The Bundle of Sticks: Is There Anything It Can’t Do? — Henry E. Smith

Post by Henry E. Smith

Last week, the Supreme Court decided Henderson v. United States.  Justice Kagan’s opinion for a unanimous court holds that a court can use its equitable powers to order the government to transfer a convicted felon’s firearms to a third party as long as the court is satisfied that the recipient will not give the felon control over the guns.  (Under 18 U.S.C. § 922(g), it is unlawful for a felon to possess a firearm.)  As reflected in the 9-0 result and the skepticism of the Justices about the government’s arguments for why a flat-out refusal to allow the felon any choice of transferee, the opinion might be regarded as an unremarkable bit of criminal law or statutory construction.

But then there’s this:

Section 922(g) proscribes possession alone, but covers possession in every form. By its terms, §922(g) does not prohibit a felon from owning firearms. Rather, it interferes with a single incident of ownership—one of the proverbial sticks in the bundle of property rights—by preventing the felon from knowingly possessing his (or another person’s) guns. But that stick is a thick one, encompassing what the criminal law recognizes as “actual” and “constructive” possession alike.

Slip Op. at 3-4 (citations omitted).  After gesturing to the bundle of sticks, Justice Kagan goes on to note that the right to sell or otherwise dispose of an item is a distinct incident of ownership and concludes that one can exercise the right to alienate without either actual or constructive possession.

Possession is indeed different from ownership.  The law sometimes protects owners not in possession and sometimes non-owner possessors (think trespass).  What does that have to do with the bundle of rights?  Indeed, a new book out today, Law and Economics of Possession (edited by Yun-chien Chang, Cambridge University Press), contains a number of chapters dealing with possession and ownership that do not subscribe to the bundle theory.  (Full disclosure: One of them is by me.)  Possession is not a “thick stick” but is “built into” the architecture of property law by drawing on everyday notions and norms of control to delineate things and perform a rough assignment of things to persons.  Much of the time this is all we need (no title searches for pens one buys at Staples), but for more valuable assets and more difficult problems (mortgages, anyone?) we need more complex devices of title and transfer, including a system of records.  Thinking of property as a box of pick-up sticks doesn’t explain much. Indeed, while the bundle of rights is defensible as limited analytical tool, it is not really a theory of property at all.  (See here for a collection of pro- and anti-bundle essays.)  At the risk of hyperbole, something that can explain everything explains nothing.  And even as an analytical tool, the bundle of sticks pops up when it is least needed.  Is the bundle of sticks a bad penny?

* Image: TamnLu Productions (CC license)