INTRODUCTION I. THE PROPERTY MATRIX A. The Right to Exclude B. The Bundle of Rights C. The Autonomous Interests D. The Economic Interests E. The Property Matrix II. ANALYZING INTANGIBLE "PROPERTY" RIGHTS UNDER THE MATRIX A. Property Under the Mail and Wire Fraud Statutes 1. The Right to Control--United States v. Wallach 2. Wallach's Right to Control Under the Property Matrix a. The Wallach Interest on the Descriptive Plane b. The Wallach Interest on the Normative Plane 3. Confidential Business Information-Carpenter v. United States 4. Confidential Information Under the Property Matrix a. The Confidential Information in Carpenter on the Descriptive Plane b. The Confidential Information in Carpenter on the Normative Plane B. Marital Property--The Professional Degree 1. Are Professional Degrees Property? 2. Professional Degrees Under the Property Matrix a. Professional Degrees on the Descriptive Plane b. Professional Degrees on the Normative Plane C. Client Lists--Amortization and Trade Secrets 1. Newark Morning Ledger Co. v. United States 2. Client Lists Under the Property Matrix a. The Client List on the Descriptive Plane b. The Client List on the Normative Plane D. Organs for Transplant 1. Colavito v. New York Organ Donor Network, Inc 2. Organs for Transplant Under the Property Matrix a. Organs for Transplant on the Descriptive Plane b. Organs for Transplant on the Normative Plane CONCLUSION INTRODUCTION
When we see an object, a laptop sitting on a library desk, or a parcel of land, we have no difficulty recognizing that someone probably owns it. Most people in our society (save, perhaps, for legal scholars and thieves) instinctively perceive tangible objects as property and appreciate the concomitant responsibilities imposed on owners and the public. In other words, trespasser-George knows best not to take the computer from the desk, or to walk onto fenced-off land without permission--the duties (or obligations) that property imposes on him. Owner-Mary knows that she is entitled to do with her land as she pleases (within reasonable limitations set by the State)--her privileges as a property holder. (1) Mary also knows that she has unique recourses against George, were George to interfere with her property--her rights as an owner.
Thus, property serves as a signaling device that informs the holder and all others how to interact with the thing, and what they may or may not do with it. Property scholars consider this signaling function to be a crucial element of property. (2) Indeed, recognizing a thing as property could disturb the signaling function embedded in a given object, thereby forcing individuals to recalibrate their understanding of the rights and obligations that attach to it (3): George and Mary would no longer know how to interact with the thing. (4) Similarly, when courts equivocate on their recognition of a given thing as property, they compromise the efficacy of property's signaling function. The operation of property as an effective means of signaling obligations and privileges depends on our ability to identify a thing as property and the consistency of the categorization system that we employ.
While it is easy for us to recognize a tangible object as property, (5) we are less comfortable recognizing an intangible thing, such as trade secrets, news, advanced degrees, or our time, as property. The same goes for objects that, though tangible, lie too close to the boundaries of ethics and bodily autonomy when identified as property. We find it unconscionable to think of organs, limbs, sperm, (6) DNA, or bone marrow as property, for instance. (7) We also experience discomfort when asked to determine whether what I call "semitangibles" enjoy property-law protection. These semitangibles might include an email server or information traveling between computers and Internet service providers.
Because of these ambiguities, I propose an analytical tool (which I call the "property matrix") to aid scholars, legislators, and lawyers in tackling the question, "Is this property?" I argue that we can create guidelines to answer this question even before we have academic consensus on a comprehensive definition of property, so that we may respond to pressing concerns about whether a given thing should be so labeled. Instead of defining what property is, my aim with the property matrix is more impressionistic; it is, to borrow a concept from Justice Stewart, an "I know it when I see it" understanding of property. (8)
In Part I, I provide an overview of our current understanding of property. I then describe a two-part test--the property matrix--to determine whether a given thing should be considered property. In Part II, I identify six contexts in which courts have struggled with defining and applying principles of property. I then compare these six "case studies" against the property matrix. In my conclusion, I posit that there may be varying degrees of property rights--weak, medium, and strong--and I suggest that each level gives rise to different groupings of obligations and privileges.
THE PROPERTY MATRIX
There are three circumstances under which the question, "Is this thing property?" might arise in court: under the takings doctrine, (9) when property is a required element in a statutory cause of action, (10) and when a court is reviewing the remedies that an alleged property holder has at his disposal against an intrusion or interference. (11) In these circumstances, courts ultimately seem to be asking the same question: Should we label this (be it bone marrow, an attorney's time, trade secrets, etc.) property? Though not uncontroversial, once we decide whether the analyzed thing is property, certain consequences follow naturally. (12) A court's answer to the seemingly simple question of whether a given thing constitutes property is crucial. In any of these three circumstances--when dealing with "new" or ambiguous forms of property--this question will be the most litigated issue.
Given the prominence of property in our legal system, it is surprising that there is no universally accepted definition of the concept. (13) Nevertheless, scholars do agree that property has certain characteristics. Most theorists concede that the institution of property describes the rights that a person has over a given resource (or thing), and not the resource itself. (14) Theorists also agree that property rights are rights in rem, (15) or rights against the world--that is to say, rights held by the property owner that apply against any other person. (16) An in rem right attaches to the thing--unlike an in personam right that attaches to an individual (the right-holder). (17) Other points of agreement include the notion that property can be either tangible or intangible; that property is more than just possession; and that property can be private, common, or public. (18) All of these points of agreement lie on what I call a "descriptive plane": they describe the form and effect of a property right. (19) However, scholars disagree on "the nature and content" (20) of these rights, arguing on what I call the "normative plane" of property. (21) Given the lack of consensus on what these rights entail--and as I do not advocate any one of the current theories--four conceptualizations of "the nature and content" of property define the normative plane: the right to exclude, the bundle of rights, autonomous interests, and economic interests.
The Right to Exclude
Some property theorists equate property with the right to exclude others from the thing owned. (22) Blackstone defined property as the "sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe." (23) While some argue that the right to exclude "is both a necessary and sufficient condition of property," (24) others argue that it is only a necessary condition. (25)
Generally, scholars liken the right to exclude to the legal consequence of granting the property holder injunctive relief against a trespass. (26) Although the right does encompass such injunctive relief, it is not synonymous with the right to judicial relief. (27)
The guiding principle under the right to exclude is that others should not trespass onto one's property, and that, depending on the circumstances, one has the right to resort to self-help to exclude others from one's property, or to seek remedial relief.
The Bundle of Rights
Under this conceptualization, the owner holds an assortment (or bundle) of rights as to the thing. The Supreme Court described the bundle as "a collection of individual rights which, in certain combinations, constitute property." (28) The right to exclude is just one of several rights in this collection; furthermore, one cannot determine ex ante whether removing a given right would so alter the bundle that it would effectively undermine the "propertied" nature of the thing. (29) A.M. Honore enumerated these rights or "incidents" attendant to property as
the right to possess, the right to use, the right to manage, the right to the income of the thing, the right to the capital, the right to security, the rights or incidents of transmissibility and absence of term, the prohibition of harmful use, liability to execution, and the incident of residuarity. (30) Courts often describe exclusion as an "essential stick" in the bundle; however, under this conceptualization, property is not destroyed by the subtraction of the right to exclude. (31) Once "property is affected with a public interest, (32) the right to exclude is seen as secondary to other rights and privileges. Ultimately, according to the legal realists--the main proponents of the bundle of rights conceptualization--"property has been destroyed as a useful concept," because property, "merely describes a collection of legally protected interests that can be disaggregated into their component parts...