The property matrix: An analytical tool to answer the question, "is this property?"

University of Pennsylvania Law Review

Volumn 161, Issue 4, 2013, Pages 1125-1164

  Morales, Francisco J ^a  

^a UNIVERSITY OF PENNSYLVANIA LAW SCHOOL   (United States)

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EID: 84875463069     PISSN: 00419907     EISSN: 19428537     Source Type: Journal    
DOI: None     Document Type: Note

References (131)

1. See Shyamkrishna Balganesh, Demystifying the Right to Exclude: Of Property, Inviolability, and Automatic Injunctions, 31 HARV. J.L. & PUB. POL'Y 593, 602-05 (2008) [hereinafter Balganesh, Demystifying] (discussing the "right-privilege distinction").
2. See, e.g., Carol M. Rose, Possession as the Origin of Property, 52 U. CHI. L. REV. 73, 81-82 (1985) ("[C]lear titles facilitate trade and minimize resource-wasting conf[l]ict.").
3. Cf. Thomas W. Merrill & Henry E. Smith, Optimal Standardization in the Law of Property: The Numerus Clausus Principle, 110 YALE L.J. 1, 47 (2000) ("The one out of one hundred who adopts a nonstandard form for property rights can increase the costs of processing the rights of ninety-nine others.").
4. See generally Melvin C. Fredlund, Wolves, Chimps and Demsetz, 14 ECON. INQUIRY 279 (1976).
5. Cf. J.E. Penner, The "Bundle of Rights" Picture of Property, 43 UCLA L. REV. 711, 804 (1996) ("What makes it impossible to conceive of certain rights as property rights, such as the right not to be murdered or the right to assemble or the right to marry or the right to make binding agreements, is that one cannot conceive of how such rights could be separated from a person.... ").
6. Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring).
7. See, e.g., State v. Lynch, 796 P.2d 1150, 1153, 1160-62 (Okla. 1990) (holding that forcing an attorney into representing indigent defendants may result in a violation of the Takings Clause).
8. See, e.g., Intel Corp. v. Hamidi, 71 P.3d 296, 303-04 (Cal. 2003) (reviewing possible remedies for interference with a company's email server by a disgruntled former employee)
9. Moore v. Regents of Univ. of Cal., 793 P.2d 479, 487-97 (Cal. 1990) (discussing whether to grant individuals property rights over their bodily cells).
10. Abraham Bell & Gideon Parchomovsky, A Theory of Property, 90 CORNELL L. REV. 531, 533 (2005) ("[E]veryone knows what [property] is, but no one can define it.").
11. See THOMAS W. MERRILL & HENRY E. SMITH, PROPERTY 8-11 (2010) (describing the centrality of "thingness" to the concept of property)
12. Thomas W. Merrill, Property and the Right to Exclude, 77 NEB. L. REV. 730, 731-32 (1998) ("[N]early everyone agrees that the institution of property is not concerned with scarce resources themselves ('things'), but rather with the rights of persons with respect to such resources.").
13. See Wesley Newcomb Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning, 26 YALE L.J. 710, 718-20 (1917) (defining paucital (in personam) and multital (in rem) rights).
14. Thomas W. Merrill & Henry E. Smith, The Property/Contract Interface, 101 COLUM. L. REV. 773, 790 (2001) [hereinafter Merrill & Smith, Property/Contract Interface] (describing property as an in rem right)
15. see also IMMANUEL KANT, METAPHYSICAL ELEMENTS OF JUSTICE 58 (John Ladd trans., Hackett Publ'g Co. 2d ed. 1999) (1797) ("The usual definition of a right in a thing (iues reale, ius in re) is that 'it is a right against every possessor of the thing.'").
16. Henry E. Smith, Exclusion and Property Rules in the Law of Nuisance, 90 VA. L. REV. 965, 981 (2004) ("Exclusion is a low-cost, but low-precision, method that relies on rough informational variables like boundaries to define legal entitlements.").
