Laura S. Underkuffler

The Idea of Property: Its Meaning and Power

Recent events have moved questions about the nature and power of property into the center of academic, political, and legal debate. The goal of this book is to advance a new way to understand the idea of property, and what - in law - the power of claimed individual property rights should be. The book begins by describing the strain that exists between private propertys protective ideals and the exigencies of modern governance. Environmental laws, zoning regulations, endangered-species laws, cultural-property laws, and other measures have overwhelmed traditional ideas about what property is and the extent to which it should be protected. Some have concluded that we have simply abandoned traditional notions of property-as-protection in favor of an idea of property that confers much greater collective control. I argue that we have multiple conceptions of property in law - some which protect, and some which do not. I argue that there are deep reasons for propertys protective power, or lack of it - reasons grounded in the nature of property, as an idea, and in the conflicts of that idea with competing public interests. In Part I of the book, I critique conceptions of property offered in the philosophical and legal literature and offer a different way to understand this important idea. I argue that property is, in fact, comprised of four dimensions: theory, space, stringency, and time. Using this insight, I identify two common conceptions of property in law: one which protects, and one which does not. I then explore how these different conceptions of property subtly influence our thinking about the nature of property and its protective force. Part II begins with a general discussion of the nature of legal rights and competing public interests. It describes how, under the traditional view, rights enjoy presumptive power against competing public interests. However, this view fails to describe many relationships between rights and public interests that we find in law. I advance a theory that explains this seeming paradox, and propose a model which predicts when - in the settings of particular claims - claimed rights will (and should) enjoy presumptive power. In the following chapters, I apply this model to the particular context of property claims. Chapters in this part explore an array of legal contexts, and whether - in those contexts - claimed individual property rights should enjoy presumptive power against competing public interests. These include claims involving title to land and chattels; exclusion from land; patent claims; environmental, zoning, and other land-use controls; the body as property; personal information as property; cultural property; state redistributive claims; and others. I show that although affording property claims presumptive power is justified in some cases, in others it is not. Indeed, property is unique among rights in the justified failure of its claim to presumptive power across a broad range of cases. This is - I argue - not an aberrational or unprincipled result, as some have charged. Rather, it is an entirely predictable and justified one, particularly in cases involving external, physical, finite resources. Part III explores the implications of these discoveries for the protection of property as a constitutionally entrenched guarantee. I argue that the nature of property renders it fundamentally different in critical ways from freedom of speech, freedom of conscience, due process of law, and other rights. This necessitates its different treatment (and lesser protection). It also compels state recognition of redistributive issues, and - in some circumstances - compels state assertion of redistributive claims.