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  A patent right, a copyright, a right of action, an easement, an incorporeal hereditament, may be property as valuable as a granite quarry; and the owner of such property may be practically deprived of it,-such property may be practically taken from its owner,-although it is not corporeal. So those proprietary rights, which are the only valuable attributes or ingredients of a landowner's property, may be taken from him, without an asportation or adverse personal occupation of that portion of the earth which is his. . . . Property is taken when any one of those proprietary rights is taken, of which property consists.24

  The case that was most influential in highlighting this dephysicalized definition of property was Pumpelly v. Green Bay Co.,25 decided by the U.S. Supreme Court in 1871. Pumpelly involved the question of compensation for the destruction of property due to flooding caused by a governmentally authorized dam. In rejecting the traditional distinction between direct and consequential damages, Justice Samuel F. Miller wrote that "[i]t would be a very curious and unsatisfactory result, if . . . the government . . . can destroy [property's] value entirely, can inflict irreparable and permanent injury . . . without making any compensation, because, in the narrowest sense . . . it is not taken for the public use. . . . " 26

  Though the broadest implications of Pumpelly only gradually emerged, the case immediately presented a challenge to the prevailing idea that a taking constituted either a physical trespass or appropriation of title. Instead, it soon came to stand for the increasingly prevalent proposition that all restrictions on the use of property that diminished its market value were takings in the constitutional sense. By 1893, Pumpelly was being cited to support the expansive conclusion that any interference with the future income stream of an owner constitutes a taking of property. 27

  Property and Expectations

  As legal thinkers sought to move away from physicalist definitions of property, they found it necessary to find some more abstract measure of interference with those "bundles of rights" that legal writers and judges now identified with increasing frequency as constituting property. They tended, therefore, to turn to "market value" as the common denominator for measuring whether an interference with property represented a taking.28 Indeed, there seems to have been a convergence between writings in law and those in economics, which with increasing regularity identified "market price" as the closest practical measure of objective value.29

  The abstraction of property into market value at once freed the legal system from an increasingly archaic emphasis on physical invasion and brought to the surface many more fundamental difficulties that a concrete and tangible conception of property had been able to avoid.

  With the development of the market value theory of property, legal thinkers were forced to face a basic contradiction in all legal theories of property built upon market value. How does one avoid the conclusion that any governmental activity that changes expectations and hence lowers the value of property constitutes a taking? While this question had emerged very early in American constitutional history, the legal conceptions then prevailing made it possible to avoid seeing its full implications.

  At the heart of the post-Revolutionary American constitutional system was the principle that all retroactive lawmaking was an interference with property rights. The story of precisely how this principle was worked into American constitutional doctrine is long and complex. The problem appeared for the first time in the very early case of Calder v. Bull (1798) 30 in which the U. S. Supreme Court wrestled with the constitutional status of an act by the Connecticut legislature ordering a court to grant a new trial to a losing litigant. The case is famous for the Supreme Court's determination that the constitutional bar on ex post facto laws was limited to crimes and hence did not apply to the Connecticut legislature's actions. Since the meaning of the ex post facto clause was the only question formally submitted to the Court, the judges' more general unease with non-criminal retroactive laws did not find focused constitutional expression. Nevertheless, Justice James Iredell's defense of the constitutional validity of civil retroactive laws was perhaps the earliest expression of the fear that such a restriction would bring all governmental change to a halt. "The policy, the reason and the humanity of the prohibition" against retrospective criminal laws, Iredell wrote,

  do not . . . extend to civil cases that merely affect the private property of citizens. Some of the most necessary and important acts of legislation are, on the contrary, founded upon the principle, that private rights must yield to public exigencies. Highways are run through private grounds; fortifications, light-houses, and other public edifices, are necessarily sometimes built upon the soil owned by individuals. In such, and similar cases, if the owners should refuse voluntarily to accommodate the public, they must be constrained, so far as the public necessities require; and justice is done, by allowing them a reasonable equivalent. Without the possession of this power, the operation of government would often be obstructed, and society itself would be endangered.31

  At this very early point in American constitutional history, the dilemma was clearly stated. How could one bar all retroactive laws while still managing to avoid the absurd conclusion that every governmental action that interferes with settled expectations is unconstitutional?