17. WILLIAM BLACKSTONE, COMMENTARIES 2.
18. See, e.g., Kaiser Aetna v. United States, 444 U.S. 164, 179-80 (1979) (describing the right to exclude as "a fundamental element of the property right")
19. Shyamkrishna Balganesh, Quasi-Property: Like, But Not Quite Property, 160 U. PA. L. REV. 1889, 1899 (2012) [hereinafter Balganesh, Quasi-Property] ("Central to the idea of property is exclusion.").
20. United States v. Craft, 535 U.S. 274, 278 (2002).
21. A.M. Honoré, Ownership, in OXFORD ESSAYS IN JURISPRUDENCE 107, 113 (A.G. Guest ed., 1961).
22. See, e.g., PruneYard Shopping Ctr. v. Robins, 447 U.S. 74, 82, 83 (1980) (describing the right to exclude as "one of the essential sticks in the bundle of property rights," but nevertheless requiring a mall owner to allow petitioners to "exercise [their] state-protected rights of free expression and petition").
23. Joseph William Singer, No Right to Exclude: Public Accommodations and Private Property, 90 NW. U. L. REV. 1283, 1458-59 (1996).
24. Alice Haemmerli, Whose Who? The Case for a Kantian Right of Publicity, 49 DUKE L.J. 383, 414 (1999).
25. Howard Williams, Kant's Concept of Property, 27 PHIL. Q. 32, 32-33 (1977). For purposes of this Comment, I assume that Kantian property includes intangibles. Perhaps this assumption is unfair.
26. See Margaret Jane Radin, Market-Inalienability, 100 HARV. L. REV. 1849, 1894 n.165 (1987) ("[T]here had seemed to be no place at all for intangible property in Kant's theory of possessio noumenon.").
27. See ARTHUR RIPSTEIN, FORCE AND FREEDOM: KANT'S LEGAL AND POLITICAL PHILOSOPHY 93 (2009) ("Your right to property is your right to limit the conduct of others in relation to particular things.").
28. But see Yochai Benkler, Siren Songs and Amish Children: Autonomy, Information, and Law, 76 N.Y.U. L. REV. 23, 61 (2001) ("[P]ervasive recognition of property rights in the information environment imposes an overall cost on autonomy.").
29. G.W.F. HEGEL, OUTLINES OF THE PHILOSOPHY OF RIGHT para. 44 (Stephen Houlgate ed., T.M. Knox trans., Oxford Univ. Press 2008) (1821)
30. See Margaret Jane Radin, Property and Personhood, 34 STAN. L. REV. 957, 960 (1982) ("Once we admit that a person can be bound up with an external 'thing' in some constitutive sense, we can argue that by virtue of this connection the person should be accorded broad liberty with respect to control over that 'thing.'").
31. Harold Demsetz, Toward a Theory of Property Rights, 57 AM. ECON. REV. 347, 348 (1967).
32. See Brett M. Frischmann & Mark A. Lemley, Spillovers, 107 COLUM. L. REV. 257, 264 n.21 (2007) (characterizing Demsetz's theory as descriptive)
33. see also Thomas W. Merrill, Introduction: The Demsetz Thesis and the Evolution of Property Rights, 31 J. LEGAL STUD. S331, S333 (2002) ("[Demsetz's] article is about the evolution of 'property,' but at different times it offers different definitions of the institution of property that have different implications for the scope of the argument.").
34. See, e.g., CAROL M. ROSE, PROPERTY AND PERSUASION: ESSAYS ON THE HISTORY, THEORY, AND RHETORIC OF OWNERSHIP 51-55 (1994) (analyzing the wealth-enhancing conception of property)
35. In a recent paper, Yun-chien Chang and Henry E. Smith describe the "three essential features" of property as being "in rem status, the right to exclude, and running with assets." Yunchien Chang & Henry E. Smith, An Economic Analysis of Civil Versus Common Law Property, 88 NOTRE DAME L. REV. (forthcoming 2013) (Feb. 17, 2012 draft at 24), available at http://ssrn.com/abstract=2017816.
36. See, e.g., Jacque v. Steenberg Homes, Inc., 563 N.W.2d 154, 159 (Wis. 1997) ("[I]n certain situations of trespass, the actual harm is not in the damage done to the land, which may be minimal, but in the loss of the individual's right to exclude others from his or her property.").
