American Property

American Property

STUART BANNER
Copyright Date: 2011
Published by: Harvard University Press
https://www.jstor.org/stable/j.ctt24hjqn
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  • Book Info
    American Property
    Book Description:

    What is property? Stuart Banner here offers a guided tour through the many manifestations, and innumerable uses, of property throughout American history. From indigenous culture to our genes, from one’s celebrity to Internet content, American Property reveals how our ideas of ownership evolve to suit our ever-changing needs.

    eISBN: 978-0-674-06082-1
    Subjects: Law, History

Table of Contents

  1. Front Matter
    (pp. [i]-[iv])
  2. Table of Contents
    (pp. [v]-[viii])
  3. Introduction
    (pp. 1-3)

    When Richard Newman died in Los Angeles in 1997, his body was taken to the county coroner’s office for a routine autopsy. Two years later, Newman’s father learned that during the autopsy the coroner had removed his son’s corneas without asking the family’s permission. At the time, this was the office’s normal practice. It was the product of both high and low motives. There was a desperate shortage of corneas for transplant, and corneas must be transplanted very soon after death, often too soon to obtain the consent of the next of kin. On the other hand, this same shortage...

  4. 1 Lost Property
    (pp. 4-22)

    It had been “a complete revolution,” one lawyer recalled in 1829, a transformation producing “a substantial improvement” in the lives of Americans. “What abundant reason have we to be satisfied with our condition,” another exclaimed the following year, now that Americans had been “disencumbered from most of the burthensome and intricate legal regulations” that had fettered them in the past.¹ This was the language of July 4 speeches in the early republic, but these lawyers were not celebrating the Declaration of Independence or the successful outcome of the war. They were talking about the law of property.

    American lawyers marveled...

  5. 2 The Rise of Intellectual Property
    (pp. 23-44)

    In his New and General System of Physic, published in 1769, the London physician William Smith reported the results of several medical experiments carried out by others, but scarcely any that he performed himself. “We are grieved at his extreme reservedness,” one reviewer despaired. “What a niggard this Doctor is of his own, and how profuse he is of other people’s intellectual property!”¹

    As this quotation suggests, people were speaking of intellectual property at least as early as the middle of the eighteenth century, but the term had a slightly different meaning. Today it connotes legally enforceable rights in products...

  6. 3 A Bundle of Rights
    (pp. 45-72)

    Lawyers speak of property as “a bundle of rights.” As the best-selling introduction to the subject explains, “property is an abstraction. It refers not to things, material or otherwise, but to rights or relationships among people with respect to things. And the abstraction we call property is multi- not monolithic. It consists of a number of disparate rights, a ‘bundle’ of them: the right to possess, the right to use, the right to exclude, the right to transfer,” and so on.¹ This conception of property is conventionally traced to the progressives and Legal Realists of the early twentieth century, and...

  7. 4 Owning the News
    (pp. 73-93)

    Most of the news in an early American newspaper was copied from other newspapers. The four-page Connecticut Courant, published weekly in Hartford, was a typical paper of the era. Of the twenty-two stories in its issue of May 21, 1822, fifteen bore notations that they had previously been published elsewhere. None of the other seven was about Connecticut—one was from as far away as Delaware—so some or even all of these might have been copied as well. No one would have thought the Courant was doing anything wrong. The news was “common property,” one New Jersey editor explained.¹...

  8. 5 People, Not Things
    (pp. 94-108)

    As the modern regulatory state gradually formed between roughly 1870 and 1940, contemporaries detected a change in the relationship between government power and private property rights. “With moral progress,” one proponent of regulation declared in 1901, “men learn to place the public welfare before the individual interest.” When property rights conflicted with human needs, explained Theodore Roosevelt shortly after his presidency ended, “human rights must have the upper hand, for property belongs to man and not man to property.” Throughout the period, the federal and state governments created new institutions like regulatory agencies and enacted new laws governing matters like...

  9. 6 Owning Sound
    (pp. 109-129)

    For most of human history, sound was ephemeral. Once produced it could not be stored or reproduced; it was gone forever. The only way to sell it was as live performance, and that was a task easily handled by existing property law, because rights to hear sound could be sold in the form of tickets to enter concert halls. That changed with the invention of sound recording in the late nineteenth century. When sound could be stored it could be sold in new ways. Now there were gains to be had from establishing a system of property rights in it....

