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Vol 21 No 11 Nov/Dec 2016

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The Idea of Property: Its Meaning and Power

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Laura UnderkufflerProfessor of Law, Duke University

ISBN13: 9780199254187
ISBN: 0199254184
Published: February 2003
Publisher: Oxford University Press
Country of Publication: UK
Format: Hardback
Price: £78.00



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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 been notoriously 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 when identified - 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 a result 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 redistributive taxation. 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 as property, 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 different treatment, and lesser protection, as a constitutional right.

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Subjects:
Property Law, Jurisprudence
Contents:
PROPERTY AS IDEA: THE HIDDEN STRUCTURE OF PROPERTY IN LAW; 1. What Is Property? The Question Posed; 2. Property's Four Dimensions: Theory, Space, Stringency, and Time; PROPERTY AS PROTECTION: THE CLASH BETWEEN PROPERTY RIGHTS AND COMPETING PUBLIC INTERESTS; 3. The Power of Property Claims in Law: The Emergence of Two Visions; 4. Two Conceptions of Property: Their (Hidden) Influence in Law; 5. The Variable Power of Rights: A Normative Hypothesis; 6. Predicting the Power of Claimed Rights: A Two-Tiered Model; 7. The Variable Power of Property Rights: Explaining the (Otherwise) Inexplicable in Law; 8. Moving to More Uncharted and Controversial Waters: The Body as Property, Personal Information as Property, Cultural Property, and State Redistributive Claims; 9. Property, Speech, and the Politics of Presumptive Power; 10. Reimagining Public Interests: A Cautionary Note; 11. Reprise: Two Conceptions of Property -- When and Why They are Used in Law; PROPERTY AS A CONSTITUTIONAL RIGHT: NEW DIRECTIONS; 12. The Justice Content of Property: Constitutional Implications; 13. Doctrinal Payoffs: New Approaches to Takings Law; 14. The Constitutional Protection of Property: Some Final Thoughts