  Within two decades after Calder v. Bull was decided, the contracts clause of the Constitution came virtually to serve as a civil anti-retroactivity provision. 32 Through a series of distinctions thereafter developed under the contracts clause, however, the Supreme Court managed to avoid having to face the basic contradiction that if property rights consist of stable expectations, all changes in legal rules can be regarded as governmental interference with property.

  Ultimately, it was the dominant physicalist conception of property that muted the contradiction during the antebellum period. Its most significant application under the contracts clause was the distinction between "vested" and "non-vested" rights. Drawing on the law 'of landed estates, the constitutional distinction sought to establish a delimited category of vested rights that the state could not retroactively change. No other expectations were constitutionally protected against changed legal rules. 3;

  For our purposes, the most important aspect of the vested rights doctrine was that it enabled courts to avoid the reductio ad absurdum that every change in legal rules constituted an interference with property rights. Yet since the vested rights doctrine itself was founded by analogy to the vesting of landed property by way of title, it became increasingly difficult to decide whether other, more abstract and intangible property interests had also been vested. Indeed, the problem was already foreshadowed as early as 1827 in the great case of Ogden v. Saunders.34 In that case, by a four to three vote, the U. S. Supreme Court decided that a state insolvency law that affected future debts was not unconstitutional. Eight years earlier, the Court had held unconstitutional an insolvency law discharging debtors from obligations previously incurred.35

  Ogden v. Saunders was decided just as the nature of property was in the process of substantial transformation. In 1789, no one would have doubted that a vested right to property meant, above all, fee simple ownership of land. But during the intervening forty years, a dazzling variety of abstract and intangible property claims had developed out of an increasingly commercial society. Vested rights therefore could no longer be defined simply in terms of concrete and universally recognized interests in land. It was now necessary to decide whether corporate charters, stock ownership, contractual debts, and a host of other abstract and intangible commercial interests should also be counted as vested property. The question thus began to turn on attempting to define a more abstract, arguable, and elusive set of expectations that government was bound to respect. As it became necessary in these increasingly novel areas to define vested rights more abstractly, legislative claims to interfere with the very definition of property posed a correspondingly greater threat.

  In Ogden v. Saunders, the majority simply reaffirmed what had by now become a conventional
formal distinction between prospective and retrospective laws. But Chief Justice John Marshall, in dissent, argued for the first time that all statutory interferences with a contractual obligation were in fact retrospective laws. According to Chief Justice Marshall as well as to Justice Joseph Story, all state bankruptcy laws, whether they operated on past or future contracts, were unconstitutional. Marshall maintained that virtually all established expectations, including the expectation of the power to contract in the future, were vested property rights. The obligation of a contract was not "the mere creature of society, . . . deriv[ing] all its obligation from human legislation." Some argued that contractual obligation "is not the stipulation an individual makes which binds him, but some declaration of the Supreme power of a State to which he belongs, that he shall perform what he has undertaken to perform." "On the contrary," Marshall argued, contract establishes "a pre-existing intrinsic obligation which human law enforces." Contracts exist "anterior to, and independent of society . . . [and] like many other natural rights, . . , although they may be controlled, are not given by human legislation."36

  This was Marshall's only dissent in a constitutional case. That he could not bring a majority with him underlines how, from its earliest decisions, the Supreme Court had struggled to avoid the conclusion that every change in the laws that adversely affected the value of property constituted either an unconstitutional taking or, as its closest functional equivalent under the antebellum federal Constitution, an interference with the obligation of contract.3' By confining the prohibition on state retroactivity within the limits of vested rights and by attempting to define the vesting of those rights by analogy to the law of real property, the Court sought to create manageable and practical limits on the confiscatory power of the state.

