Plagiarism, Norms, and the Limits of Theft Law: Some ... - English

J-GREEN2 12/18/02 10:48 AM
210 HASTINGS LAW JOURNAL [Vol. 54
pretenses and embezzlement) began to be criminalized. Physical
possession was no longer relevant. The criminal law shifted from a
focus on forceful or stealthy conduct to the intentional acquisition of
property by virtually any dishonest means.
Meanwhile, the definition of what constitutes “property” subject
to theft was experiencing a parallel expansion. Under early English
criminal law, the only kinds of property that could be stolen were
tangible and movable—i.e., goods and chattel, such as cash, jewelry,
furniture, vehicles, and other merchandise. 180 Real property and
intangible property (e.g., a ride on a train, a room at a hotel, a deed to
land, stocks and securities) were not subject to larceny or other forms
of theft. 181 According to one commentator:
The common law conception of property at the [time of
Blackstone] saw property as an absolute dominion over things.
Property was “that sole and despotic dominion which one man
claims and exercises over the external things of the world, in total
exclusion of the right of any other individual in the universe.” This
was a “physicalist” concept of property that required some external
thing to serve as the object of property rights . . . . 182
By the nineteenth century, however, the definition of what
constitutes “property” for purposes of theft law had begun to expand.
Old statutes were interpreted more broadly and new, specialized
statutes were enacted to deal with the misappropriation of intangible
property. For the first time, legal property rights were found in
business goodwill, and eventually in trademarks, trade secrets, and a
host of other kinds of intangible things. 183
Why did such changes occur? According to Jerome Hall’s study
of the history of theft law:
Increase in the complexity of social and economic organization was
accompanied by the transformation of free goods (those existing in
nature independently of any human effort, and not appropriated by
180. JEROME HALL, THEFT, LAW AND SOCIETY 6, 84–85 (2d ed. 1952).
181. PERKINS & BOYCE, supra note 177, at 292-96.
182. Deborah Fisch Nigri, Theft of Information and the Concept of Property in the
Information Age, in PROPERTY PROBLEMS: FROM GENES TO PENSION FUNDS 48, 50
(J.W. Harris ed., 1997) (quoting Blackstone).
183. Id. at 51. Perhaps the most influential thinker in expanding the scope of the
definition of “property,” as in many other areas of criminal law, was James Fitzjames
Stephen, who, as early as 1865, proposed that theft law should encompass the
misappropriation of “any property whatever, real or personal, in possession, or in action,
so as to deprive any other person of the advantage of any beneficial interest at law, or in
equity, which he may have therein.” JAMES FITZJAMES STEPHEN, GENERAL VIEW OF
THE CRIMINAL LAW 129 (1865).