Property as Intangible Property

Historically, property theory has focused on real property as the premier example of property, reflecting the longstanding importance of land as a source of wealth and political power. This essay argues that it is time for property theorists to pay more attention to intangible property. It makes three main points. First, it emphasizes the contemporary economic importance of intangible property, as well as its increasing social importance in everyday life, especially in highly urbanized, developed countries. Second, it posits that the currently prevalent thing-based understanding of property is sufficiently capacious to embrace intangible property. Third, it speculates about why property theory has remained largely focused on tangible forms of property. It concludes by underscoring potential benefits of property theory paying greater attention to intangible property: an expanded focus on intangible property might lead to greater recognition of the constrained character of property in the modern urbanized world, and greater acknowledgment of the potential for property—albeit likely in a constrained form—to play a role in addressing the consequences of modern technology.