Legal Theory Workshop
Presents:
Avihay Dorfman
Tel Aviv University, Buchmann Faculty of Law
Property Beyond Exclusion
Friday November 1, 2019
12:30pm – 2:00pm
84 Queen’s Park, Room Solarium
***Please note: The workshop will be held in the solarium
The idea of exclusion plays a pivotal role in property law and theory, and it is only destined to receive more salience in the light of the forthcoming fourth Restatement of property. There are accounts of property, and case-law, that treat exclusion as the single most fundamental feature of property. And there are other accounts, and case-law, that insist that exclusion is not the only signature feature of property—in particular, inclusion is important, too. The hidden assumption shared by both sides of the debate is that ‘exclusion’ is uniformly given, that is, that there is only one sense of ‘exclusion’ to which any and all instances of denying access to external things refer. This article argues that there is no sufficiently robust notion of ‘exclusion’; there exist, instead, exclusions. In some cases, the property owner’s entitlement to exclude others has virtually nothing to do with property; property is, then, epiphenomenal. At other times, an entitlement to exclude cannot exist independently of having a right to property. But even then, there are important differences between excluding others for housekeeping purposes (‘we are closed for the day, come back tomorrow’) and denying access categorically (‘keep off, period’). I therefore argue that talk of ‘exclusion’ obscures important conceptual and normative differences between several conceptions of exclusion, and that the variety of such conceptions should change the way we understand in theory, and determine in practice, what property rights and duties we have. I develop a legal framework, the exclusions framework, that integrates the fact of exclusions into the actual workings of the law, and show that it puts property law on better conceptual and normative foundations than the one that reduces the right to exclude into a single notion of exclusion.
Avihay Dorfman is a law professor at Tel Aviv University, Buchmann Faculty of Law. He is a graduate of Haifa University (B.A. Economics `04, LL.B. Law `04) and Yale Law School (LL.M. `06, J.S.D. `08). In 2004-2005, he clerked for The Honorable Aharon Barak, the (then) Chief Justice of the Supreme Court of Israel. He is a winner of the 2011 Alon Fellowship (granted by the Council of Higher Education in Israel), the winner of the 2011-2012 Cegla prize for best law review article published by junior faculty in Hebrew, and a winner of the 2013 Cheshin Prize in the category of junior legal scholar. Dorfman’s primary research and teaching interests include the philosophical foundations of private law, especially torts and property, and theories of political legitimation. His other areas of interests are constitutional rights (in particular, religious liberty). Representative publications are: The Case Against Privatization, 41 Philosophy & Public Affairs 67 (2013) (w/ Alon Harel); Private Ownership and the Standing to Say So, 64 University of Toronto Law Journal 402 (2014); Just Relationships, 116 Columbia Law Review (forthcoming 2016) (w/ Hanoch Dagan); Negligence and Accommodation, Legal Theory (forthcoming 2017) Dorfman was the Chief Editor of the Tel Aviv U. Law Review (Vol. 37-38).
If you would like more information about these workshops, please send an email to events.law@utoronto.ca
Carissima Mathen is a law professor at the University of Ottawa. She is an expert in the Constitution of Canada, criminal law and U.S. Constitutional Law. She has a special interest in the Supreme Court of Canada, judicial review, the separation of powers, criminal justice, and the relationship between law and social media. She publishes and lectures frequently in these areas.
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