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’sidentification of two judicial methodologies in resolving novel property claims is coupledwith the two currently dominant theories of property. First, that there is an intuitivecorrespondence, or correlation, between judicial approach and theory of property producestwo correlatives — the attributes-property as things correlative, and the functional-propertyas relations correlative. And, second, in neither of the two correlatives is the thing orsubject-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 thatit exists in any given case. But less certainty exists as to when a court must take account ofthe thing in the context of a discrete novel property claim. Perhaps the most that can beclaimed is that it matters when it matters.