Abstract
Seemingly undaunted by global market crisis, intangible assets have continued their course toward maximization as an absolute form of property. In fact, companies worldwide have been criticized for not claiming hundreds of billions of dollars of intangible value including their marketplace goodwill.[1] Overvalued intangible property can be a negative effect on pension funds, retirement and stock prices in general.[2] Shareholders have very little recourse when public businesses write off bad acquisitions of intangibles worth billions. The problem has infected our government to the highest levels. For instance, in 2011, the U.S. treasury's valuation of the U.S. varied by $2 trillion from Standard and Poor's valuation.[3] Further, estimates of the daily U.S. hedging activity, including futures and option contracts, is around $4 trillion. In contrast, the underlying daily trade of physical merchandise is only $40 billion.[4] This constitutes a 100:1 ratio of the trade of intangibles in the form of options and futures to the underlying physical property value being traded. Furthermore, this ratio only considers hedge funds, a small category of intangibles available to purchasers in the modern marketplace. Though intangibles played a central role in 2008 crisis, and arguably every other crisis of the past century, American leaders have been unsuccessful in rethinking their approach.
This article puts forth one central argument: The hyper-broad concept of property needed to justify absolutist claims to intangible property is constitutionally unsound. This article demonstrates how a principle of honesty* enforced by the Court can keep property claims within the bounds of the constitution. Furthermore a principle of honesty can be used to protect property common law from the political fallout driven by the highly contentious valuations of intangibles that have escalated to a differences in valuation within the trillions of dollars. Finally, enforcing honesty in the courts will enable the lower and middle classes to continue to better themselves by participating in the marketplace.
To arrive at a principle of honesty, this article discusses the role of property in constitutional interpretation. It analyzes the recent Sebelius & Kirtsaeng decisions, arguing that a reevaluation of Constitutional interpretation is currently underway. Then this article lays out the current concept of property discourse (centered on a liberal/libertarian debate) and its role in spurring America on a course toward worldwide intangible property maximization. Finally, this article will propose that the Court reclaim a standard of honesty in the context of property rights analysis. The marketplace allowance of shameless dishonesty in the creation, marketing and valuation of intangible property as if it is physical/tangible has exacerbated and accelerated market failure to a global crescendo in 2008.
[1] Tim Boreham, IP assets a closed book for most companies, The Australian, April 5, 2013, http://www.theaustralian.com.au/ business/opinion/ip-assets-a-closed-book-for-most-companies/story-e6frg9lo-1226612839028 (noting a possible $850 billion valuation disagreement regarding going value of international businesses, $250 billion of which pertained to the value of unrecorded IP assets, like brand recognition.).
[2] James B. Stewart, Bad Directors and Why They Aren't Thrown Out, The New York Times, Mar. 29, 2013, http://www.nytimes.com/2013/03/30/business/why-bad-directors-arent-thrown-out.html?_r=0 (noting "the worst corporate acquisition" in history being HP's purchase of Autonomy, a British software maker, for $11.1 billion. HP later wrote off $8.8 billion of that price, claiming that it had been defrauded. Also noting that HP's failure was hurting New York City's pension fund.).
[3] Ian Katz & Vinny Del Giudice, S&P's Analysis was Flawed by $2 Trillion Error, Treasury Says, Bloomberg, Aug. 5, 2011, http://www.bloomberg.com/news/2011-08-06/s-p-s-analysis-was-flawed-by-2-trillion-error-treasury-says.html (when the going value of businesses and countries are given the color of property, future projections of value become fixed in the present as if it was real. Those projections can vary wildly.).
[4] David A. Stockman, The Great Deformation: The Corruption of Capitalism in America, 289 (1st ed. 2013) ("Currently, the daily volume of foreign exchange in hedging activity in global futures and option markets, for example, is an estimated $4 trillion, compared to daily merchandise trade of only $40 billion." This is a 100:1 ratio of "hedging volume to underlying activity rate." This article is about the $3.96 trillion dollar gap between futures and actual tangible property being traded globally.).
* By "Principle of Honesty," I mean a minimum formality of honesty to claim property in something, explained in the paper.