Unpacking Private Property’s Bundle of Sticks

Pacific Legal Foundation seeks proposals for academic papers to be presented at a scholarly research roundtable on “Unpacking Private Property’s Bundle of Sticks” to be held in the fall of 2025.

Background

What is private property? James Madison called it “that dominion which one man claims and exercises over the external things of the world, in exclusion of every other individual.” The Constitution’s Takings Clause doesn’t define it; it simply prohibits the taking of private property for public use without just compensation. As the Supreme Court explained in Tyler v. Hennepin County, private property can be defined by “draw[ing] on existing rules or understandings about property rights.” The Court identified state law as “one important source,” but importantly, not the only one. In this workshop, we seek scholarly papers exploring the other sources of private property, and how should they be used to define private property rights protected by the Takings Clause?

Property rights are often analogized to a “bundle of sticks,” an idiom derived from a 1928 treatise authored by then-New York Court of Appeals Judge Benjamin Cardozo, Paradoxes of Legal Science. As Cardozo explained, the “bundle of power and privileges to which we give the name of ownership” embodies property rights. Since at least 1979 in Kaiser Aetna v. United States, the Supreme Court has utilized the “bundle of sticks” analogy to determine whether the government must pay compensation for the seizure or overregulation of what the Court deems “essential sticks.”

But what are those sticks, and from what sources (e.g., common law, Magna Carta) do they originate? Which sticks, if taken by the government, trigger the Fifth Amendment’s mandate that the government compensate the owner? And has the bundle-of-sticks metaphor helped or harmed the protection of private property?

This research roundtable seeks papers that offer fresh ideas on the nature of the private property protected by the Fifth Amendment, which may address questions such as: besides the “right to exclude,” what are other “essential sticks” in the bundle of private property rights? Are some sticks more “essential” than others, and if so, why? And how should private property rights be analyzed according to background principles? We welcome proposals that look at this problem from legal, historical, economic, political, and related angles, including empirical and nonempirical approaches.

Possible Topics

1. What is “private property” within the meaning of the Fifth Amendment Takings Clause?
2. What is an “essential” private property right, the taking of which mandates compensation under the Takings Clause?
3. What are the “essential sticks” in the bundle of private property rights under common law? Beyond the “essential stick” of the right to exclude, what other sticks are “essential” or particularly significant?
4. How does a doctrine of private property law become “deeply rooted” in English or American law? What private property rights qualify as proverbial “corn” in Magna Carta, which merit protection under the Takings Clause? What constitutes sufficient history and/or tradition meriting protection of a private property right?
5. Does a rule protecting a private property right by some threshold number of states necessitate that right’s protection by other states, even if it is contrary to a state’s own law?
6. Is there a federal common law of private property that extends beyond state law? If so, does that common law lay a floor of protection below which a state may not take private property without compensation? How can or should federal common law control state property law?
7. Does “property” have different meanings in different parts of the Constitution?
8. How are property and property rights defined in and shaped by state constitutions?
9. How does the definition of “private property” by the Supreme Court differ from the definitions proposed by scholars like Michael A. Heller and James Salzman (in Mine!), Bart J. Wilson (in The Property Species: Mine, Yours, and the Human Mind), and/or Howard Mansfield (in The Habit of Turning the World Upside Down: Our Belief in Property and the Cost of That Belief)?
10. Is the “bundle of sticks” analogy the best way to analyze private property and property rights? Can the analogy be refined or improved?
11. Does the “bundle of sticks” analogy comport with the original public meaning of “private property” at the ratification of the Fifth Amendment in 1791 or the Fourteenth Amendment in 1868?

Research Proposal Submission Details

We invite you to submit a brief research proposal that describes your thesis and how your research will contribute to the legal issues described above. Proposals should be submitted by August 15, 2025, to Steve Davis at . Early proposal submission is encouraged, as proposals will be reviewed on a rolling basis, and approvals will allow authors to begin work early.

Honorarium and Research Roundtable

Authors of accepted papers will receive a $4,000 honorarium. Authors will benefit from robust feedback on their research. Paper drafts are due two weeks before the research roundtable but need not be in polished or publishable form. Authors will present their papers in person at the research roundtable at Pacific Legal Foundation’s office in fall 2025. Each author will be expected to discuss and comment on others’ papers. We will cover the cost of hotel accommodations and reasonable travel expenses to the roundtable. We encourage authors to seek publication in an academic journal after the research roundtable. Drafts will be posted on PLF’s SSRN page.