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Property's Boundaries, James Toomey
Property's Boundaries, James Toomey
Elisabeth Haub School of Law Faculty Publications
Property law has a boundary problem. Courts are routinely called upon to decide whether certain kinds of things can be owned--cells, genes, organs, gametes, embryos, corpses, personal data, and more. Under prevailing contemporary theories of property law, questions like these have no justiciable answers. Because property has no conceptual essence, they maintain, its boundaries are arbitrary--a flexible normative choice more properly legislative than judicial.
This Article instead offers a straightforward descriptive theory of property's boundaries. The common law of property is legitimated by its basis in the concept of ownership, a descriptive relationship of absolute control that exists outside of …