Contemporary Property Law Scholarship: A Comment

In his essay The Dynamic Analytics of Property Law, Professor Michael Heller describes and criticizes the familiar, current analytical tools of property theory and calls for the adoption of a more dynamic approach. In this comment, I shall address briefly two issues discussed in Heller's paper: his suggestion that we add a fourth type of property – "anticommons property" – to the well-known "property trilogy" of private property, commons property, and state property; and his critique of the "bundle of rights" approach of the courts to the takings problem, which leads to excessive fragmentation of private property. The former issue nicely demonstrates the current tendency of scholars to argue against "too much private property." The latter illustrates the familiar, futile search of property scholars for an all-encompassing metaphor to describe and identify private property.