Article by Jonathan Remy Nash
The two fundamental paradigms of property rights are the “bundle of sticks” approach and the “discrete asset” approach. Over the last century, scholars abandoned the previously dominant “discrete asset” approach. While some scholars recently have suggested reintegrating the “discrete asset” approach into property theory, the legal community—both academic and professional—remains substantially wedded to the “bundle” approach. At the same time, there is a sense that the public at large generally adheres to the “discrete asset” approach. Although commentary acknowledges this dichotomy in terms of which paradigm better describes the legal understanding and treatment of property rights, it often pays little heed to the distinction between property paradigms in the important context of whether the governing paradigm might affect people's behavior in respect of property rights. This Article describes the results of an experiment designed to test the hypothesis that the paradigm according to which property rights are framed has an effect upon whether and how much people accept interference with and regulation of those rights. The results provide statistically significant support for the proposition that that those who view the rights under the “discrete asset” paradigm would be less likely to part with their rights than those who view the rights under the “bundle” paradigm. The study also confirms that the paradigmatic frame through which property rights are presented has an effect upon people's perceptions of those rights.
About the Author
Jonathan Remy Nash. Professor of Law, Emory University School of Law. The author was a Visiting Professor of Law at the University of Chicago Law School for the 2007-2008 academic year and, until 2008, was the Robert C. Cudd Professor of Environmental Law at Tulane Law School.
Citation
83 Tul. L. Rev. 691 (2009)