRefGoogle Scholar, at 998–999; Weinrib, Ernest, Law as a Kantian Idea of Reason, 87 Colum. L. Rev. 472–508 (1987)CrossRefGoogle Scholar, at 493, 495. The relevant passages seem to be those in Hegel, G.F.W., Outlines of the Philosophy of Right (Knox, T.M. trans., Houlgate, Stephen ed., Oxford Univ. Press 2008)Google Scholar (1820), at 56–57; and Kant, Immanuel, The Metaphysics of Morals secs. 18–21 (Gregor, Mary trans., Cambridge Univ. Press 1996)CrossRefGoogle Scholar (1797). However, H.S. Maine, Ancient Law: Its Connection with the Early History of Society and Its Relation to Modern Ideas (1861), at 269–270, argues further that no distinction between rights and duties existed in Roman law; see Campbell, Kenneth, Legal Rights, The Stanford Encyclopedia of Philosophy (Zalta, Edward N. ed., 2011)Google Scholar, available at http://plato.stanford.edu/archives/spr2011/entries/legal-rights/.

33. Namely, the right to possess; the right to use; the right to manage; the right to the income; the right to the capital; the right to security; the incident of transmissibility; the incidence of absence of term; the duty to prevent harm; liability to execution; and residual character; Honoré, supra note 7, at 165–179). An alternative list is suggested by Dean Pound:

Pound, Roscoe, The Law of Property and Recent Juristic Thought, 25 A.B.A. J. 993 (1939)Google Scholar, at 997. Björkman, B. & Hansson, S.O., Bodily Rights & Property Rights, 32 J. Med. Ethics 209–214 (2006)CrossRefGoogle Scholar, neatly compares further alternative schema due to Henry Sidgwick, Lawrence Becker, and others.

34. Many cities, as I am grateful to an anonymous commentator for pointing out, have regulations that prohibit splitting city lots in two in this manner. There are, of course, excellent pragmatic reasons for regulations of this sort, which minimize the “information costs” imposed by excessively baroque, exotic, or fine-grained distributions of property rights; some theorists (see infra note 49) make these costs the basis of their opposition to the bundle theory. But according to the bundle theory, these are contingent rather than essential connections between sticks, and there is nothing in the nature of property that determines that regulations must exist to link them in this way.

35. Grey, Thomas C., The Disintegration of Property, in Nomos XXII: Property (Pennock, J. Roland & Chapman, John W. eds., 1980)Google Scholar, at 69. For a very clear exposition and rebuttal of Grey's somewhat extreme view by a fellow bundle theorist, see Stephen R. Munzer, A Theory of Property (1990), at 31–36.

36. See, e.g., Breakey, supra note 2.

37. Id. at 241.

38. Id.

39. Klein & Robinson, supra note 2, at 196–201, provides a range of quotations to this effect; but cf. Richard A. Epstein, Takings: Private Property and the Power of Eminent Domain (1985), which argues that the bundle theory itself—by making each “stick” a compensable taking—serves this protective function. This argument is reiterated in Epstein, Richard A., Bundle-of-Rights Theory as a Bulwark against Statist Conceptions of Private Property, 8 Econ J. Watch 223–235 (2011)Google Scholar.

40. Penner, James, The “Bundle of Rights” Picture of Property, 43 UCLA L. Rev. 711–820 (1996)Google Scholar.

41. James Penner, The Idea of Property in Law (1997).

42. Id. at 25.

43. Cf. Walter Wheeler Cook, Introduction, in Wesley N. Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning: And Other Essays (1923): “Any given single relation necessarily involves two persons. Correlatives in Hohfeld's scheme merely describe the situation viewed first from the point of view of one person and then from that of the other.”

Penner, Idea, supra note 41, at 25–26.

44. Id.

45. Id. at 26.

46. Id.

47. Id., at 27.

48. Introduced in Quine, W.V., Quantifiers and Propositional Attitudes, 53 J. Phil. 177–187 (1956)CrossRefGoogle Scholar.

