Updated: Dec 24, 2020
Note: Let me just be real with y'all. This is not my most exciting nor most favorite post. But I think my takes here are interesting, and I really just look forward to looking back on these years from now and reminiscing on the times where I wrote like this [see "The Truth of Namibia" for similar reasons]
THE PROPERTIES OF PROPERTY:
An Analysis of the Definitions of Property From Republic of Argentina v. NML Capital, Ltd. (2014)
In the most widely used law dictionary in America, Black’s Law Dictionary, there is no definition for the term “property”, but there is for “property law”. This observation solidifies the idea that “property” is something that can be legislated, argued, and interpreted, but leaves us in the dark about its essential qualities. Understanding the definition of property and narrowing down its essential qualities has been the thought process of theorists and philosophers for centuries. From Locke to Hegel, many philosophers have endeavored to conceive their own viewpoints around “property”. Yet when put in conversation with each other, it is easy to map fundamental contradictions with each other’s views. However, outside of this discourse, the “property” still stands and has major consequences. As Americans, we really want for there to be an essential quality to property. It is what underlies the growth of the country. It is what feeds the national narrative that there is something that is to be owned, either collectively or individually. We revolve our culture around finding this something. Property underlies the world’s understanding of the body, livelihood, and most importantly, ownership. Even in modern-day, many conceptions of property remain dynamic, ever-changing, and live in the abstract waiting to be further explored. This became apparent in the 2014 legal battle between a hedge fund NML Capital, Ltd and the government of Argentina. The 2014 Supreme Court case Republic of Argentina v. NML Capital, Ltd.is noted for its ruling regarding sovereign immunity, yet the facts of the case speak to a relationship even more complex than just a legal doctrine that frees a state from committing legal wrongdoings. In this case, we are presented with the country of Argentina struggling to pay back sovereign bonds and the subsequent interest it accrued to what has been dubbed a “vulture fund”. Solely drawing from the case Republic of Argentina v. NML Capital, Ltd. (including its procedural history), I will argue how this case exposes three main properties of “property”. First, “property” is only as good as its market, second, that it must be backed by a power structure, and third, it must have derivatives. To do this, I will utilize a close analysis of the case as well as draw from scholarly reviews of its implications. I will overall, make the argument that a property is made up of these three qualities and that these properties underly the legitimacy of the legal principles used in the NML Capital case by the Supreme Court and the Court of Appeals.
To begin my argument, I will take the position that property is intrinsically tied to ownership. To have property is to own. However, this in itself creates the question of “what is ownership”. In exploring this question and its legal implications, one theory of ownership that has been embedded in common law doctrine is the “bundle of stick” theory of property. The theory relies on a differentiation between the rights to a thing versus the rights of. In this, the theory establishes property as a collection of rights rather than a general right to a physical object. This posits property to be grounded in law. This is because the property may only go as far as the piece of paper that someone else can agree to justifies it. In this case, it is the Constitution that solidifies the rights of Americans and the laws surrounding its engagement with foreign nations.
The first legal property of “property” is mobility and the existence of a market. Historically, property and ownership were tied to the land, or rather, claiming ownership of a piece of land to gain use from it. Although, as time progressed and money developed to facilitate trade, what still remained in the market for which buyers and sellers, borrowers and lenders may interact. In a world of markets, “property” is only as good as its market. It requires a relationship between two actors and a capacity to transact. In her article, “(Re-)writing markets: Law and Contested Payment Geographies”, geography professor Shaina Potts writes how “Economists make markets; but so do lawyers, judges, and legal scholars”. Especially in the decision written by Circuit Judge Barrington D. Parker in the United States Court of Appeals, Second Circuit, Judge Parker, took on the role of creating the market for which the transaction between NML Capital Ltd and Argentina an exist. In the first paragraph of the decision, Judge Parker reiterated that to enhance the “marketability” of the bond transaction, a series of standards were met by Argentina including having the sale be “governed by New York law” and “adjudicated in the courts of New York”. By establishing a market, one is essentially creating the boundaries for ownership to exist, and it was these boundaries for which the major adjudication of NML Capital was directed. The market is essential to “property” because inherent in the market is the validation of ownership. Without other parties agreeing to the validity of what one may deem as their “property” and thus agreeing to trade, there is no reinforcement of its existence. Even drawing from thinkers as early as John Locke, even though to him “property” was the result of mixing one’s labor with the land, the finished product was marked by its relationship with others outside of the self. Therefore the existence of markets is an important quality of ownership. Yet also tied to this concept is an acceptance of a degree of mobility to which the “property” has. Like the bonds sold by Argentina, the power behind the “property” was that it was not fixed. Whether in actuality or in theory, once it entered the market it became detached from its arbiter. A major question, in this case, was “at what point in the sequence of transfers from Argentina to the exchange bondholders does the money go from belonging to Argentina to belonging to the exchange holders?”With this case, one is given an example of how “property” can lose its meaning in its movement. The courts ruled that once the transfer of the bond was complete, the bond was “no longer the property of the Republic”. Yet overall for Potts, the answer is in the structure that has the capability to make a judgment on the transition. In answering this question, it was up to the courts to decide when this transfer occurs which leads to the next, and maybe the most consequential property of “property”: power.
