SPECTRUMS, NESTING, AND NOTICE: A WORKABLE SOLUTION.
One is not an abandonee, a finder, a converter, or any other kind of re-possessor until one acts. A review of the laws of abandonment, destruction, finders, and converters reveals that one cannot really choose to become a finder or an abandonee prior to acting, because it is so far impossible to determine ex ante whether the object was abandoned or lost. A person's sincere desire to avoid becoming a converter only rescues him from criminal sanctions. But there is guidance: the chattels themselves provide clues as to what kind of acquirer a person will become after he takes them. We turn now to those clues.
The Nesting Theory Explained
The critical difference between an abandoned object and a found object is that the abandoned object is no longer owned, whereas the found object is still owned. The solution to the "Cell 1 or Cell 3" difficulty therefore comes from revisiting the signals chattels communicate about ownership. As a preliminary matter, possession itself is, in essence, a communication. It is a "text" that gives notice of ownership, such that a signal of presumptive ownership attaches to objects when they are in someone's possession. (89) The notion that possession communicates something about an object's ownership means, more broadly, that the context in which the object is found can communicate something about its status as presumptively owned or presumptively unowned.
This Section proposes a system, which I call the "nesting theory," for determining whether an object is up for grabs on the basis of the signals the chattel emits. The nesting theory is a three-part analysis, which individuals can use on the cusp of acquisition in the real world, and which courts can use ex post to evaluate the reasonableness of an actor's actions.
The first step of the analysis measures a chattel along two spectrums: the extent to which the chattel identifies its prior owner, and the extent to which the chattel is unique. The chattel's position along these two spectrums indicates whether it emits a strong or a weak signal, communicating whether it is presumptively owned or presumptively unowned.
The second step of the analysis is grounded in physical proximity, and looks to the chattel's surroundings to determine if stronger-signaling objects are nearby. Strong signals can amplify weak signals if the latter are within the former's ambit. Here, special rules emerge for things like collections, and it becomes clear that the two spectrums in step one actually do independent work.
Step three analyzes whether the chattel or its surroundings communicate any overriding notice about whether the chattel may or may not be repossessed. Explicating step three reveals both the function of trash receptacles in the nesting theory and the content of Cell 2 in the matrix. Together, the three steps of the nesting theory make clear whether and why any given chattel in the world is or is not up for grabs.
Signals Along Two Spectrums: Identification and Uniqueness
Here is an extreme, but familiar, example. Walking through downtown Philadelphia, Betty perks up when she sees a five-dollar bill lying in the street. (90) She reaches for it, picks it up, puts it in her pocket, and continues on. Would anyone suggest Betty has done wrong? Certainly not. We all agree that the five-dollar bill was up for grabs. (91) This is true even though it is all but certain that the previous owner did not intentionally deposit his or her five dollars in the street. Knowing that the previous owner would surely be glad to have it back, why does Betty's action--taking the five dollars--provoke no moral outrage? What signal does the five dollars communicate that makes its acquisition morally permissible?
Two equally satisfying answers justify Betty's decision. First, even if she wanted to, we know it would be essentially impossible for Betty to reliably locate the previous owner of this particular five-dollar bill. She found it, after all, in downtown Philadelphia, and the set of possible owners effectively encompasses the whole world. The second justification, and the reason why it is so difficult to identify the previous owner, is that the previous owner himself, were he found, could not be certain this was in fact his five-dollar bill. Cash is the ultimate fungible good, utterly interchangeable, and this five-dollar bill is indistinguishable from every other one. Since the chattel does not identify its owner, and the owner could not recognize his chattel, the relationship between the owner and the chattel has been severed, regardless of the owner's intent. The five-dollar bill is therefore up for grabs.
To consider the opposite extreme, imagine that Betty finds my driver's license in the street. On this little card is printed my photograph, name, address, birthday, height, eye color, and even the fact that I require corrective lenses. Now, with the five dollars, Betty was permitted to behave like an abandonee. May she do the same with my driver's license? Is my driver's license up for grabs? I think we would all agree that the license is different from the five-dollar bill. But why? In my view, there are again two equally satisfying answers. First, unlike the five-dollar bill, my driver's license is one of a kind. Betty knows that this, and this alone, is my driver's license. (92) Second, whereas Betty could not have identified the prior owner of the five-dollar bill even if she tried, the observable characteristics of the driver's license render its true owner unequivocally identifiable. The true owner is the individual depicted and named on the card.
There are, we see, two spectrums at play. The first is the spectrum from utterly fungible goods to unique goods. The second is the spectrum from goods that do not identify their owners to goods that do.
The fungible-unique spectrum calls to mind a more famous spectrum, brought to light and explicated by Margaret Radin: the spectrum (or, as she put it, continuum) from fungible property to personal property. (93) Under Radin's analysis, (94) property exists along a continuum from the personal--"a thing indispensable to someone's being"--to the fungible--"a thing wholly interchangeable with money." (95) Property nearer to the personal end of the continuum is "worthier of protection." (96)
According to Radin, a single object--such as a wedding ring--can change its position along the continuum depending on the "relationship between the holder and the thing" and can change position over time even "without changing hands." (97) It is the "subjective" (98) nature of this relationship that makes the personhood theory of property inutile in solving the Cell 1 or Cell 3 dilemma. Even if it is assumed that personal property (i.e., property bound up with personhood) is never abandoned, a finder cannot accurately assess his rights ex ante because the prior owner's relationship with the object is completely obscured. The actor simply has no way of knowing how bound up any given object is with the prior owner's personhood.
But in a later writing, Radin recanted somewhat, saying, "the issue [of] whether or not something is appropriately considered personal property is not 'subjective,' ... [but] instead depends upon whether our cultural commitments surrounding property and personhood make it justifiable for persons and a particular category of thing to be treated as connected." (99) Here, Radin suggests that courts can and likely do privilege certain entitlements over others without determining whether the specific owner before the court actually had the personal relationship one might typically attribute to a particular kind of object. For example, a party's interest in a wedding ring or leasehold might be privileged in court because such interests are typically and justifiably bound up with personhood, notwithstanding the possibility that a particular plaintiff secretly despises the hypothesized ring or real estate.
For the sequential acquirer, though, the inquiry about what category of objects is or is not typically and justifiably bound up with personhood is not more helpful than was the original chattel-by-chattel approach. As I noted above, proceeding chattel-by-chattel with a personhood analysis would leave the would-be acquirer at square one: guessing at the prior owner's subjective relationship with the chattel. But a category-by-category personhood analysis would paint with too broad a brush. If the approach dictates that whole categories of usually personal items are not up for grabs, and whole categories of usually fungible items are, then the approach is bound to be plagued with too high a margin of error. To accurately and usefully assist the sequential acquirer ex ante, we need a more nuanced approach.
Under my system, an actor considers the position of a chattel along two spectrums: the spectrum from fungible chattels to unique chattels, and the spectrum from chattels that identify their owners to chattels that do not. An item at the fungible and nonidentifying ends of the two spectrums emits weak signals of ownership. Consequently, such an item is presumptively unowned, and up for grabs. An item at the unique and identifying ends of the spectrums emits strong signals of ownership. It is presumptively owned, and not up for grabs. The system does not require any knowledge of the prior owner's intent toward or relationship with the object; rather, the object speaks for itself.
To be sure, the use of two spectrums raises questions: Does one spectrum do more work than the other? Under certain conditions, is one spectrum merely a proxy for the other? And what happens when the two spectrums point in opposite directions? A few examples provide clear answers to these questions. (100)
As I use the term, nesting is the theory by which a chattel emitting a weak signal can amplify its signal by its proximity to a stronger-signaling...