49. Penner, Idea, supra note 41, at 27. Merrill, Thomas & Smith, Henry, What Happened to Property in Law and Economics?, 111 Yale L.J. 357–398 (2001)CrossRefGoogle Scholar, use this as the basis for their influential “information-cost account” of property-as-exclusion; see also Katz, Larissa, The Regulative Function of Property Rights, 8 Econ J. Watch 236–246 (2011)Google Scholar, at 239; Smith, Henry, On the Economy of Concepts in Property, 160 U. Pa. L. Rev. 2097–2128 (2012)Google Scholar; and Smith, Henry, Emergent Property, in Philosophical Foundations of Property Law (Penner, J. & Smith, H.E. eds., 2013)Google Scholar, especially sec. 5. My own view, which coincides with Munzer, Property and Disagreement, supra note 4, is that “context and heuristics,” as in any area of human life, reduce the supposed cognitive burden of in personam property rights considerably.

50. Even then, the right might be granted to me de dicto and without personal acquaintance as, for instance, “the individual renting the Gate Lodge of Blackacre” or “the oldest single man in the village”; de re reference and personal knowledge are not necessary for in personam rights. For this reason, we can dismiss Penner's later concern that in personam rights “have their specific right-holders and duty-owers essentially” and that the title embodied in those rights cannot therefore be transferred to others; Penner, James, Potentiality, Actuality, and “Stick”-Theory, 8 Econ J. Watch 274–278 (2011)Google Scholar, at 277. I thank an anonymous reviewer for bringing this point to my attention.

51. Actually, this is not quite correct. I suspect, for instance, that a case of de re/de dicto opacity in the context of a demonstrative reference—as discussed in Kaplan, David, On the Logic of Demonstratives, 8 J. Phil. Logic 81–98 (1978)Google Scholar—may be the best theoretical explanation of the celebrated distinction between the common-law contract cases Cundy v. Lindsay, (1878) 3 App. Cas. 459, and Lewis v. Averay [1971] 3 All ER 907; [1972] 1 Q.B. 198. But that is another paper's work; the claim is sufficiently accurate for our current purposes.

52. Penner, Bundle, supra note 40, at 739.

53. Id.

54. “Entities are not to be multiplied beyond necessity.”

55. Penner, Idea, supra note 41, chs. 4–5.

56. Penner, Bundle, supra note 40, at 742.

57. Id. at 754.

58. Here is the summary of just a single instance:

Penner, Idea, supra note 41, at 131.

59. Thomas S. Kuhn, The Structure of Scientific Revolutions (1962), at 140, 322–324.

60. Quine, W.V., Two Dogmas of Empiricism, 60 Phil. Rev. 20–43 (1951)CrossRefGoogle Scholar; Pierre Duhem, The Aim and Structure of Physical Theory (1954), at 180ff.

61. See also the criticisms of Penner's position in Mossoff, Adam, What Is Property? Putting the Pieces Back Together, 45 Ariz. L. Rev. 371–443 (2003)Google Scholar, at 376–378.

62. Penner, Bundle, supra note 40, at 754–755.

63. Id. at 758.

64. Id.

65. Id. at 758.

66. Id. at 769.

67. Grey, supra note 35.

68. Hoffmaster, Barry, Between the Sacred and the Profane: Bodies, Property, and Patents in the Moore Case, 7 Intell. Prop. J. 115–148 (1992)Google Scholar, at 129. Cf. Munzer, Theory, supra note 35, at 39; Katz, Larissa, Exclusion and Exclusivity in Property Law, 58 U. Toronto L.J. 275–315 (2008)CrossRefGoogle Scholar, at 276.

69. Cf. Hamilton, W.H. & Till, I., Property, 12 Encyclopedia Soc. Sci. 536 (1933)Google Scholar: “It is incorrect to say that the judiciary protected property; rather they called that property to which they accorded protection.” See, e.g., the famous Australian case of Victoria Park Racing and Recreation Grounds Co. Ltd. v. Taylor (1937) 58 CLR 479 (Austl.); as well as Sports and Gen. Press Agency Ltd. v. “Our Dogs” Publ'g Co. Ltd., [1916] 2 K.B. 880, [1917] 2 K.B. 125.

