Quasi-property: like, but not quite property.

Author:Balganesh, Shyamkrishna

Quasi-property interests refer to situations in which the law seeks to simulate the idea of exclusion, normally associated with property rights, through a relational liability regime, by focusing on the nature and circumstances of the interaction in question, which is thought to merit a highly circumscribed form of exclusion. In this Article, I unpack the analytical and normative bases of quasi-property interests, examine the primary triggering events that cause courts to invoke the category, and respond to potential objections to the recognition of quasi-property as an independent category of interests in the law.

INTRODUCTION I. THE IDEA OF QUASI-PROPERTY INTERESTS A. Triggering Exclusion 1. Status 2. Context 3. Conduct B. Signaling Relational Exclusion II. REASONS FOR QUASI-PROPERTY INTERESTS A. Affirmative Influences 1. Preserving Economic Value 2. Creating an Identifiable Focal Point for Coordination 3. Expanding Remedial Options B. Negative Influences 1. Avoiding Expressive Commodification 2. Preserving the Ethereality of Subject Matter 3. Tailoring the Res to the Actio III. POSSIBLE OBJECTIONS A. Sporadicity of Usage B. Incoherence from Metaphorical Use C. Beyond Formalism CONCLUSION INTRODUCTION

Tort, contract, and property have long been taken to be the foundational categories of the common law. (1) Very roughly speaking, tort law deals with the breach of obligations imposed by law, contract law with the creation and breach of voluntary obligations, and property law with the rights and duties that relate to "things." To this threefold classification, courts and scholars have added two more hybrid categories: quasi-contract and quasi-tort. (2) The law of quasi-contract deals with situations where the law implies the existence of contract-like obligations based on a party's actions, and the law of quasi-tort (or quasi-delict) refers to the law's recognition of an obligation on the part of one party to compensate another for reasons resembling actionable wrongdoing. (3)

So if the law of quasi-contracts deals with contract-like situations that aren't strictly contractual, and the law of quasi-torts with tort-like scenarios that aren't purely delictual, does a more prominent category of situations exist where the law creates property-like entitlements, but recognizes them to be something other than truly proprietary in character? Could it be that the idea of property is sufficiently loose and open-ended so as to accommodate all property-like situations? In this Article, I argue that there is indeed a coherent category of property-like interests best defined by the term "quasi-property." This category consists of situations where the law attempts to simulate the functioning of property's exclusionary apparatus through a relational liability regime.

The idea of "quasi-property" is today commonly associated with the Supreme Court's decision in International News Service v. Associated Press, (4) a decision credited with developing the common law doctrine of information misappropriation. (5) Speaking for the majority, Justice Pitney recognized the right of an information gatherer to prevent a competitor from free riding on the original gatherer's labor for a limited period of time. (6) What distinguished the interest recognized by the Court from property, however, was that it would only ever exist between the two parties in question and never in the abstract against the world at large. (7) Justice Pitney therefore used the term "quasi property" to describe the entitlement. (8) In the years since the opinion, hardly anyone has attached any significance to Justice Pitney's use of the term to describe this peculiar bilateral interest in exclusivity. (9)

Justice Pitney's use of the term "quasi property" was, however, very deliberate. Beginning in the nineteenth century, common law courts came to characterize some interests that sought to mimic the functioning of property solely as a mechanism of liability, as quasi-property in nature. Rather prominent among these was a person's right to control the corpse of a dead relative--known as the right of "sepulcher"--interferences with which were rendered actionable. (10) In both the sepulchral rights and International News Service contexts, the law's choice of quasi-property instead of property was both conscious and analytically significant.

A property right has long been thought to center around the idea of exclusion, and is often described as entailing the "right to exclude." (11) The right to exclude is in turn believed to operate in rein (i.e., against the world at large). (12) The interest that the Court created in International News Service, however, was consciously tailored to avoid being in rem. (13) Neither was it in personam (i.e., against a specified party, a characteristic commonly associated with contractual rights). Rather, the right was to operate against a specified class of actors, and only ever upon the occurrence of a specific triggering event. (14) Through the use of a tailored liability framework, the law sought to replicate the functioning of property rights as exclusionary entitlements. A resource would thus become owned only within this highly contextual setting, while independent of it, the resource remained unowned, thereby endowing it with a distinctively chameleonic character. The entitlement that the Court created was therefore entirely relational and marked a major departure from the in rem idea commonly associated with traditional property.

Quasi-property interests thus involve the use of a relational entitlement mechanism to simulate property's exclusionary framework within limited settings. As a category, its significance is more functional than just taxonomical. A relational entitlement to exclude has a fundamentally different signaling effect from an equivalent entitlement created by the traditional right to exclude commonly associated with property. The distinction maps onto (but remains distinct from) the difference between simple and relational legal directives used to distinguish between the functioning of the tort and criminal law systems. Whereas criminal law communicates direct (and therefore simple) legal commands in the nature of "X act is prohibited" or "every X act will result in Y punishment," a liability framework (such as tort or unjust enrichment) merely specifies what individuals in a particular relationship to each other are meant to do or not do. (15) These communications are thus of the form "A should/should not perform X act on B," where A and B are specified by class or context. Translated into the property context, traditional property rights communicate a simple directive to the world at large that relates to an identified resource (i.e., the res). Property scholars have described this signaling as the directives of "abstention," "forbearance," or "inviolability." They signal to the world: stay away--this resource is owned. (16)

A quasi-property right, by contrast, doesn't communicate the same message. Instead, its directive operates in much the same way as those of tort law--i.e., it merely signals to one party to stay away from an actual or fictional resource only when the two parties stand in a particular relationship to each other, which is in turn activated by certain triggering facts. These triggering facts may be the parties' statuses vis-a-vis each other, the specific actions that one or both of them undertake, the peculiarities of the context within which the parties interact over the resource, or some combination of the three. Until one party comes to be identified as standing in a particular relationship towards the other (as recognized by the directive), no signal of exclusion is communicated. This triggering is crucial and is indeed one of the most unique features of a quasi-property interest. As a direct result of the emphasis on the parties' relationship, an exclusionary signal never attaches to the resource itself in the abstract; instead, this signal is mediated through the relationship.

This Article does three things. First, it unbundles the analytical framework underlying the concept of quasi-property by focusing on how quasi-property interests differ from traditional property rights. Second, it shows why, in some situations, the law might choose to characterize some interests as quasi-property rather than as property, and in the process attempts to identify the law's principal motivations for choosing one over the other. Third, it shows that the set of quasi-property interests in the law might in reality be much more expansive than is currently believed.

The normative theme underlying much of this Article is that, while the idea of property in law has at once expanded as a category and at the same time come to be endowed with ideological significance, its core architectural framework as a legal institution has fallen into neglect in most contexts. (17) The costs of this neglect are more than just academic, since the concept of property exerts a huge influence on people's perceptions and incentives in different settings. Identifying a set of entitlements that are "like, but not quite" property--quasi-property--will go some distance in maintaining the conceptual and analytical integrity of property as a normatively important institution under the law.

The Article unfolds in three main parts. Part I sets out the idea of quasi-property by focusing on the signaling effects of exclusionary interests created through relational liability regimes. In the process, it endeavors to show that there is indeed a common underlying framework that connects these seemingly disparate interests characterized as quasi-property, and that this framework derives from the fundamentally different way in which these interests operationalize the idea of exclusion. Part II builds on the structural framework of the previous Part by exploring possible reasons why the law might choose to regulate a particular...

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