37. See, e.g., 18 U.S.C. §§ 1341, 1343 (2006).
38. United States v. Autuori, 212 F.3d 105, 115 (2d Cir. 2000) (citation omitted). Aside from the difference in the method of communication, courts construe the mail and wire fraud statutes identically. United States v. Siegel, 717 F.2d 9, 13-14 (2d Cir. 1983).
39. See, e.g., 1 JOEL ANDROPHY, WHITE COLLAR CRIME § 8:1 (2d ed. 2011) (describing the mail fraud as "a powerful tool employed by prosecutors against a litany of crimes")
40. MICHAEL S. KIM & JONATHAN D. COGAN, WHITE COLLAR CRIME: DEBTOR-CREDITOR FRAUD § 1:13 (2009-2010 ed. 2009) (describing the mail fraud statute as a "versatile tool")
41. MARVIN PICKHOLZ, SECURITIES CRIMES § 5:28 (November 2011) ("A prominent feature on the terrain of federal law enforcement since its enactment in 1872, the mail fraud statute remains the prosecutors' tool of choice against business and regulatory offenses because of its breadth, flexibility and ease of application to almost every variant of fraudulent conduct.").
42. McNally v. United States, 483 U.S. 350, 366 (1987) (Stevens, J., dissenting), superseded by statute, 18 U.S.C. § 1346
43. See 484 U.S. 19, 25 (1987) ("McNally did not limit the scope of § 1341 to tangible as distinguished from intangible property rights.").
44. Pub. L. No. 100-690, § 7603, 102 Stat. 4508 (1988) (codified at 18 U.S.C. § 1346).
45. Skilling v. United States, 130 S. Ct. 2896, 2931 (2010).
46. See Randy M. Mastro & Lee G. Dunst, White Collar Crime ("In the aftermath of Skilling and Black [v. United States, 130 S. Ct. 2963 (2010)], federal prosecutors are scrambling to preserve many of their hard-fought white collar convictions under the honest-services theory."), in 10 BUSINESS AND COMMERCIAL LITIGATION IN FEDERAL COURTS § 112:36 (Robert L. Haig ed., 3d ed. 2012).
47. See Siegelman & Scrushy-Post Skilling-Is 1346 Really Necessary? WHITE COLLAR CRIME PROF BLOG (Jan. 20, 2011), http://lawprofessors.typepad.com/ whitecollarcrime-blog/2011/01/siegelman-scrushy-post-skilling-is-1346-really- necessary.html ("The Supreme Court has clearly held that 'money or property' includes intangible property.... To include 'intangible rights' is therefore unnecessary for the prosecution of criminal misconduct." (internal citation omitted)).
48. See United States v. Speight, 75 F. App'x 802, 804-05 (2d Cir. 2003) (recognizing the right to control one's assets as property)
49. United States v. Dinome, 86 F.3d 277, 284 (2d Cir. 1996) (relying on the "right to control" doctrine to affirm a conviction under the mail fraud statute)
50. United States v. D'Amato, 39 F.3d 1249, 1258-61 (2d Cir. 1994) (affirming the "right to control" theory)
51. United States v. Wallach, 935 F.2d 445, 463 (2d Cir. 1991) (holding that "the withholding or inaccurate reporting of information that could impact on economic decisions can provide the basis for a mail fraud prosecution")
52. see also United States v. Bayly, No. 03-363, 2008 WL 89624, at 4 (S.D. Tex. Jan. 7, 2008) (concluding "that accurate shareholder information is a legally cognizable intangible 'property' right within the meaning of the wire fraud statute"), aff'd sub nom. United States v. Brown, 571 F.3d 492 (5th Cir. 2009).
53. Wallach, 935 F.2d at 450.
54. See Hawley v. City of Malden, 232 U.S. 1, 10 (1914) (noting that previous state cases assumed that "shares are personal property")
55. WILLIAM MEADE FLETCHER ET AL., FLETCHER CYCLOPEDIA OF THE LAW OF CORPORATIONS § 5096 (rev. vol. 2011) ("Under the common law, and some state corporations codes, shares are deemed personal property having the same characteristics as any other property.").