  The gradual collapse of a physicalist definition of property after 187o revived all of the contradictions that had been barely suppressed in traditional doctrine. For as the definition of a property right became divorced from concrete physical objects with bright-line boundaries and came to turn more and more on abstract ideas of individual expectations of stable market values, the very conception of property became infinitely expandable. The result was that during the i88os and 189os a variety of new property interests for the first time received recognition by American courts. These property interests were endowed with what, by traditional standards, can only be called extravagantly expanded prerogatives. During this period, American courts came as close as they had ever had to saying that one had a property right to an unchanging world.

  But the very abstraction in the conception of property during the last two decades of the nineteenth century was ultimately the source of its own undoing.

  Hohfeld's Influence on Legal Thought

  If abstraction threatened to "propertize" the entire world of legal relations, it also encouraged the earliest efforts to undermine and subvert the extreme conceptualism of orthodox legal thought. Every move of intellectual integration eventually encountered an equally powerful movement aimed at resisting any imperial idea of property. Every attempt at construction of a systematic conception of property based on market value generated an effort at deconstruction that sought to demonstrate the tautological and all-consuming character of the concept. Each effort at aggregation of the multiple and varied areas of property doctrine under the concept of "right" produced a reaction aimed at disaggregating the very idea of property itself.38

  One of the most influential figures in the Progressive assault on the conceptualism of the old order was Yale Law Professor Wesley N. Hohfeld, whose analytical system of "jural relations" had an electrifying impact on some of his most brilliant contemporaries.

  In a famous 1913 article, 39 Hohfeld set forth his two tables of eight "fundamental legal conceptions":

  Jural Opposites

  Jural Correlatives

  The problem of recapturing the political and theoretical significance of Hohfeld's categories is not without its difficulties. For while it has become "a staple of academic legal culture," I-Iohfeld's system "survives, like a sack of dried beans, unesteemed by those who have lost the recipe for its use. . . . By today's law students (not to speak of their teachers), Hohfeld is often envisaged as a chap with a scholastic passion for terminological nicety-at worst a carping bore, at best an authentic, if pedantic exemplar of the academic virtue of precision."40

  To understand where Hohfeld was "coming from," we need first to place him squarely within pre-World War I Progressive legal culture. Hohfeld's speech before the Association of American Law Schools in 1914 captures his relationship to the Progressive movement.41 Hohfeld endorsed President Woodrow Wilson's call for a "fresh and critical analysis" that would lead to "nothing less than a radical reconstruction" of American society. "Society is looking itself over in our day from top to bottom," Hohfeld quoted Wilson as saying. Then he asked: "Have our university law schools been giving full recognition to what Mr. Wilson calls the conscious struggle for change and readjustment which characterizes our era?"42

  Within this political context, Hohfeld explained the need for a "Formal, or Analytical, jurisprudence" that would provide "an accurate and intimate understanding of the fundamental working conceptions of all legal reasoning." It was "not . . . a mere matter of juridical ornament or intellectual delight. On the contrary, it would be difficult to overestimate the economic and social value" of such an undertaking.43

  While analytical jurisprudence appealed to logical consistency, another branch, critical or teleological jurisprudence, sought "a more comprehensive, coordinated and synthetic consideration of the underlying psychological, ethical, political, social and economic causes and purposes of the various branches and specific rules of the law."' Hohfeld clearly regarded his own efforts at analytical jurisprudence as a preliminary step toward understanding how law related to what he called society's "underlying policies and purposes."45

  Here he stood in a line of analytical jurisprudence that had begun in England with Jeremy Bentham and John Austin and was made prominent in America by Oliver Wendell Holmes, Jr., as well as by that obscure classifier, Henry Terry. In late-nineteenth-century England, academic jurisprudence was dominated by Austin's disciples Thomas Holland and John Salmond.46

  What of the actual system Hohfeld created? It appears to be one of the pioneering attempts by a Progressive legal thinker to deconstruct the abstract character of orthodox conceptions of property.47 Hohfeld seems to have had two broad intellectual strategies in mind in creating his tables of jural "correlatives" and "opposites." Each of the correlatives was, in effect, no more than a tautology. Each of the opposites was, in effect, a contradiction. By showing, for example, that rights and duties were correlatives, Hohfeld reintroduced a theme highlighted by Holmes forty years earlier.

