Back to the Future: Intellectual Property and the Rediscovery of Property Rights - and Wrongs

Abstract

Not too long ago Property Law was in danger of becoming a dinosaur. What has brought Property back from the brink of first year extinction is the continuing importance of "the thingness of it." The classic account of Property's distinctiveness is that the legal relationships between people are mediated by their relationship to a thing. When the "thing" is important, or the allocation of rights uncertain, Property becomes the stuff of struggle, philosophy and the first year introduction to law. When the allocation of rights becomes so settled that the course focus shifts too completely to the mindnumbing welter of real estate transactions and land use regulations, property as a unified and distinctive concept loses its way.

At the present time the allocation of property rights and the creation of a structure for governance is again engaging the legal imagination. The first year course accordingly examines the question "what is property" in greater depth and considers how the allocation of property rights governs new technologies and the relationships between those involved.

This essay examines these materials, and explain how they frame the way we teach the rest of course. It emphasizes, first, how we use Johnson v. M'Intosh, the Native American land rights case that now opens many property texts, to introduce the idea that property regimes are legal constructs, chosen rather than ordained within particular contexts. Second, it examines the messages that come out of the wild animal cases and compares them to the similar conclusions that come from INS v. AP. and the intellectual property challenges involving Bette Midler and Vanna White. Third, it discusses Moore and Hecht, and the contrasting ideas of property and contract. It ends with the frozen embryos cases and Shack, and the continuing tensions between public policy and the allocation of private interests.

Keywords: Property Law, Property Rights, Governance, Land Use, Teaching, Contract, Property, Public Policy, Private Interests, Allocation

JEL Classification: K10, K11, K12