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Property in Persons
Contact: Rebecca Tushnet
Is there something special about calling a right a “property” right? Property usually has a standard set of attributes, including alienability and in particular market-alienability: the owner’s ability to transfer the property through sale. These attributes – sometimes known as sticks in the bundle of rights that makes up property – can often be removed and added without changing a thing’s status as property. However, the more the bundle at issue differs from from the standard “property” bundle, the more it seems like the legislature should decide the exact contours of the right rather than calling it property and giving it the standard set of property attributes by default.
Another way of looking at the question is to ask whether anything is inherent in the concept of property. That is, does property define what you can do to what you “own”? If the answer is yes, that may be a reason to refuse to allow certain things to become property, like people or their parts. If the answer is no, then what purpose is the label property serving?
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