The Thing and Judicial Methodology in Resolving Novel Property Claims: It Matters When It Matters

Abstract

This article explores, in a very preliminary way, two issues that emerge when Bruce Ziff’s identification of two judicial methodologies in resolving novel property claims is coupled with the two currently dominant theories of property. First, that there is an intuitive correspondence, or correlation, between judicial approach and theory of property produces two correlatives — the attributes-property as things correlative, and the functional-property as relations correlative. And, second, in neither of the two correlatives is the thing or subject-matter of property merely a dispensable backdrop to the inquiry; rather, for both, the thing remains absolutely essential to understanding what property is and concluding that it exists in any given case. But less certainty exists as to when a court must take account of the thing in the context of a discrete novel property claim. Perhaps the most that can be claimed is that it matters when it matters.