70. Int'l News Serv. v. Associated Press, 248 U.S. 215 (1918).

71. Moore, supra note 9, at 479.

72. Int'l News, supra note 70, at 235–236.

73. Penner, Bundle, supra note 40, at 816.

74. Id.

75. Id. at 817.

76. Moore, supra note 71, at 492.

77. See supra note 9.

78. Penner, Bundle, supra note 40, at 721.

79. Id. at 817.

80. Id. at 767ff.; J.K. Sutton, Family Resemblance: An Externalist Approach to Metaphysics (1992) (unpublished B. Phil. thesis, Oxford University).

81. Penner, Bundle, supra note 40, at 739.

82. J.W. Harris, Property and Justice (1996).

83. Id. at 7.

84. Id. at 132; cf. Harris, J.W., The Elusiveness of Property, in Perspectives on Jurisprudence: Essays in Honour of Jes Bjarup, 123–132 (Walgren, Peter ed., 2005)Google Scholar, at 129.

85. Harris, Property, supra note 82, at 47, 51.

86. Id. at 73.

87. Id. at 5.

88. Id. at 15ff.

89. For a stark contrast with the potential utility of actual empirical anthropological studies, see, e.g., Hoebel, E. Adamson, Fundamental Legal Concepts as Applied in the Study of Primitive Law, 51 Yale L.J. 951–966 (1942)CrossRefGoogle Scholar.

90. Harris, Property, supra note 82, at 55.

91. Id. at 42 & ff.

92. Id. at 72.

93. Id. at 86.

94. Id. at 62.

95. Id. at 63.

96. See supra note 67.

97. Harris, Property, supra note 82, at 131. See e.g. Olivecrona, Karl, Locke's Theory of Appropriation, 24 Phil. Quarterly 220–34 (1974)CrossRefGoogle Scholar.

98. Nelson Goodman, The New Riddle of Induction, in Fact, Fiction, and Forecast (1954).

99. Cf. Kim Sterelny & Paul E. Griffiths, Sex and Death: An Introduction to the Philosophy of Biology (1999), at 196.

100. Harris, Property, supra note 82, at 142.

101. Id. at 119.

102. Id. at 120.

103. Id. at 122.

104. The issue also seems to be alluded to in Penner, Idea, supra note 41, at 25.

105. For the standard definition of “temporal parts,” see Ted Sider, Four-Dimensionalism (2001), at 60.

106. H.L.A. Hart, The Concept of Law (2d ed. 1994), at 124–136.

107. For instance, when carbon-trading regimes are first instituted, a new class of economic assets is created. It then seems to be an open question who “owns” and is entitled to trade the credits newly associated with some piece of land. I thank Prof. Yvonne Scannell for suggesting this example to me.

108. Mayor and Corp. of Bradford v. Pickles, [1895] A.C. 587.

109. Id. at 600–601.

110. Harris, Property, supra note 82, at 124. Cf. also Brian Leiter's discussion of “conceptual rule-skepticism” in Leiter, Brian, American Legal Realism, in The Blackwell Guide to the Philosophy of Law and Legal Theory 50–66 (Golding, Martin & Edmundson, William eds., 2005)Google Scholar, at 61–63.

111. Harris, Property, supra note 82, at 124.

112. Lyons, Donna, Dworkin and Judicial Discretion: A Critical Analysis of the Pre-existence Thesis, 11 Trinity C. L. Rev. 1–12 (2008)Google Scholar summarizes the main issues with exemplary clarity.

113. Cf. Munzer, Property and Disagreement, supra note 4, n.43 & ff.

114. Cf. Putnam, Hilary, The Meaning of “Meaning,” 7 Minn. Stud. Phil. Sci. 131–193 (1975)Google Scholar.

115. See, e.g., Merrill, Thomas, The Property Prism, 8 Econ J. Watch 247–254 (2011)Google Scholar, at 252 (“The bundle of rights is a primitive metaphor, conjuring up a medieval peasant carrying a faggot of wood. It is time for a better metaphor.”); Ellickson, Robert C., Two Cheers for the Bundle-of-Sticks Metaphor, Three Cheers for Merrill and Smith, 8 Econ J. Watch 215–222 (2011)Google Scholar, at 216 (“I therefore urge legal commentators not to abandon the bundle-of-sticks metaphor, but rather to be aware of its limitations and to invent complementary metaphors that might counter the bundle's shortcomings.”).

116. Cf. Harris, Property, supra note 82, at 256.