The Property Matrix: An Analytical Tool to Answer the Question, “Is This Property?”
While it is easy for us to recognize a tangible object as property, 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, DNA, or bone marrow as property, for instance. 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.
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.
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Jennifer C. Daskal