  10. 7 Owning Fame
    (pp. 130-161)

    The blockbuster performer of the mid-nineteenth century was the Swedish soprano Jenny Lind, whose 1850–1852 tour of the United States packed concert halls from New York to New Orleans and back again. Lind’s promoter was P. T. Barnum, no stranger to innovative ways of making money. Everywhere the tour went, shopkeepers were selling Jenny Lind merchandise. “We had Jenny Lind gloves,” Barnum later recalled, “Jenny Lind bonnets, Jenny Lind riding hats, Jenny Lind shawls, mantillas, robes, chairs, sofas, pianos—in fact every thing was Jenny Lind.” There were Jenny Lind stoves and even Jenny Lind chewing tobacco and cigars,...

  11. 8 From the Tenement to the Condominium
    (pp. 162-180)

    “In America there are so to speak no tenant farmers,” Alexis de Tocqueville supposedly discovered while touring the United States in the 1830s. “Every man is the owner of the field he cultivates.” Yet by the end of the nineteenth century fewer than half of white Americans, and fewer than a quarter of African Americans, owned their own homes. And by the early twenty-first century the nature of home ownership itself was changing, as nearly six million homes, more than 5 percent of the country’s housing stock, were either condominiums or cooperatives, forms of ownership that did not exist in...

  12. [Illustrations]
    (pp. None)
  13. 9 The Law of the Land
    (pp. 181-201)

    Peter McKone was a house builder in Hartford, Connecticut, in the later part of the nineteenth century. At his place of business on Sheldon Street, near downtown Hartford, he had a few different power saws, two planing machines, a molding machine, and a mortising machine, all powered by an on-site steam engine. Sheldon Street was full of similar enterprises. Right next door was the National Screw Company, which rented parts of its property to the American Paper Barrel Company, the Bailey Letter Press Company, and the Capewell Horse Nail Company, as well as a firm with an exciting if unproven...

  14. 10 Owning Wavelengths
    (pp. 202-219)

    By 1910, a mere fourteen years after Guglielmo Marconi secured the first radio patent, the United States Navy counted more than 1,500 transmitting stations throughout the world, including several hundred in the United States or aboard American ships, and the navy was not even including transmitters operated by amateurs. Radio was not yet used for broadcasting. It was a method of point-to-point communication, a substitute for the telegraph that needed no wires and was thus especially useful at sea. The airwaves, however, were already growing congested. Users of the new wireless telegraphy were beginning to interfere with each other’s messages...

  15. 11 The New Property
    (pp. 220-237)

    The mid-twentieth century was an era of profound changes in constitutional interpretation. Some of the major Supreme Court cases of the period are household names, like Brown v. Board of Education and Roe v. Wade. Others are famous only among lawyers. Goldberg v. Kelly is in this second category. In Goldberg, decided in 1970, the Court decided that the right to receive government benefits for the poor is a kind of property protected by the Constitution, and thus that officials cannot terminate welfare payments without first holding a hearing to give disappointed claimants a chance to object. Goldberg fundamentally changed...

  16. 12 Owning Life
    (pp. 238-256)

    Some of the most difficult property questions of the late twentieth century involved the ownership of living things. Should human body parts be treated as property? Could one own new life-forms, or even portions of the human genome? In one sense these were new questions, thrust into popular consciousness by rapid technological change. In another sense, however, they were not so new. The late twentieth century was not the first time Americans had contemplated the ownership and sale of human bodies and their parts, nor was it the first time they had created new kinds of living organisms. In drawing...

  17. 13 Property Resurgent
    (pp. 257-275)

    “You all have come a long way since the old days,” Roger Marzulla told the participants at a 2006 symposium held at the Santa Clara University School of Law. Marzulla was a Santa Clara alumnus, he explained, but “we didn’t have any get-togethers like this symposium when I was at Santa Clara some thirty-five years ago.” The topic of the gathering was the importance of property rights as reflected in recent Supreme Court cases. Similar meetings were taking place across the country, in response to what seemed to be growing support for property in a wide range of contexts, from...

  18. 14 The End of Property?
    (pp. 276-292)

    “Information wants to be free,” declared the counterculture impresario Stewart Brand in the early years of the personal computer—free in the sense of not costing anything, and free in not being owned.¹ The quotation became something of a motto among Internet-focused intellectuals in the following two decades who shared Brand’s sense that the digital revolution would have profound effects on property. “I believe that all generally useful information should be free,” agreed Richard Stallman, the computer programmer best known for his view that there should be no property rights in software. “By ‘free’ I am not referring to price,...

  19. Abbreviations
    (pp. 293-294)
  20. Notes
    (pp. 295-346)
  21. Acknowledgments
    (pp. 347-348)
  22. Index
    (pp. 349-356)