Property Entitlements and Legal Personhood: A Conception of the Property Entitlement Based on a Unified View of Anti-Interference and Anti-Discrimination Rules with Respect Both to Interests Related to Existing Assets and Interests Predicated on Transactions

Abstract

Since Hohfeld at least, the property entitlement has been conceived paradigmatically as a unitary entitlement form that excludes non-consensual interference with a holder's entitlement by some class of other persons but which permits the entitlement holder to transfer the entitlement to other persons, and other persons to seek its transfer, pursuant to any consensual transaction. Thus, the background presumption, of most legal theorists or of the Supreme Court, has been that any entitlement conceived as a property entitlement is presumptively subject to consensual bargaining in the same manner as any other, be it a parcel of land or a Constitutional right. This article refers to an interest of a holder that is protected by one or more legal duties of a class of other persons to the holder not to engage in non-consensual interference with the interest as a standard or property entitlement of such person and as an entitlement protected by one or more rules. A person's market property entitlements might be thought of as comprising the legally inviolable content of such person with respect to non-consensual acts by other persons.But the law, in defining the legal content of persons, also assigns certain of a person's interests a higher degree of legal inviolability by protecting them with rules in addition to anti-interference rules in specified or, in rare instances, all transactional settings. This article refers to a person's interest that is protected by an anti-discrimination rule with respect to a specified range of transactions and a specified class of prospective transaction counterparties as a property entitlement. Structuring a holder's interest as a strong property entitlement imparts to each member of such class of prospective counterparties a duty to the holder not to determine not to enter into any such transaction with the holder on the basis of the holder's uninterrupted possession of the interest or, for those interests that are predicated on the transaction itself, on the basis of the holder's securing the interest as an entitlement in connection with the transaction. It is important to recognize that for an interest that is predicated on a transaction that such interest must be protected by an anti-discrimination rule, and thus structured as a strong property entitlement, in order to be a property entitlement, or a right, at all. A person's strong property entitlements may be thought of as constituting the legally intrinsic content of a person from the perspective of prospective transaction counterparties in applicable transactional settings and might be thought of as comprising the inviolable legal content of a person with respect to consensual activity by other persons.Failure consistently to recognize the distinction between market property entitlements and strong property entitlements on the one hand and the distinction between interests related to existing assets and interests predicated on transactions on the other has resulted in instances of imprecise judicial reasoning and legal scholarship. It is hoped that a revised organization of property entitlements that recognizes these two distinctions will contribute to more accurate interpretation of existing statutory and constitutional entitlements as well as to improved design of new legal entitlements.