Crypto and the Property Question

52 Pages Posted: 24 Feb 2025 Last revised: 26 Mar 2025

See all articles by Andrea Tosato

Andrea Tosato

Southern Methodist University - Dedman School of Law

Christopher K. Odinet

Texas A&M University School of Law

Date Written: February 24, 2025

Abstract

Is crypto property? The proliferation of digital assets such as cryptocurrencies, stablecoins, memecoins, and NFTs has confronted legal systems worldwide with three interdependent challenges: determining whether they are property, identifying their appropriate classification within property taxonomies, and establishing rules for their circulation in commerce. Our Article addresses this tripartite question—the Property Question—within American law.

The stakes here are significant. Billions of dollars in digital assets are traded daily, used as collateral, and held by custodial platforms. Yet all these transactions rest on an unresolved premise: that digital assets can be owned and are governed by established property rules. This fundamental uncertainty affects everything, spanning the recovery of stolen cryptocurrencies, customers’ rights in crypto platform bankruptcies, good faith purchaser protections, and even tax and accounting.

This Article makes two primary contributions. First, we provide a comprehensive analysis of digital assets as property under American law, examining both the historical development and the current framework under the new Article 12 of the Uniform Commercial Code. Second, through this investigation, we illuminate a broader pattern in the evolution of American property law: formalistic reasoning and traditional categories, such as choses in action and chosesin possession, have given way to a more functional approach that prioritizes alignment with market practices and societal expectations.

Answering theProperty Question yields significant normative insights. We clarify uncertainties that presently beset property rights in digital asset markets, thereby establishing solid foundations for regulatory interventions in this space. Furthermore, our analysis sheds light on how American law understands and governs personal property, revealing a distinct approach that favors pragmatism over doctrinal purity. Together, these insights not only help us navigate the rapid evolution of digital assets but also offer a blueprint for incorporating future forms of intangible property into our legal system.

Keywords: UCC, Uniform Commercial Code, Commercial Law, CER, Controllable Electronic Record, Crypto, Bitcoin, Bankruptcy, Contract Law, Secured Transactions, Sales, Property Theory, Property Law

Suggested Citation

Tosato, Andrea and Odinet, Christopher K., Crypto and the Property Question (February 24, 2025). Florida Law Review, Forthcoming (2026), Texas A&M University School of Law Legal Studies Research Paper Forthcoming, SMU Dedman School of Law Legal Studies Research Paper No. 681, Available at SSRN: https://ssrn.com/abstract=5151907 or http://dx.doi.org/10.2139/ssrn.5151907

Andrea Tosato

Southern Methodist University - Dedman School of Law ( email )

P.O. Box 750116
Dallas, TX 75275
United States

HOME PAGE: http://www.smu.edu/law/faculty/profiles/tosato-andrea

Christopher K. Odinet (Contact Author)

Texas A&M University School of Law ( email )

1515 Commerce St.
Fort Worth, TX Tarrant County 76102
United States

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