The Idea of Property: Its Meaning and Power

Hardcover | February 1, 2003

byLaura Underkuffler

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Legal scholars and philosophers have long been engaged in what has been called 'the pursuit of the holy grail of property' - the secret of the internal structure of property in law. Attempts to capture the idea of property have encountered two fundamental problems. First, it has beennotoriously difficult to advance beyond the observation that property involves 'ownership' of 'things', with the incidents of ownership and the list of things owned an essentially descriptive task. Second, it is difficult to explain the wildly inconsistent power that property rights - even whenidentified - seem to enjoy.In this book, Professor Underkuffler advances our understanding of what property is, as an idea, and the power that claimed property rights should have against competing public interests. There is, she argues, a deeper analytical structure of the idea of property that we can uncover, and - as aresult of that discovery - deeper reasons that we can find for property's variable power. It is not a random or unprincipled event that property generally protects in cases involving land titles or patent claims, and fails to protect in cases involving environmental regulation or redistributivetaxation. She argues that these results are driven - indeed, predetermined - by the nature of property, as an idea, and the conflicts of that idea with competing public interests. The implications of this book are far-reaching. It explains and justifies - on new grounds - why some property claims are traditionally powerful in law, and others not. It suggests how property rights in controversial or emerging areas should be treated, such as those involving the body asproperty, personal information as property, cultural property, and state redistributive claims. Finally, it establishes why the protection of property is, in fact, necessarily different from freedom of speech, freedom of religion, due process of law, and other rights - necessitating its differenttreatment, and lesser protection, as a constitutional right.

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Legal scholars and philosophers have long been engaged in what has been called 'the pursuit of the holy grail of property' - the secret of the internal structure of property in law. Attempts to capture the idea of property have encountered two fundamental problems. First, it has beennotoriously difficult to advance beyond the observa...

Laura S. Underkuffler is Professor of Law at Duke University, Durham, North Carolina. She has previously taught at a number of universities in the United States, including the University of Pennsylvania and Georgetown University, and has been a visiting scholar at the Woodrow Wilson International Center for scholars in Washington, D.C...

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Format:HardcoverDimensions:206 pages, 9.21 × 6.14 × 0.67 inPublished:February 1, 2003Publisher:Oxford University PressLanguage:English

The following ISBNs are associated with this title:

ISBN - 10:0199254184

ISBN - 13:9780199254187

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Table of Contents

Property as Idea: The Hidden Structure of Property in Law1. What Is Property? The Question Posed2. Property's Four Dimensions: Theory, Space, Stringency, and TimeProperty as Protection: The Clash Between Property Rights and Competing Public Interests3. The Power of Property Claims in Law: The Emergence of Two Visions4. Two Conceptions of Property: Their (Hidden) Influence in Law5. The Variable Power of Rights: A Normative Hypothesis6. Predicting the Power of Claimed Rights: A Two-Tiered Model7. The Variable Power of Property Rights: Explaining the (Otherwise) Inexplicable in Law8. Moving to More Uncharted and Controversial Waters: The Body as Property, Personal Information as Property, Cultural Property, and State Redistributive Claims9. Property, Speech, and the Politics of Presumptive Power10. Reimagining Public Interests: A Cautionary Note11. Reprise: Two Conceptions of Property -- When and Why They are Used in LawProperty as a Constitutional Right: New Directions12. The Justice Content of Property: Constitutional Implications13. Doctrinal Payoffs: New Approaches to Takings Law14. The Constitutional Protection of Property: Some Final Thoughts