Property's Boundaries

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, the Article 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 and which 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.

Keywords: property, bioethics, property theory, private law theory, law and technology, jurisprudence, adjudication, intellectual property