Private property: conceptual and normative analyse

Private property: conceptual and normative analyse

Private property: conceptual and normative analyses (property rights, intellectual property)

Wenar, Leif Edward.

online access from Digital Dissertation Consortium
Thesis (Ph.D.)–Harvard University, 1997.

Summary
 This thesis offers conceptual and normative analyses of private property. Chapter one presents a conceptual analysis. Chapters two and three use this analysis to address prominent theories of what kind of property rights we ought to have. Chapter four criticizes the dominant legal conception of property, and chapter five reconceptualizes intellectual property while evaluating the application of various philosophical theories to it. The main conclusions of these chapters are that there is a coherent and interesting core conception of property, and that the justifiability of any set of property rights will turn on how those rights bear on a diverse set of human interests.
 Chapter one demonstrates that the core conception of property can be identified with the objects of a two-layered structure of Hohfeldian rights. This conception is shown to lie at the overlap of other conceptions of property (commodities, assets, etc.), and to be helpful in describing the complexities of modern property systems.
 Chapter two criticizes familiar Lockean arguments (labor-mixing, desert, etc.) that purport to establish the contemporary relevance of original acquisition of private property.
 Chapter three probes the libertarian disregard for the patterns of ownership that would be generated by a strong right to transfer property. It argues that libertarians can only justify their favored right by referring to the patterns of interests that would result from the right’s exercise. Topics include taxation and self-ownership.
 Chapter four traces the history of interpretation of the takings clause of the US Constitution from the point when the legal academy embraced a mistaken conception of what property is. It explains how the improbable idea that property is rights (not things) drew commentators such as Michelman, Sax, and Epstein toward unnecessarily counterintuitive readings of the clause.
 Chapter five finds that copyright is importantly different from property rights in tangible things. Lockean and Hegelian approaches to copyright are therefore found to be substantially misconceived. Libertarian and law-and-economics approaches to copyright are conceptually better, but do not adequately represent the value pluralism that is integral to all plausible property law.