Intangible Property under the Federal Mail Fraud Statute and the Takings Clause: A Case Study

By Hostetler, Michael J. | Duke Law Journal, November 2000 | Go to article overview

Intangible Property under the Federal Mail Fraud Statute and the Takings Clause: A Case Study


Hostetler, Michael J., Duke Law Journal


At first blush, the reader might wonder what the federal mail fraud statute(1) (or, more generally, federal criminal law) and the Takings Clause(2) have in common. Surprisingly, perhaps, the most notable commonality is that many court decisions have hinged on how the court viewed property. Of course, in one regime, a taking of property can land one in jail, whereas in the other, a taking of property can result in compensation from the government. I believe such different results, hinging on the same concept, offer sufficient grist to justify this investigation

At the broadest level, this Note asks whether the concept of property has remained unified or has become fractured upon exposure to the judicial system.(3) When deciding a case, courts have the opportunity to apply the selective pressures of public policy to interpret and shape legal principles. The more malleable the principle, the more likely that different camps will form, which in turn creates the potential for the divergent evolution of the original principle.(4) How does this scenario play out with a principle as nebulous as property.(5) Essentially, there are two theoretical positions, which I will call the "pragmatist's universe" and the "idealist's universe."

In the pragmatist's universe, the perceived differences in policy behind each statute lead to two different visions of property. Thus, viewed through the lens of crime prevention, a broad definition of property is needed to uphold the convictions of those who creatively invent new types of wrongs; on the other hand, viewed through the lens of fiscal conservatism, a narrow definition of property is needed to hamper a takings claimant's case and give the government more flexibility to initiate projects inexpensively. Exposed to these different selective pressures, one would expect the meaning of property in criminal law is to evolve into a different form than in takings law.

In the idealist's universe, property generally has the same form in both criminal law and takings law because overarching principles, such as basic fairness and preservation of a legal system's legitimacy, ensure that concepts of property do not differentially evolve. The idealist might argue that if the government is willing to say that something is property in order to send a person to prison, then it should be willing to pay compensation if the government itself takes the same property. This quid pro quo constrains the opposing policy forces in the pragmatist's universe from creating multiple forms of property.

But which viewpoint--the pragmatist's or the idealist's--emerges triumphant? To study this question, I have selected as my laboratory judicial interpretations of intangible property. Why intangible property? First, the question of what is property, especially for tangible objects and the rights that inhere within these objects, is relatively noncontroversial, and, as such, would make for a less interesting discussion. Second, differentiating intangible property from other intangible interests tests the limits of how we view property. Finally, in our information age, the intangible often has a value commensurate with the tangible, yet few articles have considered the judicial boundary between intangible interests and intangible property.(6)

After analyzing a broad range of intangible property interests, I find that, although the real world is more complex than either model, certain patterns do emerge. Thus, some types of intangible property are treated similarly under both the mail fraud statute and the Takings Clause, while a few are treated differently. Much more interesting, however (because of possible precedential value), are those intangible property interests that have only been analyzed in the light of one of these two areas of case law.

Having described the world as it is, I then turn to describing the world as it should be. I adopt the philosophy presented by the idealist above and argue for a consistent vision of property. …

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