Document Type

Article

Abstract

Property law has a boundary problem. Courts are routinely called upon to decide whether certain kinds of things can be owned--cells, genes, organs, gametes, embryos, corpses, personal data, and more. Under prevailing contemporary theories of property law, questions like these have no justiciable answers. Because property has no conceptual essence, they maintain, its boundaries are arbitrary--a flexible normative choice more properly legislative than judicial.

This Article instead offers a straightforward descriptive theory of property's boundaries. The common law of property is legitimated by its basis in the concept of ownership, a descriptive relationship of absolute control that exists outside of the law. Ownership's limits thus lie at the limits of absolute control--that which cannot in principle be the subject of human dominion cannot be owned. In short, this Article both offers a comprehensive explanation for why a conceptual theory of property's limits matters and how one can be possible, and defends a substantive theory of the concept of ownership as control.

Under this theory, cells, organs, gametes, embryos, and corpses can be owned. But information--like genes and personal data--that cannot be controlled cannot be owned. Viewed through this lens, intellectual property-- a challenge for any theory of property that appears to entail ownership in information--can be understood either as a statutory analogy or a rough approximation of the real but temporary control of information exercised by those who create or discover it.

Download

Share

COinS