56. See generally 18 U.S.C. §§ 1341, 1343 (2006).
57. Wallach, 935 F.2d at 462.
58. See, e.g., Kaiser Aetna v. United States, 444 U.S. 164, 179-80 (1979) (holding that the government must compensate property owners for taking away only their right to exclude, even if they retain a bundle of other use-rights).
59. See Wallach, 935 F.2d at 462 ("[A]ccording to London and Chinn, [shareholders] were in fact benefitted as a result of their efforts to enhance the value of the corporation's stock.").
60. See, e.g., United States v. D'Amato, 39 F.3d 1249, 1258 (2d Cir. 1994) ("[Shareholders] have property rights of which they may not be fraudulently deprived by 'the withholding or inaccurate reporting of information that could impact on economic decisions.'" (quoting Wallach, 935 F.2d at 463)).
61. Wallach, 935 F.2d at 463.
62. Cf. Zohar Goshen & Gideon Parchomovsky, On Insider Trading, Markets, and "Negative" Property Rights in Information, 87 VA. L. REV. 1229, 1267 (2001) (arguing for the assignment of property-derived obligations "to insiders with respect to inside information").
63. See Wallach, 935 F.2d at 463 ("The importance of this right to information is recognized by the statutes and rules that govern the operation of a publicly held corporation.").
64. United States v. Wallach, 935 F.2d 445, 462 (2d Cir. 1991).
65. Wallach, 935 F.2d at 462.
66. See Wallach, 935 F.2d at 462 (arguing that accurate information is necessary to permit shareholders to prevent harmful corporate activity).
67. See F.A. Hayek, The Use of Knowledge in Society, 35 AM. ECON. REV. 519, 521-26 (1945) (postulating that knowledge accumulation maximizes a system's efficiency)
68. See Carpenter v. United States, 484 U.S. 19, 26 (1987) (listing cases recognizing confidential business information as property).
69. See United States v. Winans, 612 F. Supp. 827 (S.D.N.Y. 1985), aff 'd sub nom. Carpenter, 484. U.S. 19. 144 Carpenter, 484 U.S. at 25 (citation omitted).
70. Compare Carpenter, 484 U.S. at 22 (protecting the "point of view" of stocks reviewed in the column), with Int'l News Serv. v. Associated Press, 248 U.S. 215, 236 (1918) (protecting news as "quasi property" involving two competing news services, "irrespective of the rights of either as against the public"), and Nat'l Basketball Ass'n v. Motorola, Inc., 105 F.3d 841, 853 (2d Cir. 1997) (recognizing a property right in "time sensitive information" developed by "profit seeking entrepreneurs").
71. Carpenter, 484 U.S. at 23 (reasoning that the opinion component allowed the conspirators "to buy or sell based on the probable impact of the column on the market").
72. Int'l News, 248 U.S. at 234.
73. See Carpenter, 484 U.S. at 26 (describing the Journal's "right in keeping confidential and making exclusive use").
74. See James E. Fleming, The Lawyer As Citizen, 70 FORDHAM L. REV. 1699, 1705 (2002) ("The translator of Kant's The Metaphysical Elements of Justice, John Ladd, has argued with characteristic vigor that '[s]ince... formal organizations are not moral persons, and have no moral responsibilities, they have no moral rights. In particular, they have no moral right to freedom or autonomy.'" (quoting John Ladd, Morality and the Ideal of Rationality in Formal Organizations, 54 MONIST 488, 508 (1970))). Without moral freedom, there cannot be a right to property.
