Intangible Property

Contact: James Grimmelmann

This section considers forms of property that cannot be seen with the eye or held in the hand. Such property raises significant conceptual issues, but, simply put, it is too significant for the legal system to ignore. You have already seen a few examples: corporate shares, for example, are a mixture of voting rights and claims to the income the corporation produces; they give a measure of control over tangible corporate assets, but they are very much distinct from those assets. And contract rights – particularly through the alchemy of assignability and negotiability – come to seem like property rights, too: companies regularly pledge their accounts receivable as security for loans, and no one bats an eye at the intangibility of the account receivable (or of the creditor’s rights under the loan, for that matter). You have also now seen how people frequently hold intangible interests even in tangible property: a nonpossessory lien is such an interest, and you will meet many more in the study of real property. As you read the cases in this section, consider not just whether the things they describe are “property,” but also whether they are “things” in the first place. To create a system of property rights, a legal system needs to be able to identify the things that are the subject of those rights, to decide who owns those things, and to be able to say when an owner’s rights have been violated. Are these tasks systematically harder for intangibles, and if so, why?