Property I Outline

Property Outline/ Fall 2008/ Prof. Cornwell  
Property Outline Part I (1):
——-Basic Concept and Acquisition
 
Property: Basic Concept and Policy: Property in People
I.                Fundamental Principle: No property right in people; exploitation of people is impermissible.
II.                Slavery
III.                Children
i.              Case: In the matter of baby M  (N.J.)
ii.             Policy against enforceability of surrogacy K: (from pp 1158)
·         The profit motive predominates, permeates, and ultimately governs the transaction
·         Surrogacy K consists of the purchase of a woman’s procreative capacity, at the risk of her life, is caused by and originated from the offer of money.
·         In a civilized society, some things that money cannot buy.
·         There are, in short, values that society deems more important than granting wealth whatever it can buy, be it labor, love or life.
·         The best interest of children: separation of children from its mother regardless of will and maternal fitness, adoption regardless of suitability,
iii.            Policy for enforceability of surrogacy K (pp 1161)
To foreclose a personal and economic choice on the part of the surrogate mother, and to deny intending parents what may be their only means of procreating a child of their own genetic stock.
     
IV.                Embryo
i.              Case: Davis v. Davis (pp1163)
Holding of Tennessee Supreme Court: 3rd category
Embryos are not either persons or property, but occupy an interim category that entitles them to special respect b/c of the potential for human life.
Embryos are not a true property interest, but they do have an interest in nature of ownership.
ii.             Competing right: right to procreate v. right not be forced to become parents (–1163-65):
Analysis: see pp 1164
Rational for the right not to be forced to become parents: birth of one’s biological child would have psychological even not legal consequences; his or her child would exist in an environment controlled by strangers.
 
iii.            Uniform Consequence: none of the courts have allowed pre-embryos to be implanted over the objection of one party. (pp1166)
iv.           Contract about embryos (pp1165):agree what would happen to the embryos in events of divorce or one party is involuntary to go through the whole plantation process Not entire safe about such Ks. Bottom line is Ct would NOT say embryos as baby human being or more than that.
General Rule: hold them to what they’ve decided, but sometimes this is not that fair.
 
V.                Body Part
Case: Moore v. Regents of U.C (pp 45)
·         Majority: Extension of conversion law will hinder research by restricting access to raw material. Let the legislature to soliciting advice and gather empirical evidence and determine such liability.
·         Arabian concurring: it degrades human persona to treat human tissue as a fungible article of commerce and allow it to be sold for profit.  (pp 49)
·         Broussard Concurring and dissenting:[ Prof. C agree] the majority approach simply bars P, the source of the cell from obtaining the benefit of cells’ value, but permit D, who alleged obtained the cell from P by improper means, to retain and exploit the full economic value of the cells from their ill-gotten free of common law liability of conversion. (pp50)
·         Mosk dissenting:   Every individual has a legally protectable property interest in his own body and its products. The limitation or prohibition [based on PP] diminished the bundle of rights that would otherwise attach to the property, but what remains is still deemed to be a protectable property interest.
 Majority approach allow research to treat the human body as a commodity deprived P’s interest in his body, and also leads to unjust enrichment. (pp51)
VI.                Human Remains
i.              Case: Wana the Bear (pp 1166)
Ct: Interpretation of CA statute; held not a public cemetery and reject descendants’ action to enjoin further excavation and other desecration of the property.
            Policy: balance the investment of the D construction company
Decision sent message that no complete justice for one person or certain group, the issue is achieve balance to reduce the injustice to least.
ii.             Statute Protection (pp 1169)
Descendants of the buried have an implied easement to access and may entitled to an injunction preventing the owner from defacing the graves.
Acquisition of Property
I.        Conquest
II.        Labor & Investment
III.        Gift
IV.        Family
V.        Possession (see Part I-2)
VI.        Transfer: Relativity of Title (see Part I-2)
VII.        Adversary Possession (see Part I-2)
 
I.        Conquest
i.              Johnson v. M’intosh(pp 4)
·         Holding: The act of discovery gives the discovering sovereign the exclusive title to discover and theirpower to extinguish the native title of occupancy.
·         “Conquest gives a title which the Courts of the conqueror cannot deny”
·         Policy –Consequence: Consequence of otherwise result would be anybody who purchased land from native American tribe could challenge the right of those who obtain from U.S government
·         [As the right of society, it must be admitted to depend entirely on the law of the nation”] (We are considering not just abstract justice/ the law of God/ moral rule, but also the principle government has adopted—the Rule is what U.S set down which we can’t undermine no matter how injustice )
·         If you’re judge set up to enforce rule of the government to maintain social order, there are certain limit what the judge can do to get around these rules and make decision
ii.             Tee-H