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.