Page "Legal realism" Paragraph 16

Hale ’ s underlying premise was that property is a source of economic wealth only if some people are prevented from using it in ways that are permitted to other people.

If courts, for instance, should prevent a man from breathing any air which had been breathed by another ( within, say a reasonable statute of limitations ), those individuals who breathed most vigorously and were quickest and wisest in selecting desirable locations in which to breathe ( or made the most advantageous contracts with such individuals ) would, by virtue of their property right in certain volumes of air, come to exercise and enjoy a peculiar economic advantage, which might, through various modes of economic exchange, be turned into other forms of economic advantage, e. g., the ownership of newspapers or fine clothing.

Thus, courts would be creating economic wealth and property if they established legal rules that defined the exploitation of air.

Furthermore, since any prospective change in the legal rules that reduces the future value of some recognized property right necessarily reduces the present value of that property right as well, Hale posited that the legal idea of property reflected an abstract circularity.