75. See, e.g., In re Marriage of Graham, 574 P.2d 75, 77 (Colo. 1978) (interpreting Colorado's version of the Uniform Dissolution of Marriage Act and concluding that an educational degree "has none of the attributes of property in the usual sense of that term" but rather represents "an intellectual achievement that may potentially assist in the future acquisition of property")
76. In re Marriage of Olar, 747 P.2d 676, 680 (Colo. 1987) (affirming that an advanced degree does not constitute marital property but concluding that the "contribution of one spouse to the education of the other spouse may be taken into consideration when marital property is divided")
77. Mahoney v. Mahoney, 453 A.2d 527, 532-33 (N.J. 1982) (holding that a business degree is not property under New Jersey's marital statute)
78. O'Brien v. O'Brien, 489 N.E.2d 712, 717 (N.Y. 1985) (determining that "it would be unfair not to consider [a medical] license a marital asset")
79. Susan Etta Keller, The Rhetoric of Marriage, Achievement, and Power: An Analysis of Judicial Opinions Considering the Treatment of Professional Degrees as Marital Property, 21 VT. L. REV. 409, 423-35 (1996) (surveying the major cases regarding the imposition of spousal proprietary interests in professional degrees)
80. See William M. Howard, Spouse's Professional Degree or License as Marital Property for Purposes of Alimony, Support, or Property Settlement, 3 A.L.R. 6th 447 (2005) (summarizing the three approaches that courts adopt when determining spousal entitlement to an advanced degree).
81. See N.Y. STATE BAR ASS'N, THE PRACTICE OF LAW IN NEW YORK STATE 19 (2010), available at http://www.nysba.org/Content/NavigationMenu/Publications/ ThePracticeofLawinNewYork Statemembersonly/Practice-of-Law-2012-2013.pdf ("[Y]ou must gain admission to the New York State Bar in order to practice law." (emphasis added)).
82. MICHAEL J. GRAETZ & DEBORAH H. SCHENK, FEDERAL INCOME TAXATION: PRINCIPLES AND POLICIES 341 (6th ed. 2009).
83. See Catherine L. Hammond, The Amortization of Intangible Assets: § 197 of the Internal Revenue Code Settles the Confusion, 27 CONN. L. REV. 915, 925 (1995) (describing Newark Morning Ledger as a "landmark decision"). The question, "Is this property?" also arises in partnership taxation, specifically in I.R.C. § 712 cases.
84. See, e.g., United States v. Stafford, 727 F.2d 1043 (11th Cir. 1984) (discussing whether a partnership interest is taxable property).
85. 507 U.S. 546, 570 (1993).
86. I.R.C. § 197(a), (d) (2006).
87. Newark Morning Ledger, 507 U.S. at 549.
88. See Newark Morning Ledger, 507 U.S. at 551 (stating that Ledger estimated the average subscriber would continue to subscribe to Booth newspapers for 14.7 to 23.4 years and that the value of the paid subscribers could reasonably be estimated at $67,773,000).
89. Newark Morning Ledger, 507 U.S. at 553 (emphasis added).
90. See Heartland Home Fin. v. Allied Home Mortg. Capital Corp., 258 F. App'x 860, 862 (6th Cir. 2008) (refusing to protect "information that is openly available on the market at minimal cost")
91. Sys. Dev. Servs., Inc. v. Haarmann, 907 N.E.2d 63, 76 (Ill. App. Ct. 2009) (holding that the client list of a computer network service provider did not deserve trade secret protection because it was "general information and [wa]s common knowledge to people in the computer service trade or [wa]s otherwise readily available information")
92. Al Minor & Assoc. v. Martin, 881 N.E.2d 850, 855 (Ohio 2008) (protecting an employer's client list against a former employee's misappropriation by memory)
93. Ed Nowogroski Ins. v. Rucker, 971 P.2d 936 (Wash. 1999) (ignoring the "manner of taking a trade secret"-whether by memory or by written copy-to protect a client list).
94. But see DeGiorgio v. Megabyte Int'l, Inc., 468 S.E.2d 367, 369 (Ga. 1996) (ordering the trial court to revise an interlocutory injunction that prevented a party from "utilizing personal knowledge of customer and vender information" because the Georgia Trade Secrets Act only covered tangible client lists)
95. see also Avnet, Inc. v. Wyle Lab, Inc., 437 S.E.2d 302, 305 (Ga. 1993) (interpreting the Georgia Trade Secrets Act to protect "tangible" client lists).
96. See 467 U.S. 986, 1003-04 (1984) ("We therefore hold that to the extent that Monsanto has an interest in its health, safety, and environmental data cognizable as a trade-secret property right under Missouri law, that property right is protected by the Taking Clause [sic] of the Fifth Amendment.").
