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This Essay expounds on the outsized role of private law in governing ownership of new technologies and data. As scholars lament gaps between law and technology, and the need for government regulation in these various spaces, private law has quietly intervened to essentially regulate key features related to ownership, control, and access. Whether such intervention is welcome, efficient, or effective probably depends on the context and is subject to debate. Nevertheless, this Essay provides an excellent illustration of the organic development of private ordering to occupy spaces left open by public law, and posits that the significance of this phenomenon, whether for better or worse, cannot be lost in the weeds.

More specifically, the way in which contract law and intellectual property law have coalesced to define and control data ownership is striking. As a threshold matter, it is property ownership that allocates control of and access to data resources and ultimately enables monetization and value in the marketplace. This control extends to both the public and private spheres, and the attendant implications are far reaching.

Building on my recent work, this Essay will provide three exemplar contexts in which ‘private law creep’ has occurred, especially with respect to trade secrecy—the area of intellectual property law most likely to govern data transactions. By scrutinizing implantable medical devices, facial recognition technology, and algorithmic models in the criminal justice system, one observation remains salient and pervasive: contracts rule. Despite the strong public interests that are implicated in these domains, none of them are regulated on a federal level. Instead, rights of access and ownership are governed by private law.

Data is not monolithic. Nonetheless, the word is frequently used indiscriminately—in reference to a number of distinct concepts. It may refer to information writ large, or specifically to personally identifiable information, discrete digital files, trade secrets, and even to sets of AI-generated content. Yet each of these types of “data” requires different governance regimes in commerce, in life, and in law. Despite this diversity, the singular concept of data trusts is promulgated as a solution to our collective data governance problems. Data trusts—meant to cover all of these types of data—are said to promote personal privacy, increase corporate transparency, facilitate the sharing of data, and even pave the way for the next generation of artificial intelligence. These anticipated benefits, however, require the body and flexibility of equitable trust law and its inherent fiduciary relationships for their fruition. Unfortunately, American trust law does not allow for the existence of such general data trusts. If anything, the judicial, academic, and legislative confusion regarding data rights—or data’s status as property—demonstrates that discussions of data trusts may be ignoring a key element. Without first determining whether (or what kind of) data can be recognized as a trust res (i.e., as trust property) under existing law, it may be premature to accept data trusts as the private law solution to data governance. If, on the other hand, the implementation of data trusts requires legislative intervention, its purported benefits must be analyzed in contrast to the myriad other new and evolving data governance frameworks that would similarly require legislation. By analyzing existing trust law and the difficulties of defining data rights, this essay highlights the urgent need to pursue doctrinally, legislatively, and technologically viable data governance strategies.

After decades in which agricultural land could only be owned by farmers, Taiwan’s
2000 amendments to the Agricultural Development Act opened up the farmland
market to non-farmers. This decision, along with Taiwan’s accession to the World
Trade Organization and the increasing globalization of trade, has had effects on an
agricultural landscape that has traditionally consisted largely of smallholder
farmers. This Note explores the 2000 amendments within both the historical context
of first- and second-stage land reform in Taiwan and the current context of third-
stage land reform and trade liberalization. The effects are far-reaching—the most
expensive farmland in the world, escalating non-agricultural use, fields left idle.
This Note raises questions about the role of agriculture in developed societies and
discusses the nuanced nature of farmland market deregulation.

The information that we reveal from interactions online and with electronic devices has massive value—for both private profit and public benefit, such as improving health, safety, and even commute times. Who owns the lucrative big data that we generate through the everyday necessity of interacting with technology? Calls for legal regulation regarding how companies use our data have spurred laws and proposals framed by the predominant lens of individual privacy and the right to control and delete data about oneself. By focusing on individual control over droplets of personal data, the major consumer privacy regimes overlook the important question of rights in the big data ocean.

This Article is the first to frame a right of the public to benefit from our consumer big data. Drawing on insights from property theory, regulatory advances, and open innovation, the Article introduces a model that permits controlled access and the use of big data for public interest purposes while protecting against privacy harms, among others. I propose defining a right of access to pooled personal data for public purposes, with sensitive information safeguarded by a controlled-access procedure akin to that used by institutional review boards in medical research today. To encourage companies to voluntarily share data for public interest purposes, the Article also proposes regulatory sandboxes and safe harbors akin to those successfully deployed in other domains, such as antitrust, financial technology, and intellectual property law.

In the area of regulatory takings, federal courts often confront issues of state law. This is because property is largely a regime of positive state law, while the Takings Clause is a federal constitutional guarantee. This Note deals with the standard of review to be applied by federal courts as to questions of state property law in the takings context. This Note explores two regulatory takings decisions by the Supreme Court—Lucas v. South Carolina Coastal Council and Stop the Beach Renourishment v. Florida Department of Environmental Protection—in which the Court conducted independent assessments of state property law. This Note argues that a more deferential standard of review, known as the fair support rule, is more appropriate for state-law issues arising in takings disputes. To arrive at this conclusion, this Note draws on principles of federalism and positivism expressed in Erie Railroad Co. v. Tompkins and by scholars in the legal process school.

New York City Housing Authority (NYCHA) deprives hundreds of residents of their housing every year without affording them due process. Based on the allegedly undesirable behavior of one household member, NYCHA can begin a termination of tenancy action against an entire family. Using the threat of termination as leverage, NYCHA coerces the tenant of record into permanently excluding the “undesirable” occupant, barring them from living with or visiting their family. The excluded family member is given no notice of the termination action and no opportunity to contest their permanent exclusion.

