Conceptual Severance, or "Rights Chopping."
The problem that Grey and Vandevelde may really see is not that the disaggregation of property is
killing property but that it is giving property new life. Disaggregated property, like the dismembered god Osiris, threatens to fill the world with its power.
As other left-leaning critics have lamented, the trend under the Rehnquist Court has not been toward the withering or even the diminution of the traditional view of property—the exclusive rights to possess, enjoy, and alienate objects—but toward its strengthening . Moreover, this trend has been abetted, not hindered, by the disaggregation of property.
Margaret Radin has identified a tendency of certain Justices to find that any governmental interference with any one of the many disaggregated rights associated with property may be a "taking." This approach, which Radin critiques under the awkward name "conceptual severance,"
consists of delineating a property interest consisting of just what the government action has removed from the owner, and then asserting that that particular whole thing has been permanently taken. Thus, this strategy hypothetically or conceptually "severs" from the whole bundle of rights just those strands that are interfered with by the regulation, and then hypothetically or conceptually construes those strands in the aggregate as a separate whole thing.
Believing that short and common Anglo-Saxon words are better than complicated heptasyllabic, Latinate neologisms, I accept a suggestion made by Frank Michelman and call this process "rights chopping." Radin condemns this approach as incorporating a conservative political and jurisprudential philosophy. It puts governmental regulation she deems progressive at risk of being invalidated as unconstitutional under the Takings Clause—precisely the harm which Grey wished to avoid. If one recognizes for constitutional-law purposes that property consists of a bun-
dle of severable sticks, it is "an easy slippery slope" to the conclusion that "every regulation of any portion of an owner's 'bundle of sticks' is a taking of the whole of that particular portion considered separately."
Implicitly, she criticizes the Court precisely for adopting a bundle-of-sticks analysis in lieu of a unitary notion of property. In other words, Grey argues that Hohfeld's revelation that property rights are severable and indistinguishable from other legal rights meant that property does not exist. If property is everything, then property is nothing. Radin shows how a libertarian can come to the opposite conclusion. Consequently, as I shall discuss in chapter 3, she rejects the Hohfeldian intersubjective account of property in favor of a radically objective account. I shall return to, and partially defend, rights chopping as inevitable from both an empirical and logical standpoint in chapter 4.