Information Costs, Economic Efficiency and Complexity

97 Abstract Over the past three decades, Professor Henry Smith and Professor Thomas Merrill have collaborated to develop a concept of property that aims to redefine property with an irreducible core: the right to exclude. Their essentialist view has gained significant attention today, particularly due to their use of information cost theory to justify why the right to exclude — serving as the primary rule for delineating entitlements — constitutes this core. Smith and Merrill argue that structuring property law around a simple exclusion rule while reserving more complex governance rules for exceptional cases enhances economic efficiency by reducing information costs. This paper challenges their simplicity-based entitlement delineation framework from two perspectives. First, the framework is not as simple as Smith and Merrill suggest, as their attempt to limit complex governance rules to exceptional cases is not entirely successful. Second, their prioritization of simplicity for the sake of economic efficiency comes at the cost of overlooking non-economic values. In addition, they fail to establish that preserving simplicity is superior to embracing a more complex approach.