The Property/ License Interface

The talk is based on a chapter from my forthcoming book on People (Offices) and Things. In this chapter, I insist on the traditional distinction between property and license and explain how these two ideas relate. I argue that the distinction between property and license captures two basic and quite distinct ways that someone in an office—whether public or private—may involve others in discharging her mandate. The first involves breaking down her mandate into parts and delegating authority over these to others, in the form of a subordinate office or property right. The second involves the issuance of licenses to others, allowing them to play a role in the agenda or regulatory framework that the officeholder has set down and over which she retains authority.
This chapter has three aims. The first is to show how licenses across the legal landscape, whether privately or publicly issued—whether dinner invitations or fishing licenses, landing slots or emission allowances—are fundamentally regulatory interests, embedded within another’s agenda or regulatory framework. The second is to explain how and why licenses and property, while distinct, are also fundamentally connected ideas. My third is to work out how licenses figure in legal reasoning along three dimensions: transferability to others, conflicts across licensees, and abuse of power by the licensor.