97. See JOHN LOCKE, TWO TREATISES OF GOVERNMENT 134 (Thomas I. Cook, ed., Hafner Press 1947) (1690) ("Whatsoever then he removes out of the state that nature hath provided and left it in, he hath mixed his labour with, and joined to it something that is his own, and thereby makes it his property.").
98. See, e.g., N. Atl. Instruments, Inc. v. Haber, 188 F.3d 38, 44 (2d Cir. 1999) ("A customer list developed by a business through substantial effort and kept in confidence may be treated as a trade secret and protected at the owner's instance against disclosure to a competitor, provided the information it contains is not otherwise readily ascertainable." (quoting Defiance Button Mach. Co. v. C&C Metal Prods. Corp., 759 F.2d 1053, 1063 (2d Cir. 1985)))
99. Delta Med. Sys. v. Mid-Am. Med. Sys., 772 N.E.2d 768, 781 (Ill. App. Ct. 2002) ("[B]ecause a list of [plaintiffs'] customers can be duplicated with little effort, it was an abuse of discretion for the trial court to find that [plaintiff] presented a fair question that its customer 'list'... was a protectable trade secret.")
100. see also Haber, 188 F.3d at 46 (listing a series of state and federal cases protecting hard-to-duplicate customer lists under New York law).
101. See, e.g., Martin, 881 N.E.2d at 855 (recognizing a client list that was used by a former employee as an employer's trade secret despite the absence of a signed noncompete agreement).
102. See, e.g., Int'l News Serv. v. Associated Press, 248 U.S. 215, 236 (1918) ("The question [as to what is unfair competition] is not so much the rights of either party as against the public but their rights as between themselves.").
103. See, e.g., FMC Corp. v. Taiwan Tainan Giant Indus. Co., 730 F.2d 61, 63 (2d Cir. 1984) (per curiam) (affirming a grant of a preliminary injunction to a plaintiff seeking to prevent a former employee from disclosing information on the plaintiff's insecticide products in violation of a signed noncompete agreement).
104. For instance, in Newark Morning Ledger, the issue was whether the Ledger could depreciate the list of subscribers it obtained when it merged with Herald, which in turn had obtained it from Booth.
105. See Newark Morning Ledger Co. v. United States, 507 U.S. 546, 570 (1993).
106. See, e.g., Liebert Corp. v. Mazur, 827 N.E.2d 909, 921 (Ill. App. Ct. 2005) ("[Plaintiffs] must show they took affirmative measures to prevent others from acquiring or using the information.").
107. Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1002 (1984).
108. Robert W. Hillman, The Property Wars of Law Firms: Of Client Lists, Trade Secrets and the Fiduciary Duties of Law Partners, 30 FLA. ST. U. L. REV. 767, 773-75 (2003) (identifying the way in which law firm "client lists may seem to possess the requisite 'independent economic value' to justify protection as trade secrets" but questioning the applicability of trade secrets doctrine to law firm client lists because of the unique ethical obligations of such firms).
109. See Jonathan R. Chally, Note, The Law of Trade Secrets: Toward a More Efficient Approach, 57. VAND. L. REV. 1269, 1296 (2004) ("[T]rade secrets promote[] efficiency because [they] insure[] that neither the original innovator nor the competitor seeking to obtain the trade secret undertake wasteful activities." (citation omitted)).
110. See Erin Colleran, Comment, My Body, His Property?: Prescribing a Framework to Determine Ownership Interests in Directly Donated Human Organs, 80 TEMP. L. REV. 1203, 1204 (2007) (attributing the reticence of courts to recognize organs as property as reflecting a wider societal fear regarding the sanctity of bodily autonomy).
111. See, e.g., Charles C. Dunham IV, Comment, "Body Property": Challenging the Ethical Barriers in Organ Transplantation to Protect Individual Autonomy, 17 ANNALS HEALTH L. 39, 41 (2008) ("The notion of the body as property (or the commodification of the body) raises ethical concerns and challenges the moral integrity and dignity of the body.").
112. see generally Laura J. Hilmert, Note, Cloning Human Organs: Potential Sources and Property Implications, 77 IND. L.J. 363 (2002).
