J Maria Glover, A Regulatory Theory of Legal Claims, 70 Vanderbilt Law Review 221 (2017). Oftentimes when we call a thing someone’s ‘property’, we do so to invoke a very specific picture of the owner’s rights to that thing. To call something ‘property’ often entails significant limits to what one can do to regulate the thing. The Due Process Clause and Takings Clause both enter the picture. Even outside of legal discourse, the term ‘property’ has a rhetorical power that brings to mind what Blackstone called the ‘sole and despotic dominion’ one can exercise over the thing. That is why ‘[m]ine is often one of the first words toddlers learn’. To quote an old American Express commercial, ownership, like membership, ‘has its privileges’. So one would think that conceptualizing a thing as ‘property’ would have an important effect on how we think about the thing. But what if it doesn’t? … (more)
[Sergio J Campos, JOTWELL, 23 March]
First posted 2017-03-24 08:27:56
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