What is Property? Putting the Pieces Back Together

Abstract

This article offers an alternative to twentieth-century theories of property, which have eviscerated the concept of property and thereby undermined the policy foundations of property doctrines ranging from eminent domain to intellectual property. The result is that legislators and judges lack the ability to define properly the purpose or the boundaries of the legal doctrines that they are enacting into law or ruling on from the bench. The complaints are omnipresent - from the expansion of legal entitlements afforded to owners of intellectual property to the indeterminacy that plagues the takings jurisprudence. As a solution, this article advances an "integrated" theory that combines the exclusive rights to acquire, use and dispose of one's possessions into a broad concept of property. The integrated theory of property provides a descriptive account of past and present property doctrines, and justifies or critiques the evolution of these doctrines into the twenty-first century.