Property I Outline

Property, Cornwell, fall 2010

1. Property
o Property entails the power to exclude someone from a resource
§ one of the most important property right is the right to exclude others
· it is not absolute…there is always a conflicting value
· in general, the more an owner has opened her property to the public, the more likely it is that the courts will find public rights of access to the property
· Power to exclude give property value
§ Not about relationship of people and things
§ is about People to People…power relationships
No property rights in people; exploitation of people is impermissible

Where do property rights come from?
Most will say they are GOD given…view has fallen
They are gov’t given

§1.1 Trespass (3-32).
Common law rule (trespass)
Trespass is an invasion of interests
· protects against interference w/ property
· Protects a landowner’s rights to exclude people from property

o Its an unprivileged, intentional intrusion on the property possessed by another.
§ Elements
· Intent-voluntary act
· Intrusion-occurs when one enters onto the property of another

oTrespass can be privileged
§ Consent
· Entry done with consent of owner…licensee
§ Necessity
· Entry done to prevent a more serious harm to persons or property
3. Public policy
· Entry encouraged to stop a crime…or get people out of a burning building
o Types
1. Criminal Trespass
· Initiated by federal, state, or local gov’t officials
· Goals: deter and punish

oInvestigative Journalism
1. Trespass if done under fraud AND harm results

oTrespass to Computer Systems
1. Trespass to chattels doctrine…must show:
· Intentional “using or intermeddling” OR
· Dispossession

oRight to roam
1. One can hike or roam across the land of another
· They do not disturb the owner
· As long as there is no sign against trespassing posted

o State v Shack-migrant farm workers
1. migrant workers were paid a visit by a doctor and a lawyer, the owner of the farm didn’t want them there and sued for trespass….court found for the doctor and lawyer

o Class Notes:
· Property rights are not absolute, there is always a competing concern,
§ Such as the welfare of others…must take priority
· Property rights serve human values. They are recognized to that end and are limited by it
· Here, if there was a tenancy (rented property, leasehold) as a landlord he could exclude people. But Housing as part of employment is not a tenancy, thus the legal right to exclude people from the property is not available
· Crt held that even if the farmers don’t have a legal tenancy…they are still entitled to have visitors
· Court looks at conflicting values here…the right to exclude (the essence of ownership) versus human rights (in this case, the right to visitors in their living space)
§ the opinion talks of how the absoluteness of someone’s property might be curtailed for the public interest
§ a person must realize that his title is relative in regards to the best interests of society and the dire needs of an individual….it is the battle between independence and the social interest

Desnick V. American Broadcasting Company
ABC does investigative expose on a quack doctor by posing as patients. They also interview the doctor with his consent after promising it would be a nice interview…doctor sues for trespass, loses.

Class Notes
· Posner
§ trespass comparable to battery…invasion of property vs person
· Battery protects person from harm while trespass protects the inviolability of another person’s land
§ Posner talks about fraudulent examples
· Food critic hidden as regular customer is consented to, though fraudulent
§ Here there are competing interests: right to exclude vs. right to report…crt implies that the freedom of press > right to exclude of Dr.’s office.
§ In the cases mentioned, there was a transgression of boundaries…rape, home invasion, etc. Here there were violations of boundaries, but no interference w/ possession of land
· Ex. You can tape public conversation/interactions at businesses…but cant snoop around back rooms
· Did it exceed the scope of initial investigation?
Notes and problems
· 1 (pg 16)
§ Depends on what lease says. There is a right of the tenant to have family or intimate visitors stay w/ him
§ Is girl friend living there permanently?…need to know in order to answer question.
§ Can’t add facts, have to deal w/ the problem u are given.
§ Answer
· Plausibility of 2 conflicting arguments
· Essence of the lease is that you would not have someone stay permanently…less you would be adding a new tenant.
· The right to have visitors is implied in modern society
§ Cornwell
· Landlord on property and should be able to object
· If renting a room in landlord’s House…definitely a right to object
· If absentee landlord…less likely to have a right to object

h. Principle (rule)
i. The more general it is…the more applicable it is, seemingly useless
i. Algorithm
i. Rule x facts=Result
j. Casuistry vs Law
i. A way of studying ethics by a case study method, whereby you are certain to have conflicting principles
1. Ex. return what you have borrowed BUT preserve innocent life
a. Hypo: u borrow neighbor’s chain saw, he decides he wants it back immediately when he is drunk and just finished an argument w/ his wife
b. Eg. Tell the truth BUT do not lie
ii. Similar to law…rules, black letter law all around.
1. U have dilemmas b/c principles of law are at conflict, not necessarily that one or both parties are lying.

3. §1.1.2 Right of reasonable Access to property open to the public
a. Uston v. Resorts int’l
i. man charged with trespassing in a casino because he was a card counter and had been asked to leave before…court said he should be allowed t