  The question of whether to have a jurisprudence of rights or of duties had been one of the classical issues in analytical jurisprudence, beginning with Bentham. It resurfaced as a central preoccupation of Anglo-American legal theory only with the posthumous 1863 publication of the complete edition of John Austin's Lectures on jurisprudence. 48 Austin, an intimate of Bentham and of James and John Stuart Mill, had originally given his lectures at the University of London in 1828 and had published some of them in 1832. Yet "no notice was taken" of the book, and "it was never reviewed in any learned journal."49 Indeed, Sarah Austin, who arranged for the publication, observed that her husband had lived "a life of unbroken disappointment and failure." Yet, because of her efforts, "within a few years of [Austin's] death, it was clear that his work had established the study of jurisprudence in England.""

  "Right, like Duty, is the creature of Law, or arises from the command of the Sovereign,"" Austin wrote. "[T]he term 'right' and the term 'relative duty' are correlating expressions. They signify the same notions, considered from different aspects, or taken in different series.""

  "Law is the Command of the Sovereign" is a traditional positivist formula that begins with Thomas Hobbes, appears in both Blac
kstone and Bentham (notwithstanding Bentham's vicious attack on Blackstone)," and is repeated by Austin. How much of Austin's positivism derived from Bentham's attack on the "anarchical" implications of the French Declaration of the Rights of Man,54 and how much from Bentham's radical schemes of legislative codification 55 and his corresponding contempt for the common law and its "fundamental law" tradition,56 is very difficult to measure.

  Austin's positivism seems to have resonated with Holmes's own post-Civil War fears of the anarchical implications of the abolitionists' use of natural rights theories. 57 In 1870, Holmes joined in the revival of Austin's jurisprudence. "Duties precede rights logically and chronologically," Holmes declared in the first systematic essay he ever published.58 Though less famous than many of his aphorisms, it was perhaps his most revolutionary statement.

  The rediscovery of Austin tells us much about the need of late-nineteenthcentury legal thinkers for a systematic and integrated system of jurisprudence. Even more significantly, it underlines the widespread desire to attack any system of law built on a foundation of natural rights. In England, with its relatively weak natural rights assumptions, such a turn could easily be assimilated into the dominant tradition of parliamentary supremacy. In America, however, Holmes was declaring his opposition to perhaps the most basic element of political and legal culture. To import Austin into America was, therefore, to challenge the most fundamental underlying premise of American law.

  What was Progressive about analytical jurisprudence when Hohfeld reintroduced it in America in 1913? We have seen that it contributed to the subversion of absolute property rights and substituted a vision of property as a social crea- tion.59 From the 1870s, we have seen as well, a de-physicalized conception of property had vastly expanded the outer limits of the right to property.60 During the 188os, the federal courts had begun to use the idea of interference with these more abstract and intangible property rights to generate the labor injunction.61 Some courts expanded the idea of business goodwill well beyond its traditionally narrow usage, so that every form of coercive labor union activity was defined as an interference with property. Others concluded that any organized labor activity that reduced the market value of a business could be treated like a common law nuisance.62 The breathtaking speed with which the federal courts instituted the labor injunction was partly a function of this propertizing conceptual move. To the extent that courts conceived of unions as inflicting damage on property no differently from a common law nuisance, they were more than ready to deploy one of the traditional weapons against a nuisance-the injunction. Indeed, in their passion to legitimate the non-discretionary character of the labor injunction, some courts in this period generalized the principle and saddled American law with the formalistic doctrine that whenever a nuisance is found, an injunction must be issued as a matter of course.63