Progressive Property in Action : The Land Reform (Scotland) Act 2003

This article responds to a material deficit at the heart of American property law scholarship. For years, property scholars have debated whether the right to exclude deserves to be the centerpiece of our property regime in the United States. This article seeks to transform that debate by introducing to an American audience a remarkable piece of property legislation recently enacted in Scotland. Part I of the Land Reform (Scotland) Act 2003 creates a right of responsible, non-motorized access across almost all land and in-land water in Scotland, private as well as publicly owned, for purposes of recreation, education and passage. This legislation thus reverses the traditionally robust, ex ante presumption in favor of a landowner's right to exclude and replaces it with an equally robust, ex ante presumption in favor of the public's right of responsible access. By introducing this new property right in Scotland and creating an entire property regime to contextualize the right, a regime that is much bolder, in fact, than has been established in England and Wales under the better known Countryside and Rights of Way Act 2000, Scotland has provided property scholars with a case study in property law institutional design that is unique in modern legal systems. This article will demonstrate how the LRSA reveals that it is possible for a property regime to promote the ends of human flourishing without necessarily sacrificing all of the efficiency gains and coordination benefits that flow from the common law's traditional preference for rules of exclusion