Title 18’s Property Conundrum

“Property,” in legal terms, carries significant weight. Once an object is heralded as “property,” that object becomes a step closer to being afforded the protections of the Constitution, offered equitable remedies at a court’s disposal, or even subjected to taxation by the state or federal government. Defining an object as “property” also puts it within the reach of the Title 18 property fraud statutes. Title 18’s fraud statutes have been often lauded by federal prosecutors for their “extraordinary utility.” In their current iteration, these statutes criminalize schemes to defraud “money,” “property,” and “the intangible right of honest services.” But what exactly constitutes “property”? As simple as the question may appear, it is not so easily answered by jurists, scholars, and practitioners. Of course, one can proffer objects like land or something more generic like “goods” as obvious answers. But the simplicity of the question evaporates when it is asked in relation to a criminal statute. Surprisingly, we are left with the maxim that property is what “the law declares to be property,” rendering a vagueness that should be antithetical to criminal law and statutes. Therein lies the conundrum. Title 18’s “property” conundrum, however, isn’t simply a catchy rhetorical quip; rather, it is a Gordian knot tied by decades of federal jurisprudence. It is this kind of “property” that lies at the heart of the Supreme Court’s Title 18 “property” decisions and is the subject of this Article. This Article provides the first indepth look at the progeny of Title 18 property decisions by the Supreme Court, outlines the inconsistencies, and offers a variety of implications for the checkered understanding of property across the past few decades.