This Note contends that authorized occupants in NYCHA housing have due process rights which mandate notice and the opportunity to be heard before they lose their home. NYCHA does not currently recognize such rights. But, as this Note will show, authorized occupants have a property interest in public housing. NYCHA’s practice of permanent exclusion deprives them of that interest. This Note suggests alternatives for NYCHA to consider instead of relying on permanent exclusion as a means of crime reduction. Ultimately, the goal of this Note is to push NYCHA to live up to its mission: to provide decent and affordable housing to low-income New Yorkers.

In this Article, Professor Patricia Bellia explores how the law should treat legal claims by owners of Internet-connected computer systems to enjoin unwanted uses of their systems. Over the last few years, this question has become increasingly urgent and controversial, as system owners have sought protection from unsolicited commercial e-mail and from”robots” that extract data from Web servers for competitive purposes. In the late 1990s and early 2000s, courts utilizing a wide range of legal doctrines upheld claims by network resource owners to prevent unwanted access to their computer networks. The vast weight of legal scholarship has voiced strong opposition to these “cyberproperty” claims, arguing that such property-rule protection would threaten productive uses of the Internet, inhibit innovation, or even create an anticommons.

This Article challenges the typical criticisms of property-rule protection, demonstrating that they are based on simplifications or false assumptions about the behavior of system owners and the nature of the Internet. Most importantly, scholars have overlooked the use of technical measures to block access, in conjunction with or in place of legal measures. The Article then lays out a wide range of potential legal rules for network resources, from absolute property-rule protection to a “technology displacing” approach that actually limits the technical barriers a system owner can impose, with a number of “loperty” rules–involving property-rule protection triggered by a system owner taking a particular measure–in between. After examining the existing case law, the Article agrees that courts’ recent trend toward a closed-access property-rule regime is inappropriate. Professor Bellia, however, demonstrates that attempts to preserve open access by rejecting any sort of property-rule protection are equally misguided. She points out that too-weak legal protection will prompt greater reliance on technical measures that mimic a property-rule approach, similarly limiting access. Yet, because technology lacks the flexibility and common sense exceptions inherent to legal application, the results for the community-at-large could be worse.

The Article concludes that entitling a system owner to property-rule protection so long as she provides the user with actual notice of permissible uses of the system or adopts a system configuration making it plain to the user that access is restricted would better balance the interests of consumers and system owners than rejecting property-rule protection outright. Although such an approach might be inappropriate in a limited class of cases–as, for example, when a system owner’s predominant motive for limiting access is anticompetitive in nature–Professor Bellia demonstrates that courts and legislatures can apply technology-displacing measures in such cases to achieve an appropriate legal balance.

Reconsidering the Evolution of Private Property

One of the most enduring questions about private property is why it develops. Strongly influenced by a short article by economist Harold Demsetz, property scholars recently have analyzed the evolution of private property in economic and social terms, and described it as a response to factors such as changes in relative prices, measurement costs, and the size and heterogeneity of user groups. In this Article, Professor Katrina Wyman argues that Demsetzian-inspired accounts of the evolution of private property tend to neglect the role of the state in property rights formation. Building on the extensive scholarship about the evolution of property rights, she emphasizes the need to take seriously the implications of the political process by which private property often is formed.

To underscore her theoretical argument about the evolution of private property, Wyman also offers a case study of contemporary property rights formation. For over six decades, an international movement has been underway to enclose the oceans, including marine fisheries. Drawing on original research, Wyman examines why individual transferable quotas and similar instruments have been slow to develop in U.S. coastal fisheries in federal waters since national jurisdiction over fisheries was extended to 200 miles from the shore in 1976.

In closing, Wyman underscores the richness of Demsetz’s pioneering account of private property and the scholarship that it has spawned. But she also suggests that there remains a large gap between how private property actually evolves and many of the prevailing theoretical understandings of the development of property rights. She argues in turn that filling this gap requires the development of a more robust positive theory of the evolution of private property that takes into account the political process through which private property often is formed, and more systematic empirical research into the development of property rights.

The most intractable questions in takings law involve determinations as to when compensation must be paid for government regulation of private property. Scholars and judges have looked to the history of takings law in the search for guiding principles that can inform, if not resolve, such questions. The 1851 opinion of Chief Justice Lemuel Shaw of the Massachusetts Supreme Judicial Court in Commonwealth v. Alger has figured prominently in these investigations.

This Note argues that such efforts have overlooked other relevant cases Shaw decided, and therefore do not fully appreciate the extent to which Shaw’s jurisprudence was informed by a flexible and instrumental view of how certain principles in takings law should be applied to decide cases. Accordingly, this new perspective on Shaw raises doubts about the extent to which a resort to history can provide effective guidance in resolving the current takings muddle.

This Note examines state legislative responses to Kelo v. City of New London, the recent U.S. Supreme Court case that held that the exercise of eminent domain for private development does not violate the public use requirement of the Takings Clause. In response to Kelo, many states are legislatively prohibiting the use of eminent domain for development generally, but continuing to allow its use for development in blighted areas. This Note discusses the problems with such legislation and concludes that states should avoid crafting rules that allow the use of eminent domain for development solely in blighted areas. Such rules would improperly burden poor and minority communities and imbalance the political process by which rules on eminent domain for development are established.