For the exam, know the basics, but focus on being able to read a case and being able to analyze a case and get the critical information out of the cases then synthesize multiple cases. Use similar cases and different cases.
Determine the similarity or difference and the rule you developed to make the distinction…
I. – 40 points – 40 or 50 minutes – Case on New Issue – 5 SA, 4TF, 4MC, 2 fact patterns, apply the case to facts
II. – 40 points – 40 minutes – Future Interest – No feetails, no surprises, 6Qs w/ multiple subparts, & a conveyance
III. – 40 points – 40 minutes – Black letter law – general and specific – 20 MC questions
IV. – 90 points – Type or write – 3 essays that come from fact pattern he gives us on Wednesday. – Brain storm in advance the arguments that both sides can make
a. Q1. Can Iraq and why
Do not give more than the question asks for
Do not write an essay on a yes / no question
Structure from key thoughts at the beginning of the semester
i. Acquisitiveness and aggression
iii. Property is power
iv. Promotes order & stability
vi. Relationship between people or people / government
viii. Bundle of legal rights
ix. Difference between monetary damages and injunction
x. Monetary damages – action in law – compensatory
Five Theories (or justifications) of Property
1. Possession – the first in possession gets to keep it
2. Labor Theory – Locke – property should be accorded to people in relation to their labor – Has some problems:
· Promote individual autonomy
· Human Flourishing
4. Social Justice/ Distributive Justice
5. Protecting rights of the weaker party
· Balance the maldistribution of property
Really no need for a rule just let the custom stay in place. Jack gets his space and his window smashed. Leave the custom as is, there are some types of disputes where there is no need for a rule. Rules need to be enforceable.
Five themes that run through the course
1. Antagonism and acquisitiveness:
Property is about acquisitiveness
2. Underlying assumptions about the functions of Property Law:
Order and Stability
Power – property and power are mutually reinforcing
Property is power
Property Law is about relationships between people or entities
Think about the relationship involved
4. Protects things of value:
Only protects of value
Public policy does not allow us to value certain things:
Can’t value or sell cocaine
Can’t value internal organs
5. Bundle of Rights
Over Used Analogy
Every piece of property does not have the same set of rights
These rights are not natural rights, they are assigned
Types of Property
1. Real Property
Owner not necessarily equal to possession, title
Present v. Future interest
Joint rights of ownership –Coop
Limitations on how you can use your real property****very important to our class****
2. Intellectual Property
We will spend two weeks on this form of property
Patents, copyrights, trademarks
3. Personal Property
Who owns abandoned property, who ever claims it
Engagement ring, is a gift conditioned upon marriage, if the engagement is terminated, he gets the ring back because.
Who owns it, different answers?
Stocks, Bonds, and Money
Your own body
Identity/ persona/ voice
ACQUISITION OF PROPERTY
I. Acquisition by Discovery (Native American Property Rights; Johnson v. M’Intosh)
A. Native Americans have no authority to convey title to land to which their only claim is “discovery” or first possession. (Obviously, today, Native Americans can convey title to land that they lawfully acquire from either public entities or private individuals).
B. Native Americans have a limited right of occupancy of lands acquired through “discovery” or possession, a right of occupancy subject to purchase only by the United States and conquest.
C. The United States can convey title of Native American land acquired through “discovery” or possession, but the transferee takes title to the land subject to the Native American right of occupancy.
II. Acquisition by Capture
A. Wild Animals
1. Actual Possession. The first to possess a wild animal on public land has rightful title to that animal. (Pierson v. Post). Possession is to trap, kill, or deprive a wild animal of its liberties. Note how the court likely ignored custom in Pierson v. Post. [Absent interference by fans, the rule in baseball is likely similar. The first to acquire possession of a foul ball has title to that baseball].
2. Constructive possession. A landowner has constructive possession of any wild animal on his or her property.
a. A landowner with constructive possession of a wild animal has superior title to that animal as against any trespasser.
b. Once a wild animal escapes a landowner’s property and enters public land, the animal is subject to capture and the rule of Pierson v. Post.
However, if a wild animal has the habit of returning to its original owner, the original owner does not lose its title to the animal if it esca
rticular circumstances, but a rule that permits A to drill without restrictions is more administrable for courts.
Reasonably limiting A’s drilling is (possibly) more fair to B but permitting A to drill without restrictions creates more certainty for the parties.
Reasonably limiting A’s drilling is more efficient (less technology used to drill oil beneath A’s and B’s land, marginal costs of drilling kept lower), but perhaps curtails innovation in drilling technology.
Reasonably limiting A’s drilling encourages conservation of resources, but not restricting A’s use encourages cultivation and use of natural resources.
You might find one set of policy arguments more convincing. But for your purposes this year in law school, I want you to begin to develop the skill of making policy arguments (and understanding the counter-arguments) for the position of one party or the other.
So you need to understand Problem (a) on three levels:
1. There are two possible rules that a court could adopt;
2. We derive those rules, in part, by distinguishing and analogizing the facts of the problem to facts in earlier cases (in this case, Pierson v. Post, but, in most cases, binding precedent).
3. There are policy arguments and counter-arguments in support of both rules.
· Finder’s rights depend on how the property is classified.
· 3 classifications: Abandoned, Lost, & Mislaid
Lost property is property that the true owner unintentionally lost or dropped. A subsequent possessor of that lost property has superior rights in that property as to everyone except the true owner. A subsequent finder of loss property has inferior rights or title in the property relative to the first finder. If property is lost on private premises, the finder of the property has an obligation to turn the property over to the owner of the premises. Additionally, most courts find that an employee has an obligation to turn over lost property found while acting during the scope of her employment to her employer.
Mislaid property is property that the true owner intentionally placed in a given location and then left. The owner of the premises on which mislaid property