113. Colavito v. N.Y. Organ Donor Network, Inc., 438 F.3d 214, 217 (2d Cir. 2006).
114. Colavito v. N.Y. Organ Donor Network, Inc., 356 F. Supp. 2d 237, 246 (E.D.N.Y. 2005), aff 'd in part and question certified to state supreme court 438 F.3d 214.
115. Colavito, 438 F.3d at 223-24.
116. See Colavito v. N.Y. Organ Donor Network, Inc., 860 N.E.2d 713, 719 (N.Y. 2006).
117. see Rob Stein, A Struggle to Define 'Death' for Organ Donors, SHOTS: NPR HEALTH BLOG (Mar. 28, 2012, 10:30 AM), http://www.npr.org/blogs/health/2012/03/ 27/149463045/a-struggle-to-define-death-for-organ-donors.
118. See generally Stephen R. Munzer, Kant and Property Rights in Body Parts, 6 CANADIAN J.L. & JURISPRUDENCE 319, 322-41 (1993) (contrasting Kant's explicit objection to the sale of body parts with broad Kantian theoretical approaches to property that suggest the existence of a property interest in a body part).
119. See Craig Anthony (Tony) Arnold, The Reconstitution of Property: Property as a Web of Interests, 26. HARV. ENVTL. L. REV. 281, 325 (2002) ("Radin is especially concerned about commodification of, and harm to, persons and personhood by the commodification of objects that are constitutive of personhood. She contends that there are strong arguments for considering such objects, which she labels 'contested commodities,' to be non-property, market-inalienable property, or property subject to carefully drawn regulations which limit commodification and protect personhood (i.e., partial market-inalienability)." (footnote omitted)).
120. But see Kenyon Mason & Graeme Laurie, Consent or Property? Dealing with the Body and Its Parts in the Shadow of Bristol and Alder Hey, 64 MOD. L. REV. 710, 727 (2001) ("Recognising property rights in our person also facilitates further and better respect for individual autonomy.... ").
121. See, e.g., William Boulier, Note, Sperm, Spleens, and Other Valuables: The Need to Recognize Property Rights in Human Body Parts, 23 HOFSTRA L. REV. 693, 719 (1995) ("A property right in the body should be recognized because it would serve as an important protection in a world where commercial interests in human body parts already exist.")
122. See, e.g., Donald Joralemon, Organ Wars: The Battle for Body Parts, 9 MED. ANTHROPOLOGY Q. 335, 344-47 (labeling as "sellers" those scholars who advocate a property rights recognition in body parts).
123. Cf. State v. Shack, 277 A.2d 369, 372 (N.J. 1971) ("Property rights serve human values. They are recognized to that end, and are limited by it.").
124. Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1001 (1984) (citing Webb's Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 161 (1980) (quoting Bd. of Regents v. Roth, 408 U.S. 564, 577 (1972)).
125. See Barry Lyons, 'The Good That Is Interred in Their Bones': Are There Property Rights in the Child?, 19 MED. L. REV. 372, 393-96 (2011) (exploring the applicability of property principles to bone marrow).
126. See Kermit Roosevelt III, The Newest Property: Reproductive Technologies and the Concept of Parenthood, 39 SANTA CLARA L. REV. 79, 84-87 (1998) ("[C]ourts have generally faced the issue of whether sperm is property under more difficult circumstances-after the death of the donor-without reaching conclusive results.").
127. Intel Corp. v. Hamidi, 71 P.3d 296, 308 (Cal. 2003) (refusing "to create a fiction of injury to the communication system").
128. See generally Deborah Kay Walther, "Ownership" of the Fertilized Ovum in Vitro, 26 FAM. L.Q. 235 (1992).
129. See, e.g., Hecht v. Superior Court, 20 Cal. Rptr. 2d 275, 283 (Ct. App. 1993) (recognizing "[s]perm which is stored by its provider with the intent that it be used for artificial insemination" as property under California's Probate Code)
130. Davis v. Davis, 842 S.W.2d 588, 597 (Tenn. 1992) ("[P]reembryos are not, strictly speaking, either 'persons' or 'property,' but occupy an interim category.... ").
131. See generally Jonathan F. Will, Comment, DNA as Property: Implications on the Constitutionality of DNA Dragnets, 65 U. PITT. L. REV. 129, 139-41 (2003).