Property as Control: The Case of Information

If heath policy makers\u27 wishes come true, by the end of the current decade the paper charts in which most of our medical information is currently recorded will be replaced by networked electronic health records ( EHRs ).[...] Like all computerized records, networked EHRs are difficult to secure, and the information in EHRs is both particularly sensitive and particularly valuable for commercial purposes. Sadly, the existing federal statute meant to address this problem, the Health Insurance Portability and Accountability Act of 1996 ( HIPAA ), is probably inadequate to the task.[...] Health law, privacy, and intellectual property scholars have all suggested that the river of information created by integrated, networked EHRs and other data systems must somehow be controlled, and many of these scholars have considered whether property might provide such control.[...] The Article\u27s principal thesis is that arguments over the control of rights in personal information test contemporary understandings of what property is and reveal fault lines in modern property theory. If property rights exist at all in dephysicalized, digitized information, those rights are unlikely to be consolidated in a single person, to operate in rem, to grant owners significant powers to exclude, or to be standardized--qualities that, in the eyes of some, are required of true property interests. Claims of ownership to personal information also raise questions about whether property is the right rhetorical frame in which to consider the problem of information that is deeply connected to people\u27s selves. Finally, propertization claims assume a closer connection between property and control than is either realistic or desirable in an interconnected world. It is likely that, at the end of the day, individuals will as a matter of policy be granted some rights to control some of their personal information, but those rights will not follow from anything in property\u27s nature. Part I introduces the control issues raised by EHRs specifically and by the collection of personal information more generally, and then examines the arguments for using property as a device to control information.[...] Part II explores the connection between the loss of control over information and concerns about the self. It questions whether property is the best frame in which to talk about medical and other personal information, i.e., whether, rhetorically, we should treat information about the self as a commodity. It questions also whether we can avoid a property frame.[...] Part III returns to the specific policy problems presented by EHRs and by personal information. A workable EHR policy will take account of a wide variety of values, issues, and interests. Incentives must be created to facilitate EHR adoption, standards must be set to insure interoperability, malpractice rules must be adjusted to accommodate new practices (not to mention new mistakes), and procedures must be developed to enable use of EHR data for public health purposes.[...] A workable policy for EHRs and for personal information will no doubt provide individuals some control rights. These rights might look, in the eyes of some, like property rights. But if control rights are granted, it will not be because property demands them, but because other considerations of health and public policy do. All this raises the question of when and whether property might ever provide the control that advocates of information-as-property desire. In a world of de-physicalization and digitization, ownership may not provide the kind of power that old-fashioned property rhetoric invokes. This state of affairs is not necessarily one to be lamented. The question of how power and control over information will be apportioned involves hard choices. But because property theory is itself deeply divided over the extent to which property provides control, property itself cannot determine how these choices should be made. Property may never have actually given owners as much control as the new adherents of property in information envision. Even if it did, in a world of increasing interconnection, it may be good to be reminded that power and control are themselves always shared

The No Property Problem: Understanding Poverty by Understanding Wealth

Could it be that understanding homelessness and poverty is less a function of understanding the homeless and the poor than of understanding how the wealthy come to ignore and tolerate them? This is one of the more intriguing suggestions of anthropologist Kim Hopper\u27s Reckoning with Homelessness, and it echoes claims made by lawyers who, like Hopper, have spent much of their careers advocating on behalf of the homeless. While Hopper\u27s new book is first and foremost a work of anthropology, its structure strongly parallels recent work by legal scholars who have sought to assess the effects of litigation and lobbying efforts dedicated to homelessness. Looking back on his own twenty-five years of work on behalf of the homeless, Hopper laments that his and his colleagues\u27 detailed ethnographies of the lives of homeless people provided vivid documentation and lively analyses, but at the cost of ensuring that the product could be safely ignored (p. 209). The legal advocates\u27 assessment of their efforts is even more downbeat; they fear that their own litigation strategies - even when successful - may have aggravated rather than resolved the problems faced by their clients

Property and No Property

This essay addresses the vexing question of whether property enhances freedom. Contemporary property debates tend to focus on what might be called the affirmative side of property rights–what they give (or ought to give) to owners vis a vis others and vis a vis the government. But if, as the Realists long ago suggested, property is social, involving relations between people, and if property involves politics, the exercise of power by some over others, then it makes sense to think about the negative side of property rights, the effects of not having any property to speak of. Persons owning very few things inhabit a realm of severe social and legal vulnerability, susceptible to the power of many (and, of course, the government) without having (m)any reciprocal power(s) over others. I call this situation “no property.” This paper seeks to describe the legal category “no property.” Rather than enumerate its iterative disabilities, I enlist a recent novel, Valerie Martin’s Property, in the hopes of describing “no property” imaginatively. The novel illustrates the ways in which legal states that deprive persons of the ability to own or to control property–slavery and coverture–render persons susceptible to the power of others. Notwithstanding enactment of Married Women’s Property Acts and the end of slavery, many today–such as the homeless and the extremely poor–remain in a position of comparable legal and social vulnerability. For persons so situated, the freedom-enhancing aspects of property are more or less beside the point. What they experience as a legal matter is, to recur to some older terms, duties, no-rights, liabilities and disabilities. These iterative negatives together constitute a status, a status in which it becomes possible for them to be seen as, essentially, objects, not subjects. Effective regulatory schemes take existing schemes of property rights into account. “No property” is such a scheme. Because it consists so largely of negatives, of rights and powers that people do not have, it is difficult to recognize it as such. But it is as serious a constraint on regulatory possibility as, say, the ownership rights of those affected by limitations on the cutting of old growth forests or by required reductions in factory emissions. If we want to “do something” about the poor and the homeless–whether it be banishing them to special “zones” or targeting services to them–we will need to understand the legal situation in which we find them. For this reason, I argue, we must continue to seek to understand and define the legal category “no property.

Irresolute Testators, Clear and Convicing Wills Law

Controversial recent wills law reforms, embodied in new provisions of both the Uniform Probate Code and the Restatement of Property, excuse so-called harmless errors in will execution and permit judicial correction of erroneous terms in a will or trust. Both reforms pose evidentiary dangers, as proof of the error must come from outside the attested instrument and will be offered after the testator’s death. To respond to this concern, both the error and the testator’s true intent must be established by “clear and convincing” evidence. This Article is the first to examine how courts have applied the clear and convincing evidence standard to these important reforms of wills law. In practice, the clear and convincing evidence standard provides less evidentiary protection than its proponents expected. More importantly, judicial struggles with the clear and convincing evidence standard expose a deep fissure in the very concept of testamentary freedom. The reforms assume—as does the Wills Act itself—a fully formed, fixed set of choices that the testator has sought to express in his will, choices made by a conventionally rational choosing testamentary self for whom wills rules further self-determined ends. This conventionally rational testator makes only innocent, inconsequential errors. Many of the testators in the actual cases, however, display only bounded rationality. Their errors are not simple accidental snafus. While the reforms contemplate correction only of the technical, innocuous expression or execution errors made by self-reliant, choosing testamentary selves, at least some courts care also about the more complicated errors made by vulnerable, irresolute testamentary selves. These courts push against the reforms’ boundaries. The clear and convincing evidence standard has not and will not function as a serious limit on mistake correction because it fails to reckon with both visions of testamentary freedom