“Property” must be backed by a power structure. Power operates through “property”. In the NML Capital case, the law operated as a structure that “not only erects legal borders in the sense of market limits but also constructs and enables mobility across those borders”. At the forefront of this observation is the law itself. To the neoliberal, “property” is the conduit that creates betters systems. At it’s best it can create structures of sustainability and progress; at its worst, it is a platform to debate ideas of ownership and define ambiguities. Moreover, it is through this that the government, notably the judicial system, steps in. In order to not enter a “chicken/egg” scenario, one should look at rights as something that a government creates overtime for its citizens through its interactions with its people, rather than discovers. This stance limits the ambiguities of viewing rights in the abstract—although a valid argument could be made about the importance of viewing rights in a more spiritual way. However, it is less my position that “property” is whatever the person in power says it is, but more so that it is made legitimate by a universally understood authority—which also implies that such authority can be articulated. In this way, the legislature was very supportive of this endeavor, particularly in the NML Capital case. NML Capital Ltd was primarily unhappy with Argentina’s plan to repay its defaulted bonds, and it was up to the Supreme Court to enfranchise the unhappy vulture fund. To the Supreme Court, primarily to Justice Antonin Scalia who wrote the opinion, the decision to rule in favor of NML Capital was supported by the language on “property” in the Foreign Sovereign Immunities Act (FSIA). Concurrently, even when one looks to Justice Ruth Bader Ginsburg in her dissenting opinion—although she provides concern that this ruling may “allow unconstrained access to Argentina’s assets”—her main concern revolves around the scenarios that appropriate for the extraction of assets of a foreign nation, not necessarily the extraction itself. With all of these voices of authority working in tandem, they are necessary for validating the existence of ownership.
The third and final property of “property” is that it must have derivatives, or rather, pathways to extract responsibility. The Argentinian bonds represented more than just a complicated “IOU”, they were testaments to the reputation of the Argentinian government, a value claim on the strength of their economy, and a claim to the labor of the Argentinian people. This is essential to “property” because in the court’s eyes, where there is property there must be someone or thing that must be held accountable for it. Here the property is a right to a portion of the income of society; an income that can be comprised of many relationships, duties, and labor of people. Although it was easy for the courts to view Argentina as one, seemingly faceless entity, what makes this property meaningful is it’s perceived worth based on those who are responsible for maintaining it.
When analyzing the case of NML Capital Ltd. v. Republic of Argentina, we are provided with three essential qualities that one may use to answer the question: what is property? Property is something that must exist in a market, it is relational. It is also something that must be backed by a power structure, or authority, to be validated as legitimate. It is also a phenomenon that has derivatives of responsibility. The courts heavily rely on these ideas to make a judgment on what they view “property” is, even though it is not directly defined in the opinions themselves. Even under this analysis, “property” can mean different things to different people. All in all, one may never be able to find the essential qualities of property in reality or in the abstract. But it is important to know that there exist serious consequences behind conceptions of ownership that are important to explore and must also be amenable to change as time progresses.
NML Capital, Ltd v. Republic of Argentina, 727 F.3d 230, 243 (2d. Cir 2013).
Potts, Shaina. “(Re-)Writing Markets: Law and Contested Payment Geographies - Shaina Potts,
2020.” SAGE Journals, SAGE, 2020, journals.sagepub.com/doi/abs/10.1177/0308518X18768286.
Republic of Argentina v. NML Capital, Ltd., 573 U.S. 134 (2014). Justia Law,
 Potts, Shaina. “(Re-)Writing Markets: Law and Contested Payment Geographies - Shaina Potts, 2020.” SAGE Journals, SAGE, 2020, journals.sagepub.com/doi/abs/10.1177/0308518X18768286.  Potts 49  NML Capital, Ltd v. Republic of Argentina, 727 F.3d 230, 243 (2d. Cir 2013)  Potts 52  Potts 53  Potts 52  Republic of Argentina v. NML Capital, Ltd., 573 U.S. 134 (2014). Justia Law, supreme.justia.com/cases/federal/us/573/134/#tab-opinion-1970941  Republic of Argentina v. NML Capital, Ltd 2  Justice Ginsburg’s dissent was mainly about how what was determined as property by Justice Scalia was not used for “commercial activity” as required by the Foreign Sovereign Immunities Act.