For most of the past century, scholars in the Anglo-American legal tradition have been skeptical of the view that legal ownership is a matter of possessing any single right. They have advocated the view that ownership is a "bundle of rights" arising from individual judicial decisions in widely diverse cases (e.g., the rights to lease, sell, subdivide, and tax). Accordingly, the concept of ownership per se does not constrain judges' decisions in the resolution of conflicts regarding property use, since the set of rights corresponding to ownership is itself a product of earlier judicial decisions and is open ended. This theory has been criticized by recent proponents of an older view—that ownership is a basic right to exclude others from a particular thing. According to this "boundary theory," appealing, in judicial reasoning, to the right to exclude others is by definition equivalent to appealing to ownership, and so the concept of ownership constrains judicial reasoning.

But while the boundary theory properly recognizes that there is a concept of ownership that constrains legal decisions, it fails to explain crucial features of ownership. Indeed, we might better characterize the view as a theory of nonownership. Its focus is on the position of nonowners, defined in terms of a general duty not to cross the boundaries of objects one does not own. The boundary theory, in effect, relies on a process of elimination to distinguish owners from nonowners: an owner is the last person left after the exclusion of everyone else from the object owned. But this provides only the weakest possible account of the owner's special position: by default the owner is the only one at liberty to use the object after the exclusion of others.

While there is a grain of truth in the boundary theory inasmuch as ownership is an exclusive right, the boundary theory wrongly assumes that what it means for ownership to be exclusive is just that others generally have a duty to exclude themselves from the object owned. However, there is a distinction between a right's being exclusive in the sense that it excludes others from the object of the right and its being exclusive in the sense that its holder occupies a special position that others do not share. A third theory, the "agenda-setting theory," regards ownership as an exclusive right in the second sense but not the first. What it means for ownership to be exclusive is that owners are in a special position to set the agenda for a resource (e.g., farm owners determining the specific uses of their land). The law preserves the exclusivity of ownership not by excluding others, but by harmonizing their interests with the owner's agenda-setting authority. This, rather than the boundary theory's "exclusivity," is the essence of ownership.